The District Attorney’s Office decided not to file drunk driving charges against the San Carlos Vice Mayor, Andy Klein, according to ktvu.com.
Klein was sitting in his car on the shoulder of the Edgewood Road exit off Interstate 280 talking on his phone when a San Mateo County Sheriff’s deputy stopped to see if his car was disabled. The deputy suspected Klein was under the influence. Field sobriety tests (FST’s) were performed at the scene and Klein was subsequently arrested. He then provided a blood sample which later came back with a .07 blood alcohol concentration, or BAC, result.
The legal limit in California is a .08 BAC. Vehicle Code (VC) Section 23152(a) does not mention the .08 BAC. It merely states: “It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.”
The statute also creates a rebuttable presumption that the defendant was not under the influence if his or her blood alcohol level was less than 0.05 percent, (see People v. Gallardo.)
So to be convicted of the (a) section, the prosecution only has to prove that the defendant drove a vehicle and at the time of driving the defendant was under the influence.
The jury instructions, CALCRIM 2110, state that a person is under the influence if his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances. The manner in which a person drives is not enough by itself to establish whether the person is or is not under the influence; however, it is a factor to be considered, in light of all the surrounding circumstances, in deciding whether the person was under the influence.
In this case, even though Klein’s BAC was a .07, the District Attorney could have decided to prosecute under VC Section 23152(a). Apparently, the DA did not think there was enough evidence to support the theory that Klein was under the influence and the charges were dropped.
[This is a follow-up to the initial story that was posted on May 17th, 2011, entitled “Drunk Driving Charges For Vice Mayor of San Carlos“.]
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