Thursday, July 17, 2014

Velasquez v. Superior Court (Cal. Ct. App. - July 17, 2014)

There are worse things you can do than combining drinking and riding a bicycle.  But Justice Aldrich is correct.  It's still not a good thing.  As well as illegal.

Mind you, there's pretty darn good reason to believe that Jorge Velasquez, Jr. was not, in fact, guilty of the offense for which he was charged.  Mr. Velasquez was enjoying some alcoholic refreshment at Dodger's Stadium on -- appropriately enough -- April Fool's Day of 2013 when he decided to ride his bicycle home.  A bicycle with no brakes.  Did I mention it was April Fool's Day?

The good thing for Mr. Velasquez was that he wasn't drunk driving.  Plus he had just watched Clayton Kershaw beat the hated San Francisco Giants with a four-hit shutout on Opening Day.  Not bad.  Not bad at all.

The dark cloud behind this silver lining, however, was that a car pulled out in front of Mr. Velasquez on a downhill portion of his ride home, and when he swerved into the opposite lane to avoid the car, he smashed into a pedestrian, Sudha Russell, who broke several bones in her face and lost consciousness for ten days.  Suffice it to say that Mr. Kershaw had a much better April 1 -- and 2013 -- than Ms. Russell.

Not that Mr. Velasquez gets off scot free.  The police come and, according to the Court of Appeal's opinion, "Velasquez’s blood alcohol content was 2.18."  To be honest, I'm not really sure what Justice Aldrich means by that.  Maybe it's a typo.  Maybe it should read ".218".  'Cause the usual way we talk about these things is .08 for being per se DUI, .20 for being totally blotto, .50 for being dead, etc.  So on the usual scale, 2.18 would mean that Velasquez is four times the lethal level.  Or maybe Justice Aldrich is using something other than the usual scale.

Anyway, that confusion aside, the point is the Mr. Velasquez is intoxicated.  While biking.  Let's call it BUI.

So they charge him with a felony.  Under Section 23105 of the Vehicle Code.  Which covers "driving" while intoxicated and causing specified serious injuries.

You see the problem, right?  He ain't "driving".  Not the way we usually think, anyway.  Not a car.  (That's also putting entirely to one side the fact the prosecution erroneously charged him under Section 23105 even though that's actually the statute that sets forth the penalty, not the offense.  The actual statute they intended to charge him with is 23103.  "Reckless Driving".  With the relevant penalty then calculated under 23105.)

But he's "driving" a bike, so the statute allegedly applies, right?  You drive a car.  You drive a bike (sort of).  No problem.  (-Ish)

Except for one thing.  The relevant statute only covers someone who recklessly drives "a vehicle".  A vehicle, in this context, is usually a car.  So does it apply to bicycles?

You textualists out there may well say:  "Of course is does, Nimrod.  'Vehicle' means car, bike, scooter, Big Wheel, pretty much anything like that.  Common language."

Okay.  I hear you.  Let's perhaps agree to disagree on just how far a "vehicle" goes according to the plain -- and perhaps purportedly "unambiguous" -- meaning of that term.  (For example, a vase is a "vehicle" in which to hold flowers, but I'm pretty sure that's not what the statute covers.)

Because, fortunately, we don't have to resort to common language.  The Legislature helpfully expressly defined that term for us.  Section 23103 of the Vehicle Code says you're guilty if you "drive[] a vehicle upon a highway" in certain settings.  Section 670 of the Vehicle Code then defines the term "vehicle" as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

You see the problem now.  Bicycles are (or at least Mr. Velasquez's was) clearly "moved exclusively by human power".  Which means they're not "vehicles".  Which means that Section 23103 doesn't apply to him.  Which means he's not guilty of this offense.

Straightforward.  Couldn't be clearer.

Except the Court of Appeal holds that it's not true.

You see, using definitions is all well and good, but Justice Aldrich notes that there's a different statute (Section 21200) in the Vehicle Code that says that “[a] person riding a bicycle . . . upon a highway has all the rights and is subject to all the provisions applicable to the driver of a vehicle by this division, including, but not limited to, provisions concerning driving under the influence of alcoholic beverages or drugs."  And clearly, a driver can't drink and drive.  So, according to this statute, neither can a dude on a bicycle.

So the definition says it doesn't apply to bikes.  But a different statute says it does.  Which do you use?

The Court of Appeal holds that you apply the statute that makes Velasquez guilty of a felony.  Justice Aldrich's opinion persuasively applies both textual modes of interpretation as well as legislative history to establish that, yeah, the Legislature meant to permit prosecutions under 23103 to guys on bikes.  A fact complicated -- but not displaced -- by the pesky detail that the Legislature neglected to actually change the words (and definitions thereof) employed in that statute.

Justice Aldrich says that the more specific statute prevails over the more general definitions section.  I find that conclusion, and interpretive mode, eminently reasonable.  Justice Aldrich doesn't cite anything to support that conclusion.  But I'd refer to the maxim articulated by Section 3534 of the Civil Code -- "Particular expressions qualify those which are general" -- as entirely applicable.  Ditto for the caveat in Section 100 of the Vehicle Code, which says that “Unless the provision or context otherwise requires, these definitions shall govern the construction of this code."  Here, the statutory context requires a conclusion contrary to the identified dictionary application of the specified word.

So even though the statute requires a vehicle, and even though the statute says a bike's not a vehicle, it's still a vehicle.

Proof positive that textual interpretation doesn't merely require opening up a dictionary.  Or even the relevant provisions of the Code.