Orange County DUI Lawyer Blog

In September 2020 Assembly Bill 3234 was enacted adding Penal Code section 1001.95 to California law. Section 1001.95 became law on January 1, 2021. Section 1001.95 allows a judge, at his or her discretion, to order a pretrial grant of diversion to a defendant charged with a misdemeanor.  The diversion order will require the defendant to comply with terms, conditions, or programs that the judge deems appropriate. If, at the end of the diversion period, the court determines the defendant successfully complied with the order, the charges against the defendant must be dismissed against the defendant.

Most DUIs are misdemeanors and as the Section 1001.95 is written now, DUIs are not excluded from a court-ordered grant of diversion.  This does not sit well with the district attorneys in California, nor with many legislators. Even Governor Newsom, when he signed the bill into law, expressed reservations that driving under the influence offenses were not excluded from the diversion program. Yet, now almost one year since the bill was enacted, DUI misdemeanoroffenses continue to be eligible for diversion under Penal Code section 1001.95. Or are they?

Some superior court judges are liberally granting Section 1001.95 diversion to defendants charged with misdemeanor DUI, some court judges are hesitant, and some steadfastly refuse to grant the diversion to DUI defendants altogether. There is a bill currently pending in the Legislature, AB 282, which is an act to amend Section 1001.95 to exclude DUI offenses from the diversion scheme. However, the bill failed on its first committee vote but is up for reconsideration. In the meantime, the appellate courts have had a say – and have confused the issue even more.

Yes, Virginia, there is such a crime.

After leaving a bar, Mitch found his car had a flat tire. Although he was somewhat inebriated after drinking three beers, he was able to jack up his car, remove the lug nuts and replace the flat tire with his spare. As he was putting the flat tire in his trunk, car keys in hand, a police officer pulled up. Mitch wasn’t even inside his car, but the officer, having a reasonable suspicion that Mitch is under the influence and intends to drive his car, engaged Mitch in conversation. Before he knows it, Mitch is under arrest for attempted DUI.

Under California law, an attempt to commit any crime, even if that attempt fails, is prevented, or intercepted before it is committed is unlawful under Penal Code section 664. To prove that an individual  attempted a crime, there must be evidence that the individual had the intent to commit the crime and took a direct step towards committing the crime. In Mitch’s case, the prosecution may allege that the fact that he fixed the flat tire and had his car keys in hand showed he intended to drive his car and, had he not been interrupted by the officer, would have done so.

Military veterans arrested on a first-time DUI may be eligible for what is billed as a “therapeutic and support” alternative to the criminal proceedings that usually accompany a charge of driving under the influence (or alcohol or drugs). This alternative is codified into California law under Penal Code section 1001.80 and known as the “Military Diversion Program.” The Military Diversion Program is available to all current or former military veterans who meet certain criteria. It is available not only to first time DUI offenders but to all qualified veterans charged with many, but not all, first-time misdemeanors.

To qualify, the veteran (or currently enlisted) defendant must establish to the satisfaction of the court that he or she is suffering from trauma, substance abuse, or mental health issues as a result of military service. The trauma may be post-traumatic stress disorder PTSD, sexual trauma, or traumatic brain injury (TBI).   (As an aside, although only first-time offenders are eligible for this diversion, veterans who have been convicted previously may be eligible for Veteran’s Court. Veteran’s Court is not a diversion program but is an intra-agency collaborative effort between the court and the Veterans Administration to provide mental health treatment to the offender.)

The Orange County Military Diversion Program diverts eligible DUI offenders to mental health and abuse treatment programs, which upon successful completion the DUI charge is dismissed, and the DUI arrest is deemed to have never occurred. (There is one exception to this and that is if the former offender applies for a peace officer job, in which case, the arrest must be disclosed. However, this does not necessarily disqualify the applicant for the job.)

According to the National Highway Traffic Safety Administration, drunk driving is responsible for approximately one-third of all traffic fatalities on our nation’s roads. In recent years, around 10,500 people lose their lives due to a traffic fatality involving a drunk driver. This does not even take into account fatalities that result from a driver under the influence of marijuana or other drugs. Driving under the influence is a persistent problem and a pandemic can’t stop it. In fact, the problem seems to have gotten worse during our bleak year of Covid-19.

The National Conference of State Legislatures recently took a look at the DUI arrests and fatalities related to drunk driving statistics across the states during the Covid-19 pandemic. Noting that while alcohol sales during the pandemic increased, some states, including California, seemed to experience a decrease DUI arrests and alcohol related traffic fatalities. Perhaps, it was conjectured, the decrease was due to strict stay-at-home orders in California. Not so fast: It appears to have been short-lived.

During the early months of the pandemic – March, April and May— CHP traffic reported a steep decline of 42% in DUI arrests decreased as compared to the same period in 2019.  However, by July, DUI arrests spiked and eclipsed the numbers seen in 2019. The July 4^th holiday saw a large increase in DUI arrests when compared to the same period in 2019: 738 drivers were arrested for DUI between July 3 to July 5 in 2020 compared to 589 for the same period in 2019. Month-to-month from July to October saw an over 40% increase in DUI arrests over the same period in 2019.

Most Californians are aware that a DUI conviction costs more than just attorney fees and the fines and fees levied by the court. After a DUI conviction, insurance rates are bound to increase, there are costs associated with the installation and maintenance of an Ignition Interlock Device, DMV fees, and so on. But one cost that is sometimes associated with a DUI is rarely considered: Restitution. When a person driving under the influence causes any damage or injury, whether because the driver caused an accident or just ran into someone’s fence, that driver, if convicted on the DUI, will be ordered to pay restitution and restitution fees.

Depending on the severity of the injuries or damage, restitution can carry a hefty price tag. When injuries are involved, the court will consider the victim’s calculation of damages and as long as there is some reasonableness, will order restitution in the amount claimed by the victim. Thus, someone who was injured by a drunk driver may claim not only losses suffered due to the immediate injuries, but also future economic losses. For example, if the injuries prevent the victim from future earnings, the restitution order may include a calculation of lost future earnings, which if the victim is younger, could be considerable. What the restitution order cannot include are losses for pain and suffering. However, these losses are recoverable in a civil action.

In most cases, the DUI driver’s insurance will pay for the damages, but only up to liability limits of the policy. More often than not, the DUI driver’s insurance company will settle with the victim/plaintiff rather than take the case to a civil trial. This is a civil settlement and is considered separate from the criminal restitution order, but with usually with offsets to the restitution. What that means in practical terms can be illustrated by this example:

While most DUI convictions are misdemeanors, the conviction is entered on the offender’s California Department of Justice (DOJ) criminal history (often referred to as a “Rap Sheet”). This conviction remains on the individual’s rap sheet forever unless a successful petition for dismissal is brought forward. The petition for dismissal, filed under Penal Code section 1203.4, is often referred to as an “expungement” although the dismissal is not a true and complete expungement. (More about that below.)

If you have been previously convicted on a misdemeanor DUI offense (or even a felony DUI offense in many cases) and you have completed your sentence, you should file a petition for dismissal of the conviction. As discussed below, the imperative to do so is even greater now that the “Clean Slate Act” is set to go into effect on January 1, 2021.

First about the petition: Anyone who has been convicted of a misdemeanor (and some felonies) is eligible to petition the court to dismiss and set aside the conviction after completion of sentence. The right to have the petition granted is automatic for the individual who has successfully completed his or her sentence, i.e., without any violations of probation or subsequent arrests or convictions. For those who violated their sentence—usually this is a violation of a term of probation—the petition can still be filed and depending on the circumstances, the petition may be granted.  Once the conviction is expunged, the DOJ rap sheet shows the conviction is dismissed. After a DUI conviction is expunged, the conviction need not ever be disclosed on an employment application (with exceptions for certain positions such as a police officer) or on a housing application.

A woman driving her Chevrolet Camaro the wrong way on the 60 freeway in Diamond Bar collided with a vehicle killing all four occupants of that vehicle and two occupants in her car. She was rendered unconscious and was airlifted to the hospital. Approximately one hour later, the investigating officer arrived at the scene of the accident. He smelled alcohol in the Camaro and saw an open can of alcohol in the driver’s seat. Several hours later, the investigating officer responded to the hospital. Although the driver was unconscious, he could smell alcohol on her breath.

Because the driver was unconscious, the officer could not administer a field sobriety breath test. Based on the evidence, he placed the unconscious woman under arrest and requested that hospital personnel complete a DUI blood draw. The driver’s blood was tested and found to have a 0.15 percent blood alcohol concentration (BAC). The driver survived and she was charged with six counts of murder.

The driver sought to suppress the warrantless blood draw evidence, but her motion was denied by the trial court. Ultimately, she pled no contest to the six counts and was sentenced to a term in prison of 30 years to life.

You get pulled over and the cop asks you: “Have you been drinking?” If you have been drinking, what should you say? Whether true or not, it is often reported that most people will answer, yes, but only one or two drinks. Well, the officer isn’t going to think, “okay, that’s not so much, I’ll let it pass.” That answer is going to be used by the officer to establish the officer’s suspicion that you are driving under the influence. From that point forward, the officer will probably ask you to exit the vehicle and submit to a Field Sobriety Test (FST). The officer’s goal is to establish probable cause to arrest you for driving under the influence.

It’s a bad idea to admit to any consumption of alcohol to the officer’s question, but you shouldn’t lie – that could get you in more hot water later on. What you should do is tell the officer that you respectfully decline to answer the question. Now, you may think this will cause the officer to suspect that you have indeed been drinking. And that may be true. But it is your legal right to decline to answer the question, as it is also your legal right to decline the FSTs, as you should—FSTs, including roadside breathalyzer tests, are voluntary. The officer’s questions and any FST are designed to establish probable cause to arrest you for driving under the influence.

If you don’t answer the officer’s questions or submit to FSTs, you can still be arrested for driving under the influence if the officer believes you are under the influence, but there will be less evidence supporting the arrest. It is important to know that once you are arrested, you cannot refuse a chemical test (blood or breath) without facing serious penalties. But depending on the result of that test, the prior observations of the officer may mean the difference between a DUI conviction and a dismissal of the charge or a conviction on a lesser charge.