As I read this opinion, I initially thought that it concerned an issue that should probably be reviewed by the California Supreme Court. You've got multiple different Court of Appeal opinions that conflict with each other -- and this latest missive deepens the split -- and that relate to an issue that arises frequently (e.g., when a drunk driver kills or injures others). There's no sign that the issue's going away, and the result shouldn't vary simply depending upon which panel the defendant happens to draw.
Which generally means that the California Supreme Court should grant review. Even if the opinion here is correct on the merits.
But as I reached the end of the opinion, I reconsidered that position.
I realized that the Legislature can easily solve this problem by amending the underlying statute. It's not a constitutional case, so a statutory fix would work. The Legislature also has a large incentive to do so since today's opinion is pro-defendant, and it's not like drunk drivers are the most popular constituency in the universe. If there's a problem, there's every reason to think that the Legislature is more than able to fix it. Plus there are dozens of district attorneys (plus the California Attorney General) aware of the problem and with access to the sympathetic ear of state legislators.
Given this fact, I decided that it's probably best to simply let this one sit. Faster, easier and clearer for the Legislature to solve this problem than it is for the California Supreme Court to wade in.
