People v. Smith

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 624 OPINION This appeal concerns two trials arising from Craig Smith's conduct of driving with alcohol in his system. Smith was arrested shortly after his vehicle was rear-ended by another vehicle. Approximately one hour after the accident, Smith's blood-alcohol level was 0.17 percent. Smith claimed this elevated level was the result of his drinking alcohol immediately after the accident. In the first trial, the jury acquitted Smith of driving with a *Page 625 blood-alcohol level of 0.08 percent or more (Veh. Code, 1 § 23152, subd. (b), hereafter sometimes referred to as "per se DUI" (driving under the influence)), but could not reach a verdict as to whether he drove under the influence of alcohol (§ 23152, subd. (a), hereafter sometimes referred to as "generic DUI"). At the second trial, the jury convicted Smith of driving under the influence of alcohol. Challenging this conviction on appeal, Smith argues that at the second trial the court violated…