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Monday, October 25, 2021

Misconduct diversion law leads to confusion, disparities in DUI cases

A new California law that allows judges to grant diversions to first-time misdemeanor DUI offenders has created a quagmire in the legal system, with criminal defense attorneys and prosecutors warring over its interpretation and judges seeking clarity. The lack has been disputed.

A lawyer described the law, introduced last year by Assemblyman Phil Ting, D-San Francisco, as Assembly Bill 3234, the most litigious issue in the state since it took effect on Jan. District attorneys in Riverside, Los Angeles and Sacramento Counties have challenged it in their Superior Court appellate divisions.

Opponents argue that the new law, which falls under the state penal code, conflicts with an existing state vehicle code clause that prohibits judges from awarding diversions to DUI offenders in exchange for criminal penalties.

At the judicial level, this has created clear disparities as to who has been turned – which allows for the eventual dismissal of charges – and who has not, essentially based on which judge a defendant appears before and to whom. Charges were filed in the county.

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

‘Flapping in the Wind’

Prosecutors, criminal defense lawyers and lawmakers are seeking clarification from higher courts or new legislation to resolve the conflict.

“This is what is happening now. It is like wildfire going through the courts,” said Lara Gresley, a criminal defense attorney in Riverside specializing in DUI cases. In June, she told a client by a Los Angeles Superior Court judge Petition to be weighed in the state Supreme Court after its offer to grant the diversion was refused.

The Supreme Court declined to review Gresley’s case, which it attributes to the absence of lower court appellate decisions on the issue.

Gresley said the new law is baffling judges who are finding it difficult to decide which way to go.

“They’re continuing the case for months at a time, hopefully a court of appeals opinion,” Gresley said. “Everybody wants a court of appeals decision, because it’s binding in all the courts in California. Now we’re just fluttering in the wind. It’s going to have to be found out.”

in the courts

Since Ting’s law went into law, Superior Court judges had the discretion to grant diversions in DUI cases based on the severity of the offense, such as the defendant’s blood alcohol level, speed, where the crime occurred and whether any Property was damaged.

Misconduct diversion law leads to confusion, disparities in DUI cases
Pomona Police Department Detective J. Dolgovin supervises a DUI checkpoint in Pomona on December 21, 2018. (Photo by Will Lester, Inland Valley Daily Bulletin/SCNG)

DUI offenses that cause injury to another person are usually charged as felonies and do not quality for diversion under the law.

Prosecutors immediately began filing motions within their respective Superior Court appellate divisions, holding that DUI offenders do not qualify for diversion due to vehicle code section 23640. Some appellate division judges sided with prosecutors, and others have not.

On July 27, a three-judge panel in Riverside Superior Court’s Appellate Division denied a motion by District Attorney Mike Hestrin, voting 2-1 that DUI defendants are, in fact, eligible for pretrial diversion under the new law. . Hestrin and Senior Deputy District Attorney Chris Bouffard filed the motion after judges granted the three defendants diversions in separate DUI cases.

Two weeks ago — on July 14 in Los Angeles County Superior Court — appellate division judges unanimously ruled that DUI defendants do not qualify for diversion. He said that when the legislature approved AB 3234, it was “silent on whether misconduct in driving could be permitted in cases of influence,” and that the new law does not repeal the Vehicle Code provision.

In Orange County Superior Court, some Appellate Division panels have concluded that DUI offenses of misconduct do not qualify for diversion, and others have declined to hear petitions raising the issue, said court spokesman Costas Kalitzidis in a statement. Said in email.

disparity in decisions

In his petition to the Supreme Court, Gresley said that the lack of an appellate court’s ruling on the conflict has resulted in a “huge disparity in decisions” by lower court judges across the state.

“The lack of guidance on the questions has resulted in inconsistent decisions across the state,” Gresley said in his plea.

She cited 11 DUI cases from eight Superior Courts across the state, including Riverside, Orange and Los Angeles counties, in which five defendants were granted diversions and five were denied. In the 11th case, a judge said that further review is necessary.

increasing diversion

In Riverside County, more than a dozen DUI defendants have been given diversions since the new law went into effect, said deputy public defender Souli Diallo. Some judges, however, are reluctant to grant diversions even after a favorable appellate division ruling on July 27.

Orange County Public Defender Martin Schwarz said DUI misdemeanor convictions are unique because they carry large mandatory fines. While perhaps not consequential for the resourceful, they do have a dramatic effect on those the office defends most: the poor.

Although Schwarz would not comment on how many DUI defendants have been granted diversions so far, he said the majority of requests have been denied.

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Although he could not provide specific numbers, San Bernardino County Deputy Public Defender Geoff Canty said he has only given diversions to “a handful” of DUI offenders since January. He adopted the new law.

“It follows the trends we’re seeing in California, providing a wide variety of access to services and treating the underlying causes that drive people into our criminal justice system,” he said. “It’s much more rewarding than being punitive.”

San Bernardino County District Attorney Jason Anderson disagrees. Because of the high recurrence rate of DUI offenders and the public safety risk posed by them, he said, it is important to make a stick of conviction the first time to prevent the second. Diversion, he argues, is the equivalent of “giving people a pass on a DUI for the first time”.

Misconduct diversion law leads to confusion, disparities in DUI cases
Patricia Rellera, California State Executive Director for Mothers Against Drunk Driving. (Photo courtesy of MADD)

MADD Responds

Patricia Rellera, California state executive director of Mothers Against Drunk Driving, said that AB 3234 not only gives DUI offenders a free pass, but it changes much of what her organization has achieved in its more than 40 years of existence.

“From our perspective, this underscores the seriousness of crime and the progress made over the past few years to reduce DUI and DUI-related deaths,” Rellera said.

She said that drivers under the influence kill more than 1,000 victims a year in California and more than 10,000 nationally, and she said she shows the same repeat DUI offenders to court-ordered classes over and over again.

But some question the punitive nature of California’s DUI laws, and whether they are really effective at preventing criminals from repeating past mistakes.

During a Senate Public Safety Committee hearing in July, Sen. Nancy Skinner noted that while the prosecution of DUI offenses has become more and more punitive over the years, DUI incidents have declined by only 4% over the past 22 years.

“I haven’t seen any studies yet that show diversions are less effective in terms of DUI reduction,” Skinner said. “We will obviously need more data to fully understand this, but there is some indication that some diversion programs are more effective.”

legislative action

Legislatively, bills have been introduced to clarify or tighten Ting’s bill.

SB 421, introduced by Sen. Steven Bradford, D-Gardena, would limit diversions to those who have no prior convictions for driving under the influence and have not completed the diversion within the past 10 years. For those who have been given diversions, the bill would require the defendant to install an ignition interlock device and participate in education and counseling programs.

Bradford’s bill has been signed by two major Senate committees.

Another bill, AB 3234, by Assemblyman Tom Lackey, was designed to exclude DUIs under Ting’s diversion law. However, the bill was rejected by a Senate committee in July.

Lackey said he would bring a law against it in the next session. For him, the fight is personal. As a retired CHP officer who worked 28 years in LA County, she witnessed dozens of accidents caused by DUI drivers, and informed more than 40 families that their loved ones had died in DUI-related accidents.

“I have personally made over 1,000 (DUI) arrests. I’ve seen literally hundreds of tragedies involving bad driving, and it’s all preventable, and that’s a big tragedy,” Lackey said.

change of heart

When Governor Gavin Newsom signed Ting’s bill into law on September 30, 2020, he expressed reservations about DUI being among the offenses eligible.

“I am concerned that the offense of driving under the influence was not excluded from the diversion program of misconduct. I will try to expeditiously resolve the issue with the Legislature in the next legislative session,” he said at the time.

The unintended consequences of the legislation over the past nine months and its impact across the state have prompted Ting to have a change of heart.

When Lackey’s AB 282 went before the assembly on 27 May, he was among more than 60 assembly members who voted yes to it. The bill was passed, only nine assembly members did not vote. However, it was rejected two months later when it went to the Senate Public Safety Committee.

Ting said that while his bill was moving through the legislative process, the primary concerns raised concerning domestic violence and sexual assault were which crimes would be eligible for diversion. He said in an email that the offenses of DUI did not come up during the discussion.

He said he was primarily concerned about harsher treatment for first-time DUI offenders and a “one-size-fits-all approach to our criminal justice system that hasn’t worked”.

But now he would like to plug the loopholes in the law.

“The legislative process allows for debate and compromise. It doesn’t end just because a law went into effect,” Ting said. “I’m always ready to listen. But a legislator does not have the power to make changes. It requires a majority of both houses and approval from the governor to accomplish this. “

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