The Right Coast

January 19, 2005
New Blog on California Appellate Decisions
By Mike Rappaport

Our colleague, Shaun Martin, has started a new blog on California Appellate Decisions. In contrast to many law professors, Shaun really knows a great deal about the practice of law -- and he actually reads all of the California appellate decisions. His blog consists of commentary on those decisions. It is quite interesting and should be of some use to real lawyers. Here is one of his posts:

Karli Bobus is 16 years old and blows a .02 -- about one beer -- when she's stopped by the cops. (The officer testifies that she reeks of alcohol and is slurring her words -- hardly consistent with blowing a .02 -- but that's another story.) That's below the usual .08 limit, but Karli's under 21 (and hence the limit is .01), so they pull her license. Karli challenges the suspension, and at the hearing, she admits that her friends were drinking but denies that she drank anything. She nonetheless admits that she had a cold and had taken a capful of cough syrup.

I have no problem with the first two operative paragraphs of the opinion, which upholds the suspension on the ground the trial court could reasonably have disbelieved Karli and concluded that she had indeed been drinking with her friends. Done. But the opinion goes on and holds that, even if she hadn't been drinking, she's still guilty, because a capful of cough syrup is still an "alcoholic beverage" since, after all, it's a beverage that contains alcohol. So there.

Of course, if cough syrup is indeed an alcoholic beverage, this means that you violate the open container law if you have an open bottle of cough syrup in your car; indeed, anyone under 21 is guilty even if the cough syrup is closed and factory sealed! Justice Jones responds only that Karli wasn't charged with this offense, and that she'll "leave for another day the question of whether transportation of cough syrup might support the specific offenses Bobus has identified." But it's the same definition of "alcoholic beverage" for all of these statutory offenses; if cough syrup is an "alcoholic beverage" for one, it's also an "alcoholic beverage" for the others!

Don't think it's just cough syrup, either. Tons of stuff has alcohol in it. Think of that next time you're driving down the road with your Strawberry Bananna Smoothie, which -- like so many other things -- is typically made with vanilla extract, which contains alcohol.

A bad, bad case.
The case raises important issues of textualism, but from my perspective Shaun is right even from a textualist perspective. There is an ordinary meaning of "alcoholic beverage" that excludes cough syrup. So Justice Scalia could have come to the same result as Shaun.