Misdemeanor diversion law sparks confusion, disparities in DUI cases

A caller California instrumentality that allows judges to assistance diversion to first-time misdemeanor DUI offenders has created a quagmire successful the ineligible system, leaving transgression defence attorneys and prosecutors warring implicit its mentation and judges conflicted implicit a deficiency of clarity.

One lawyer described the law, introduced past twelvemonth arsenic Assembly Bill 3234 by Assemblyman Phil Ting, D-San Francisco, arsenic the astir litigated contented successful the authorities since it took effect connected Jan. 1. District attorneys successful Riverside, Los Angeles and Sacramento counties person challenged it successful their Superior Court appellate divisions.

Opponents reason that the caller law, which falls nether the authorities Penal Code, conflicts with an existing authorities Vehicle Code section that precludes judges from granting diversion to DUI offenders successful lieu of transgression penalties.

At the judicial level, it has created glaring disparities successful who is granted diversion — which allows for eventual dismissal of charges — and who isn’t, fundamentally based connected which justice a suspect appears earlier and successful which region the charges were filed.

Riverside County District Attorney Mike Hestrin (File photograph by Will Lester, Inland Valley Daily Bulletin/SCNG).

‘Flapping successful the wind’

Prosecutors, transgression defence attorneys and lawmakers person been seeking clarification from higher courts oregon caller authorities to resoluteness the conflict.

“This is what is happening now. It’s similar a wildfire going done the courts,” said Lara Gressley, a transgression defence lawyer successful Riverside specializing successful DUI cases. In June, she petitioned the authorities Supreme Court to measurement successful aft a Los Angeles Superior Court justice denied her question to assistance diversion to a client.

The Supreme Court declined to reappraisal Gressley’s case, which she attributes to the lack of immoderate little tribunal appellate rulings connected the issue.

Gressley said the caller instrumentality is vexing judges who are having a hard clip deciding which mode to go.

“They’re continuing cases for months astatine a clip successful hopes determination volition beryllium a tribunal of entreaty opinion,” Gressley said. “Everybody wants a tribunal of entreaty ruling, due to the fact that that is binding crossed each courts successful California. Now we’re near conscionable flapping successful the wind. It has to get figured out.”

In the courts

Since Ting’s authorities went into law, Superior Court judges person had discretion to assistance diversion successful misdemeanor DUI cases mostly based connected the severity of the offense, specified arsenic the defendant’s humor intoxicant level, speed, wherever the discourtesy occurred and whether immoderate spot was damaged.

Pomona Police Department Detective J. Dolgovin monitors a DUI checkpoint successful Pomona connected Dec. 21, 2018. (Photo by Will Lester, Inland Valley Daily Bulletin/SCNG)

DUI offenses that origin wounded to different idiosyncratic are usually charged arsenic felonies and bash not prime for diversion nether the law.

Prosecutors instantly began filing motions wrong their respective Superior Court appellate divisions maintaining that DUI offenders bash not suffice for diversion owed to  Vehicle Code Section 23640. Some appellate part judges person sided with prosecutors, and others person not.

On July 27, a three-judge sheet successful Riverside Superior Court’s appellate part denied a question by District Attorney Mike Hestrin, voting 2-1 that DUI defendants are, successful fact, eligible for pretrial diversion nether the caller law. Hestrin and Senior Deputy District Attorney Chris Bouffard filed the question aft judges granted diversion to 3 defendants successful abstracted DUI cases.

Two weeks anterior — connected July 14 successful Los Angeles County Superior Court — appellate part judges unanimously ruled that DUI defendants bash not suffice for diversion. They maintained that erstwhile the Legislature approved AB 3234, it was “silent connected whether misdemeanor diversion tin beryllium granted successful driving nether power cases,” and that the caller instrumentality did not repeal the Vehicle Code provision.

In Orange County Superior Court, immoderate appellate part panels person concluded that misdemeanor DUI offenses bash not suffice for diversion, and others person declined to perceive petitions that rise the issue, tribunal spokesperson Kostas Kalaitzidis said successful an email.

Disparity successful rulings

In her petition to the Supreme Court, Gressley said the deficiency of an appellate tribunal determination connected the struggle has resulted successful a “vast disparity successful rulings” by proceedings tribunal judges crossed the state.

“The deficiency of guidance connected the questions has resulted successful inconsistent rulings passim the state,” Gressley said successful her petition.

She cited 11 DUI cases from 8 Superior Courts crossed the state, including Riverside, Orange and Los Angeles counties, successful which 5 defendants were granted diversion and 5 were denied. In the 11th case, a justice said further reappraisal was necessary.

More getting diversion

In Riverside County, much than twelve DUI defendants person been granted diversion since the caller instrumentality took effect, said Deputy Public Defender Souley Diallo. Some judges, however, are inactive reluctant to assistance diversion adjacent aft the favorable appellate part ruling connected July 27.

Orange County Public Defender Martin Schwarz said misdemeanor DUI convictions are unsocial successful that they transportation ample mandatory fines. While possibly not consequential to radical of means, they bash person a melodramatic effect connected those his bureau tends to support the most: the poor.

While Schwarz would not remark connected however galore DUI defendants person been granted diversion truthful far, helium said the bulk of requests person been denied.

While helium could not supply circumstantial numbers, San Bernardino County Deputy Public Defender Geoff Canty said he’s lone seen “about a handful” of DUI offenders granted diversion since January. He embraces the caller law.

“It follows the trends that we are seeing successful California, giving a assortment of entree to services and treating underlying causes that bring radical into our transgression justness system,” helium said. “It is acold much beneficial than being punitive.”

San Bernardino County District Attorney Jason Anderson disagrees. Due to the precocious recidivism complaint of DUI offenders and the nationalist information hazard they impose, helium said, making a first-time condemnation instrumentality is important to deter a 2nd instance. Diversion, helium argues, amounts to “giving radical a walk connected a first-time DUI.”

Patricia Rillera, California authorities enforcement manager for Mothers Against Drunk Driving. (Photo courtesy of M.A.D.D.)

M.A.D.D. reacts

Patricia Rillera, California authorities enforcement manager for Mothers Against Drunk Driving, said AB 3234 not lone gives DUI offenders a escaped pass, but undoes a batch of what her enactment has achieved successful its much than 40 years of existence.

“From our perspective, it undermines the seriousness of the discourtesy and the advancement that’s been made implicit the years to trim DUIs and DUI-related deaths,” Rillera said.

She said drivers nether the power termination much than 1,000 victims a twelvemonth successful California and much than 10,000 nationally, and she said she sees the aforesaid repetition DUI offenders showing up for court-ordered classes implicit and implicit again.

But immoderate question the punitive quality of California’s DUI laws, and whether they are truly that effectual successful deterring offenders from repeating past mistakes.

During a Senate Public Safety Committee proceeding successful July,  Sen. Nancy Skinner said that portion prosecution of DUI offenses has go much and much punitive implicit the years, determination has been lone a 4% driblet successful DUI incidents successful the past 22 years.

“I’ve not yet seen immoderate benignant of survey that shows that the diversions are little effectual successful presumption of the simplification of DUIs,” Skinner said. “We’d evidently request much information to afloat recognize it, but there’s immoderate denotation that immoderate of the diversion programs are much effective.”

Legislative action

Legislatively, bills person been offered to clarify oregon tighten Ting’s bill.

SB 421, introduced by Sen. Steven Bradford, D-Gardena, would bounds diversion to those who person nary anterior convictions for driving nether the power and person not completed diversion wrong the past 10 years. For those who are granted diversion, the measure would necessitate the suspect to instal an ignition interlock instrumentality and enactment successful acquisition and counseling programs.

Two cardinal Senate committees person signed disconnected connected Bradford’s bill.

Another bill, AB 3234 by Assemblyman Tom Lackey, was designed to exclude DUIs nether Ting’s diversion law. The measure was rejected by a Senate committee successful July, however.

Lackey said helium would bring up the authorities against successful the adjacent session. For him, the combat is personal. As a retired CHP serviceman who worked 28 years successful L.A. County, helium saw dozens of accidents caused by DUI drivers, and notified much than 40 families that their loved ones had died successful DUI-related accidents.

“I personally made implicit 1,000 (DUI) arrests. I person virtually seen hundreds of tragedies associated with impaired driving, and it’s each preventable, and that’s the large tragedy,” Lackey said.

Change of heart

When Gov. Gavin Newsom signed Ting’s measure into instrumentality connected Sept. 30, 2020, helium expressed reservations astir DUIs being among the qualifying offenses.

“I americium acrophobic that the transgression of driving nether the power was not excluded from the misdemeanor diversion program. I volition question to expeditiously remedy this contented with the Legislature successful the adjacent legislative session,” helium said astatine the time.

The unintended consequences of the instrumentality and its ripple effects crossed the authorities successful the past 9 months has prompted Ting to person a alteration of heart.

When Lackey’s AB 282 went earlier the Assembly connected May 27, helium was among much than 60 Assembly members who voted yes connected it. The measure passed, with lone 9 Assembly members voting no. However, it was rejected 2 months aboriginal erstwhile it got to the Senate Public Safety Committee.

Ting said that erstwhile his measure was moving done the legislative process, the superior concerns raised implicit which offenses would beryllium eligible for diversion were related to home unit and intersexual assault. DUI offenses did not travel up during discussions, helium said successful an email.

He said helium was chiefly acrophobic astir harsh attraction for first-time DUI offenders and a “one-size-fits-all attack to our transgression justness strategy that hasn’t worked.”

But present he’d similar to remedy the law’s flaws.

“The legislative process allows for statement and compromise. That doesn’t extremity conscionable due to the fact that a instrumentality took effect,” Ting said. “I’m ever consenting to listen. But 1 lawmaker doesn’t person the powerfulness to marque changes. It takes a bulk of some houses and support from a politician to marque it happen.”