Orange County, California Laws and a DUI Double Jeopardy

A frequent issue presented by the so-called "per se" statutes comes from the common practice of prosecuting a defendant for violating both the traditional and the per se offenses. While the defendant cannot constitutionally be punished for both offenses, California law allows to be convicted of both.

The topic of whether or not a defendant can be convicted of both offenses under separate subdivisions of the California Vehicle Code was debated in a California case, People v. Cosko, 152 Cal. App. 3d 54, 199 Cal. Rptr. 289 (1984).

Appellant contends that he was improperly convicted of two counts of driving under the influence, one for violating Vehicle Code section 23153, subdivision (a), and another for violating subdivision (b) of the same section based on one incident. We conclude that the Legislature added the 0.10 percent blood alcohol offense subdivision (subd. b) to facilitate proof of driving under the influence and that it did not intend a single driving under the influence incident to result in two driving under the influence convictions under Vehicle Code section 23153.

We are not concerned with the question of double charging, which is within the prosecutor's discretion, or with double punishment, which is clearly prohibited by Penal Code section 654. The question of double conviction, however, requires analysis of the legislative intent behind the addition of the 0.10 percent subdivision. [Id. at 290.]

The court finally decided that the legislature intended those accused of both offenses could be convicted of both. This conclusion was derived from an investigation of the legislative history and the sentencing scheme of the statute. And so, the court stated:

The general rule in the case of an improper combination of convictions is that the less serious offense is vacated while the more serious stands. (E.g., People v. Cole, supra, 31 Cal. 3d at p.582.) Since neither the under the influence offense nor the 0.10 percent offense is more serious than the other, the determination which conviction should stand is a discretionary matter. [Id. at 291-292.]

Following the Cosko ruling, the California court commanded it was not to be published. Not long after, though, a second, similar case was published – People v. Duarte, 161 Cal. App. 3d 438 (1984). A California appellate court ruled that a defendant can be held under both statutes. The catch is that the defendant is not penalized for the second conviction until the first sentence is complete. If future DUI convictions occur, only one of the convictions can be used as a previous conviction for reasons of heightened punishment.

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