Schaefer v. Superior Court of San Bernardino County

Jun 23, 2023

OUTCOME: writ granted and trial judge ordered to grant motion to dismiss

4th District 2nd Division case # E081311---writ taken after denial by the Victorville trial department in case # FVI 1502890 of motion to dismiss Count 2 VC23153(b) after hung jury under rules of Colla ... teral Estoppel Defendant was charged with VC23153(a) and VC23153(b) along with PC12022.7 enhancements alleging that defendant drove under the influence with blood alcohol levels of 0.20/0.17/0.22/0.21 causing injury (Felony violations) to two persons during head on collision where driver had significant injuries requiring being in a wheelchair for extended time period. Defendant was alleged to have 2 separate prior DUI convictions within prior 10 years. The court used 3 verdict forms for each count consisting of (Guilty of Felony)(Guilty of lesser included Misdemeanor non-injury DUI or 0.08)(Not Guilty). With the jury instructions and forms given, a juror following the instructions were prevented from finding that the government had not proven causation for the crash/injuries on unless they also agreed that the defendant was either guilty or not guilty of the actual DUI or 0.08 lesser offense. Jurors found the defendant guilty only of a straight Misdemeanor DUI charge as a lesser included offense to the Count 1 VC23153 DUI/Injury charge and, in doing so, the jurors had necessarily determined that the government had not proven the crash/injury causation element. Jurors realistically found the defendant guilty of DUI because the defendant was on video making a statement indicating that he was drunk. Due to problems with improper collection of breath samples, the government did not get the benefit of a jury instruction that normally allows jurors to simply assume that the defendant's alcohol level at the time of driving was the same as it was at the time of the test. Most likely because of this, the jurors were split as to whether the 0.08% blood alcohol level had been proven during their deliberations and they were not given an option of finding the defendant not guilty of having a 0.08% alcohol level while causing a crash/injury. In reality, the jurors could not find the defendant guilty of Count 2 VC23153(b) over 0.08 causing injury because they agreed that injury causation hadn't been shown. We know this because jurors could only find the defendant guilty of the lesser offense as to Count 1 DUI if they had all 12 agreed that the government had not shown the injury causation element. Further, around 1/2 of the jurors believed that the 0.08% alcohol level had been proven while other 1/2 of jurors did not believe the government could prove guilt based on the improper breath testing. The defendant was convicted on the Misdemeanor straight non-injury DUI and faced retrial on the Felony driving w/ 0.08% causing injury charge. I filed a motion to dismiss the Count 2 Felony charge arguing that retrial by a 2nd jury was barred by the U.S. Constitution's double jeopardy provision known as "collateral estoppel" because the jurors, with their verdict on Count 1, had necessarily decided in the defendant's favor on the injury causation element and that the identical injury causation element applied in the Count 2 driving w/ 0.08% causing injury charge. The DA opposed and the judge ruled against my motion setting the matter for retrial on the Felony Count 2 that jurors had not entered verdicts on. I filed a writ arguing the same points in the 4th District and the appellate court determined that the trial judge had improperly denied my motion, granted my writ and ordered the trial court to dismiss the remaining Felony count.