A brand new California regulation that enables judges to grant diversion to first-time misdemeanor DUI offenders has created a quagmire within the authorized system, leaving felony protection attorneys and prosecutors warring over its interpretation and judges conflicted over an absence of readability.
One lawyer described the regulation, launched final yr as Meeting Invoice 3234 by Assemblyman Phil Ting, D-San Francisco, as probably the most litigated concern within the state because it took impact on Jan. 1. District attorneys in Riverside, Los Angeles and Sacramento counties have challenged it of their Superior Courtroom appellate divisions.
Opponents argue that the brand new regulation, which falls beneath the state Penal Code, conflicts with an present state Vehicle Code section that precludes judges from granting diversion to DUI offenders in lieu of felony penalties.
On the judicial stage, it has created obtrusive disparities in who’s granted diversion — which permits for eventual dismissal of costs — and who isn’t, primarily primarily based on which decide a defendant seems earlier than and wherein county the fees had been filed.
‘Flapping within the wind’
Prosecutors, felony protection attorneys and lawmakers have been looking for clarification from larger courts or new laws to resolve the battle.
“That is what is going on now. It’s like a wildfire going by way of the courts,” mentioned Lara Gressley, a felony protection lawyer in Riverside specializing in DUI instances. In June, she petitioned the state Supreme Courtroom to weigh in after a Los Angeles Superior Courtroom decide denied her movement to grant diversion to a shopper.
The Supreme Courtroom declined to assessment Gressley’s case, which she attributes to the absence of any decrease court docket appellate rulings on the difficulty.
Gressley mentioned the brand new regulation is vexing judges who’re having a tough time deciding which strategy to go.
“They’re persevering with instances for months at a time in hopes there might be a court docket of attraction opinion,” Gressley mentioned. “Everyone desires a court docket of attraction ruling, as a result of that’s binding throughout all courts in California. Now we’re left simply flapping within the wind. It has to get discovered.”
Within the courts
Since Ting’s laws went into regulation, Superior Courtroom judges have had discretion to grant diversion in misdemeanor DUI instances largely primarily based on the severity of the offense, such because the defendant’s blood alcohol stage, velocity, the place the offense occurred and whether or not any property was broken.
DUI offenses that trigger damage to a different particular person are normally charged as felonies and don’t high quality for diversion beneath the regulation.
Prosecutors instantly started submitting motions inside their respective Superior Courtroom appellate divisions sustaining that DUI offenders don’t qualify for diversion resulting from Automobile Code Part 23640. Some appellate division judges have sided with prosecutors, and others haven’t.
On July 27, a three-judge panel in Riverside Superior Courtroom’s appellate division denied a movement by District Legal professional Mike Hestrin, voting 2-1 that DUI defendants are, in reality, eligible for pretrial diversion beneath the brand new regulation. Hestrin and Senior Deputy District Legal professional Chris Bouffard filed the movement after judges granted diversion to a few defendants in separate DUI instances.
Two weeks prior — on July 14 in Los Angeles County Superior Courtroom — appellate division judges unanimously dominated that DUI defendants don’t qualify for diversion. They maintained that when the Legislature permitted AB 3234, it was “silent on whether or not misdemeanor diversion may be granted in driving beneath affect instances,” and that the brand new regulation didn’t repeal the Automobile Code provision.
In Orange County Superior Courtroom, some appellate division panels have concluded that misdemeanor DUI offenses don’t qualify for diversion, and others have declined to listen to petitions that increase the difficulty, court docket spokesman Kostas Kalaitzidis mentioned in an e mail.
Disparity in rulings
In her petition to the Supreme Courtroom, Gressley mentioned the shortage of an appellate court docket resolution on the battle has resulted in a “huge disparity in rulings” by trial court docket judges throughout the state.
“The dearth of steering on the questions has resulted in inconsistent rulings all through the state,” Gressley mentioned in her petition.
She cited 11 DUI instances from eight Superior Courts throughout the state, together with Riverside, Orange and Los Angeles counties, wherein 5 defendants had been granted diversion and 5 had been denied. Within the eleventh case, a decide mentioned additional assessment was obligatory.
Extra getting diversion
In Riverside County, greater than dozen DUI defendants have been granted diversion for the reason that new regulation took impact, mentioned Deputy Public Defender Souley Diallo. Some judges, nonetheless, are nonetheless reluctant to grant diversion even after the favorable appellate division ruling on July 27.
Orange County Public Defender Martin Schwarz mentioned misdemeanor DUI convictions are distinctive in that they carry massive obligatory fines. Whereas maybe not consequential to individuals of means, they do have a dramatic impact on these his workplace tends to defend probably the most: the poor.
Whereas Schwarz wouldn’t touch upon what number of DUI defendants have been granted diversion to date, he mentioned nearly all of requests have been denied.
Whereas he couldn’t present particular numbers, San Bernardino County Deputy Public Defender Geoff Canty mentioned he’s solely seen “a couple of handful” of DUI offenders granted diversion since January. He embraces the brand new regulation.
“It follows the developments that we’re seeing in California, giving quite a lot of entry to companies and treating underlying causes that carry individuals into our felony justice system,” he mentioned. “It’s much more useful than being punitive.”
San Bernardino County District Legal professional Jason Anderson disagrees. Because of the excessive recidivism fee of DUI offenders and the general public security danger they impose, he mentioned, making a first-time conviction stick is essential to discourage a second occasion. Diversion, he argues, quantities to “giving individuals a go on a first-time DUI.”
Patricia Rillera, California state government director for Moms Towards Drunk Driving, mentioned AB 3234 not solely offers DUI offenders a free go, however undoes a variety of what her group has achieved in its greater than 40 years of existence.
“From our perspective, it undermines the seriousness of the offense and the progress that’s been made through the years to cut back DUIs and DUI-related deaths,” Rillera mentioned.
She mentioned drivers beneath the affect kill greater than 1,000 victims a yr in California and greater than 10,000 nationally, and she or he mentioned she sees the identical repeat DUI offenders exhibiting up for court-ordered courses time and again.
However some query the punitive nature of California’s DUI legal guidelines, and whether or not they’re actually that efficient in deterring offenders from repeating previous errors.
Throughout a Senate Public Security Committee listening to in July, Sen. Nancy Skinner mentioned that whereas prosecution of DUI offenses has grow to be an increasing number of punitive through the years, there was solely a 4% drop in DUI incidents within the final 22 years.
“I’ve not but seen any sort of examine that exhibits that the diversions are much less efficient when it comes to the discount of DUIs,” Skinner mentioned. “We’d clearly want extra knowledge to completely perceive it, however there’s some indication that a number of the diversion packages are more practical.”
Legislatively, payments have been supplied to make clear or tighten Ting’s invoice.
SB 421, launched by Sen. Steven Bradford, D-Gardena, would restrict diversion to those that haven’t any prior convictions for driving beneath the affect and haven’t accomplished diversion for DUI throughout the previous 10 years. For individuals who are granted diversion, the invoice would require the defendant to put in an ignition interlock system and take part in training and counseling packages.
Two key Senate committees have signed off on Bradford’s invoice.
One other invoice, AB 282 by Assemblyman Tom Lackey, was designed to exclude DUIs beneath Ting’s diversion regulation. The invoice was rejected by a Senate committee in July, nonetheless.
Lackey mentioned he would carry up the laws in opposition to within the subsequent session. For him, the struggle is private. As a retired CHP officer who labored 28 years in L.A. County, he noticed dozens of accidents attributable to DUI drivers, and notified greater than 40 households that their family members had died in DUI-related accidents.
“I personally revamped 1,000 (DUI) arrests. I’ve actually seen lots of of tragedies related to impaired driving, and it’s all preventable, and that’s the massive tragedy,” Lackey mentioned.
Change of coronary heart
When Gov. Gavin Newsom signed Ting’s invoice into regulation on Sept. 30, 2020, he expressed reservations about DUIs being among the many qualifying offenses.
“I’m involved that the crime of driving beneath the affect was not excluded from the misdemeanor diversion program. I’ll search to expeditiously treatment this concern with the Legislature within the subsequent legislative session,” he mentioned on the time.
The unintended penalties of the regulation and its ripple results throughout the state prior to now 9 months has prompted Ting to have a change of coronary heart.
When Lackey’s AB 282 went earlier than the Meeting on Could 27, he was amongst greater than 60 Meeting members who voted sure on it. The invoice handed, with solely 9 Meeting members voting no. Nevertheless, it was rejected two months later when it received to the Senate Public Security Committee.
Ting mentioned that when his invoice was transferring by way of the legislative course of, the first issues raised over which offenses can be eligible for diversion had been associated to home violence and sexual assault. DUI offenses didn’t come up throughout discussions, he mentioned in an e mail.
He mentioned he was primarily involved about harsh therapy for first-time DUI offenders and a “one-size-fits-all method to our felony justice system that hasn’t labored.”
However now he’d prefer to treatment the regulation’s flaws.
“The legislative course of permits for debate and compromise. That doesn’t finish simply because a regulation took impact,” Ting mentioned. “I’m all the time prepared to hear. However one lawmaker doesn’t have the facility to make adjustments. It takes a majority of each homes and approval from a governor to make it occur.”