One recurrent problem with the new per se statutes stems from the common prosecutorial practice of charging a defendant with both the traditional and the per se offenses. (The phrase "per se" is also applied to the DMV's "administrative per se" (APS) driver's license suspension automatically imposed by the arresting officer where the driver has a .08% blood alcohol test result.) Although the defendant may not be punished for both offenses, many jurisdictions have permitted him to be convicted of both.
A California case, People v. Cosko, 152 Cal. App. 3d 54, 199 Cal. Rptr. 289 (1984), discusses the issue of whether the defendant could be convicted twice under separate subdivisions of the California Vehicle Code. The driver's argument was presented as follows:
Appellant contends that he was improperly convicted of two counts of driving under the influence, one for violating Vehicle Code section 23153, subdivision (a), and another for violating subdivision (b) of the same section based on one incident. We conclude that the Legislature added the 0.10 percent blood alcohol offense subdivision (subd. b) to facilitate proof of driving under the influence and that it did not intend a single driving under the influence incident to result in two driving under the influence convictions under Vehicle Code section 23153.
We are not concerned with the question of double charging, which is within the prosecutor's discretion, or with double punishment, which is clearly prohibited by Penal Code section 654. The question of double conviction, however, requires analysis of the legislative intent behind the addition of the 0.10 percent subdivision. [Id. at 290.]
The court concluded that the legislature did not intend that routine driving under the influence convictions would result in two convictions. The court based this opinion on an examination of the legislative history and the sentencing scheme of the statute. The court therefore held:
The general rule in the case of an improper combination of convictions is that the less serious offense is vacated while the more serious stands. (E.g., People v. Cole, supra, 31 Cal. 3d at p.582.) Since neither the under the influence offense nor the 0.10 percent offense is more serious than the other, the determination which conviction should stand is a discretionary matter. [Id. at 291-292.]
The Cosko decision was subsequently ordered by the California court not to be published. However, a later case was published. In People v. Duarte, 161 Cal. App. 3d 438 (1984), a California appellate court held that a defendant may be convicted under both statutes. However, he may only be punished for one; the judge must choose which one. Technically, punishment for the second conviction is temporarily stayed until after completion of sentence on the first — at which time the stay is made permanent. Also, only one of the convictions may be used as a prior conviction for purposes of enhanced punishment on future DUI convictions.