Boonville or Bust

Dominick Ventimiglia and his Elk Grove family were heading out to a Mendocino Coast beach house for Christmas. Mr. Ventimiglia (the g is silent) was driving a Chevy Tahoe with his wife, his mom, his daughter and his son, His stepfather was piloting a Dodge Caravan with the family’s five dogs. They were traveling on Highway 128 westbound towards Boonville.

Leif Ibsen, driving a Toyota Tacoma, was speeding up from behind the Elk Grove contingent, hustling to get to Boonville before the gas station closed he would say later, although the Redwood Drive-In is open until 9pm for regular business and it was only 5:15pm on December 21st, 2016, the longest night of the year.

Ibsen passed the father-in-law’s Caravan, then the Ventimiglia’s Tahoe,  abruptly veering back into the westbound lane, although there was no on-coming traffic, but managing to hit the Ventimiglia’s Tahoe, nearly forcing it off the road.

Ibsen had cut back in too soon, and the reason he had, the responding CHP officers concluded was because his depth perception had been impaired from smoking pot.

Ibsen was arrested for driving under the influence of marijuana.

Fourteen months later, just last week, the case went to trial. Deputy DA Sam Houston Porter was prosecuting. He called Mr. Ventimiglia as his first witness.

Deputy DA Porter for the prosecution: “What was the weather like?”

Ventimiglia: “It was wintry, overcast and slightly foggy and kinda windy, so I was going 10 miles per hour under the speed limit. Also, it was getting darker and my stepfather didn’t have a GPS, so I didn’t want to lose him.”

A shudder of apprehension passed through the courtroom at the thought of the poor man from Elk Grove traveling the wilds of 128 without a GPS.

Ventimiglia: “I looked up at my rearview mirror, coming out of a bend, and he [the stepfather in the Caravan] wasn’t there, but this Toyota Tacoma was right on my heels — it was so close I couldn’t even see its headlights — and my mom was like, ‘Just pull over and let him by’ but like where? It was all mountain on one side and a huge drop off on the other side, so like where do you pull over?”

DA Porter: “What did you do?”

Ventimiglia: “Well, my mom was like ‘just pull over as soon as you can’ when we started to go into a curve and the Toyota swerves out into the on-coming lane, then it comes back over the double-yellow line and hit the Tahoe near the front tire.”

Porter: “The Toyota hit the vehicle you were driving?”

Ventimiglia: “Yes, but he didn’t break away. Instead, he started to push us toward the drop off and I was like oh my god, he’s pushing us off the road! So I turned into him and hit the brakes and, the Tahoe being much bigger than the Tacoma, he skidded and I think lifted our vehicle up a bit, then he fishtailed and sped away.”

Porter: “How close did you get to the drop off?”

Ventimiglia: “I can only tell you what I heard: I heard gravel. So I can’t say I was going over but the Tahoe started to lean, and I was like oh my god he’s pushing us over! That’s when I hit the breaks and turned into him.”

Porter: “Where did he hit you?”

Ventimiglia: “Inside of the front tire. I just thought oh my god he’s hit us, and then the Tahoe was leaning, and if I hadn’t turned out we would have went over and down the embankment into I don’t even know what.”

Porter: “The Tacoma fishtailed and took off?”

Ventimiglia: “Yes.”

Porter: “What did you do?”

Ventimiglia: “I followed it! It was shocking to me, I was flashing my lights and honking my horn at him and he was trying to evade us!”

Porter: “How far did you follow him?”

Ventimiglia: “It was before Boonville. There was a lot going on in the car with the kids screaming and my wife calling 911, so I guess maybe two minutes went by.”

Porter: “Did you see any areas where he could have pulled over?”

Ventimiglia: “Oh, absolutely.”

Porter: “But he finally did pull over?”

Ventimiglia: “Yes. I was honking my horn, flashing my lights, I had my flashers going, everything, and so I pulled in front of him — he didn’t know my stepfather was directly behind him [having somehow managed without a GPS not to end up in Wyoming].”

Porter: “What did you do at that point?”

Ventimiglia: “I got out and went over there and I was like ‘Dude, like you hit us’ and he was all like, ‘No, I thought I hit a deer’ and I was like”—

Porter: “Let me stop you right there. Do you see that person in court today?”

Ventimiglia: “That’s Leif right there, in the dark suit coat.”

Porter: “May the record reflect the witness has identified the defendant?”

Judge Cindee Mayfield: “He has.”

Porter: “What did you do after you got out of your car and spoke to the defendant?”

Ventimiglia: “I told him to stay in his car but he got out and called his friends on his cell telling them that”—

Defense Attorney Steve Spiegelman: “Objection. Hearsay.”

The lawyers disappeared with the judge into chambers for a discussion outside the presence of the jury to discuss the finer points of the obvious.

On cross, Spiegelman, for the defense, managed to ignore that the whole vehicular show was moving steadily west to Boonville in the dark, found it curious that there was no place for the out-of-town witness to pull over when his mother was urging him to do so, yet there were plenty of places for his client to pull over when being chased by the witness.

Officer James Irwin of the CHP was called.

Officer Irwin used to be mayor of Lakeport and had only been in a CHP uniform for about a month when the incident occurred. As he was waiting in the hall to be called, some of his fellow troopers were ribbing him about his zeal for writing tickets, as he apparently holds some kind of regional record. Irwin said on the stand that he thought he smelled alcohol on Mr. Ibsen, but a breath test proved this to be false — he blew a .00 — but Irwin still gave Ibsen a field sobriety test. Then Officer Rowan, a Drug Recognition Expert (DRE) arrived on scene and took Ibsen over the hill to the CHP HQ in Ukiah where he was given a series of tests to determine what, if anything, the vehicular Viking was under the influence of.  Officer Rowan decided that Ibsen must have been smoking pot, and charged him with DUI-Pot, setting off a battle of the experts that was not finished by the end of the week last Friday, and will likely still be on-going by press time.

The charge for a pot DUI is in section 23152(E) of the Vehicle Code and with the legalization of recreational marijuana we are likely to see more and more of these charges brought into court. The Field Sobriety Test (FST) for alcohol consists of a series of roadside physical tests developed in the 1970s, such as the Horizontal gaze nystagmus test which looks for involuntary jerking of the eyeball in tracking a pen or forefinger of the testing officer moving side to side in front of the suspected driver. Then there’s the walk and turn, designed to detect staggering when walking a straight line, followed by the one-leg stand, to look for balance, an internal clock test, to estimate 30 seconds, and a touch the tip of the nose, to detect coordination.

Drug Recognition Experts use these same tests, except in a more controlled environment, such as the CHP office on Orchard Street in Ukiah, where they can also check for blood-pressure, pulse, pupil dilation, body temperature and a whitish coating on the tongue, colloquially known as “cottonmouth.” The difficulty in this case was the lag-time in how long it took for Mr. Ibsen to pull over, another wait for the CHP officers to arrive, the time for the initial investigation, the ride over the hill, and finally, four hours later, the drug evaluation FST at CHP HQ, Ukiah. By which time the alleged ‘high’ would have worn off.

Spiegelman for the defense brought in an expert of his own, Debra Erickson, formerly of the CHP; and so well versed on the Field Sobriety Test and DUI is this consultant that for many years she actually taught the course. Ms. Erickson spent nearly 30 years in uniform and made over 4000 DUI arrests for which Mothers Against Drunk-Driving gave her a medal, and she has been teaching the Drug Recognition Expert class since its inception in the mid 1980s. To say that she impressed the jury with her credentials and expertise would be an understatement, and she even neutralized Deputy DA Porter’s aspersion that she was a hired gun by telling the jurors that she charges the same amount as she used to get paid for coming to court when she worked for the CHP.

In short, it was looking grim for the prosecution by the time Ibsen left the witness stand on Thursday afternoon, having said he told the officers about his medical conditions — a pin in his ankle and a recent knee surgery — that would have explained the poor performance he turned in on the Field Sobriety Test, both in the field and at CHP HQ with the Drug Recognition Expert.

On Friday morning Deputy DA Porter sent an email to  Spiegelman advising him that if his client didn’t cut the trial short and plea to the charge, the People would be filing perjury charges against him for lying on the stand.

When Spiegelman came into court Friday morning he was livid with indignation and told Judge Mayfield he didn’t take kindly to threats, alleging prosecutorial misconduct and vindictiveness. Issuing his own threat, Spiegelman said he was going to call for an investigation into the CHP officers involved.

Deputy DA Porter said, “It wasn’t a threat; it was an offer.”

Speigelman said, “I don’t take kindly to threats. They supposedly have a video that will prove perjury and I won’t put up with this kind of intimidation tactics. I haven’t seen this video and I object.”

Porter: “The defense has had the video all along. It’s the one from the Crown Vic on the way over the hill. The defendant said under oath that he told the officer over and over about his medical condition — and there’s not a word about it on the video. That’s perjury and I take it very seriously. To lie, to blatantly lie, is very serious to me. I could have said nothing; instead, I took the courtesy of calling counsel this morning to make this offer. His voice mail was full so I emailed him. Then he called me back and blurted out that ‘Your officers perjured themselves on the stand’ which is not true and a very serious charge.”

Judge Mayfield asked everyone to calm down. “In the adversarial system people say things to advance their interests; this is fairly common in litigation of any kind to testify in a way the other side feels is untruthful.”

Judge Mayfield failed to note, however, that only the DA can file perjury charges.

Porter: “We will definitely be filing perjury charges.”

Mayfield: “Did you make any threats?”

Porter: “I made an offer.”

Spiegleman: “That’s not the way it was presented to me. It was more like, ‘Your client committed perjury, you have two options: Either you plea out or I file perjury charges’.”

Porter’s staff went to work on the transcript of the video for the jury (to read along as the video played), and Spiegelman asked for more time, but wasn’t given any, since he had had the video since July. The judge herself wanted the electronic (so many court reporters have been out sick with the flu, that an electronic recording was used) transcript of Ibsen’s testimony played back so she could listen again to the alleged perjury.

By the end of the day it was obvious to everyone that the trial would go into another week. The DUI aspect of the legalization of marijuana is just another of the many bureaucratic entanglements this cultural innovation has caused. Ah, for the Good Old Days…