Here is the scenario: Client has a pending DWI in Texas. He currently has a Texas Driver’s license but he is living in California. If he sits out his 6 month license suspension in Texas and then Applies for a California license, will California give him a License and 2) will he be required to have SR-22 insurance in California 3) and if so how long?
He should apply for a CA license before his TX license gets suspended. CA would only then suspend his CA license if it picks up on the TX suspension—that won’t likely happen unless the CA DMV has some reason to run his driving record (Texas won’t report it out because he wasn’t license in CA at the time of the incident).
California is not going to require anything of him because the incident happened before he was licensed in CA. However, he will want to get the TX suspension lifted asap and keep it lifted by maintaining the SR22 for the two years required on the Texas DUI case.
A Drug Recognition Expert (DRE) is a cop who has taken a specialized training course. According to the training manual, “The Drug Recognition Expert course is a series of three training phases that, collectively, prepare police officers and other qualified persons to serve as drug recognition experts (DRE).”. See NHTSA DRE Training Manual R5/13. DRE cops are used extensively in criminal cases where a DUI is charged involving drugs.
However, the term “Expert” has a very specific meaning in a legal context. In California a witness testifying in the form of an opinion may state on direct examination . . . his special knowledge, skill, experience, training, and education) upon which it is based . . . . . The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.” (Evid. Code, § 802.).
Under California law a DRE must qualify as an expert under the evidence code and present a proper foundation, i.e., “a description of the DRE’s training, education, and experience in administering the test, together with a showing that the test was properly administered.
In many DUI cases police officers are referred to as Drug Recognition Experts by the District Attorney. This title should be objected to and the DA should be admonished to not use the title “expert” when referring to such witness before the jury.
To allow the officer The title of “Drug Recognition Expert” usurps the Court’s sole discretion to qualify expert testimony.
More importantly, it unduly suggests to a Jury that they should give the DRE more weight and credibility than they would other witnesses – infringing on their fact-finding function.
Instead of referring to the witness as an expert, you may want to propose an alternative such as “Drug Recognition OFFICER” or “Drug, Recognition EVALUATOR” as substitute titles for the police officer.
Ultimately it is up to the jury to decide if a witness is an “expert” or not. You should not allow the prosecutor to brain wash the jurors into believing he or she is. If the Court allows the witness to be called an expert it gives the jury an impression that the Court has endorsed this witness and cloak he or she with credibility before the jury ever considers the evidence.
Some of the most damaging evidence in a drug DUI case (DUID) will come from the DRE, it it important to try and neutralize that evidence whenever possible. Asking the Court to refrain from using a prejudicial term when referring to said witness is a good start.
Recently I represented a young man charged with DUI in Los Angeles County. The client was a a recipient of DACA and was afraid of the impact a driving under the influence conviction would have on his ability to remain in the United States.
In defending this client, I embarked on a journey of education in Federal Immigration Policy. What is DACA? It is an acronym, Deferred Action for Childhood Arrivals (“DACA”) is a reprieve from deportation that can be granted to immigrants who are undocumented, were brought to the United States as young people, and are either currently attending school, graduated from high school, or were honorably discharged from the U.S. military. The program alleviates deportation risk, comes with temporary employment authorization, and can create a path to permanent lawful status. In implementing the DACA program, the federal government built in strict conviction-based bars. These include convictions (infractions, misdemeanors, and felonies) for “driving under the influence (“DUI”). DHS did not include traffic offenses in the absolute bars to young people receiving DACA.
In implementing the DACA program, the Federal Government included strict bars, including a conviction for “driving under the influence.” DHS’s formal FAQ regarding DACA states, “[i]f you have been convicted of a … significant misdemeanor offense … you will not be considered.” The FAQ goes on to say that “[f]or the purposes of” DACA, “a significant misdemeanor is a misdemeanor … for which the maximum term of imprisonment authorized is one year or less but greater than five days … and that … [r]egardless of the sentence imposed, is an offense of … driving under the influence.” Vehicle Code §§ 23152 and 23153 fit these criteria. Both convictions are punishable by more than five days imprisonment. Both convictions are an offense of driving under the influence. Immigrants otherwise eligible for DACA will not be considered if convicted under either of these DUI statutes.
What can be done to avoid the harsh consequences that a DWI will cause DACA kids? The best alternative is a plea to the offense of reckless driving involving alcohol or drugs, commonly referred to as a “wet reckless”. A § 23103.5 offense is not a DUI offense for purposes of DACA, because there is no finding or requirement that the defendant drove under the influence of alcohol.
Many criminal defense attorneys in California report a conviction for wet reckless will not result in a per se bar to DACA. Anecdotal evidence indicates that DHS has granted DACA in cases involving § 23103.5 convictions, having found them not to be significant misdemeanors. As DHS acknowledges outright in its FAQ, “the decision whether to [grant DACA] in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances,” and thus a § 23103.5 conviction may serve as the basis for a discretionary denial of DACA. However, this is critically different from convictions under § 23152 or § 23153 which outright preclude a grant of DACA absent “extraordinary circumstances.” See Moncrieffe v. Holder (2013) 569 U.S. 184, 204 (distinguishing between mandatory deportability and the ability to seek discretionary relief that the government may decide whether or not to grant).
For noncitizens otherwise eligible for DACA, the difference between a conviction under VC § 23103.5 as compared to VC § 23152 or § 23153 is significant; whereas the former will allow for consideration of a DACA application, the latter two will not. This explains and exemplifies why the Supreme Court has held that “deportation is … intimately related to the criminal process,” further observing that state and federal laws have “enmeshed criminal convictions and the penalty of deportation.” 559 U.S. at 365-366.
In codifying PC §§ 1016.2 and 1016.3, California has provided a statutory framework for prosecutors and defense counsel to engage in the plea bargaining process under modern and current terms where immigration consequences, like DACA, are bound up in rather than unrelated to the state’s criminal prosecution and the result for a defendant. California’s government intended, and the Supreme Court has held time and again, that criminal cases should resolve in a manner that allows noncitizens “to enter ‘safe harbor’ guilty pleas [that] do not expose the [alien defendant] to the risk of immigration sanctions.” Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015) (internal quotations omitted, brackets original). In criminal cases of DACA-eligible noncitizens, a plea to VC § 23103.5 rather than a DUI statute accomplishes this very ideal.
I want to report a happy ending to my DACA client. After fighting the case for almost two years I was able to obtain a plea offer to a VC 23103.5 with a substantial amount of community service. This resolution was quite an accomplishment for the client considering the case involved a breath test of .17 BAC and a collision with 3 cars wherein one of the occupants claimed injury.
We want to give credit to The Immigrant Legal Resource Center (“ILRC”) for its memo on this topic.
Matthew Ruff is a Torrance Criminal Defense Attorney with close to 30 years experience defending clients charged with DUI and other serious crimes.
Having practiced criminal defense for close to 30 years I have been asked numerous times what should I do if stopped for a DWI? I’ve never been one to give people advice on how to thwart the law, however, over time I have come to realize folks need this advice because we all have rights afforded to us by the constitution and we should all understand what those rights are and how they come into play in our daily lives and interaction with law enforcement.
First, let me say I do not condone drinking and driving, not because it is illegal per se but because on a professional level I have seen the grief caused when a police officer stops a person and smells alcohol on their breath. The best way to avoid a DUI is to refrain from drinking and then driving.
With that being said, here are 5 Tips to follow when being investigated for a DUI:
1. Be Courteous. Cops deal with rude people all day long and always appreciate it when a suspect is respectful and courteous.
2. Tell the officer right up front you do not want to participate in any field sobriety tests. These tests are unreliable and should not be taken. Let the officer know if he wants to place you under arrest you will not resist, however if not you are requesting you be able to proceed on your way.
3. If asked about drinking, respond you will provide your drivers license if requested but you are invoking your Constitutional Right to remain silent as to any questions concerning alleged criminal activity.
4. Get out of the car if requested. Officers are allowed to demand a driver exit his vehicle for officer safety reasons. Do so, but politely decline any field sobriety tests or questions pertaining to drinking.
5. If arrested you must submit to a chemical test or risk losing your license for 1 year. I recommend the breath test because it is the easiest to challenge. Advise the officer of any GERD or recent dental work.
I want to reiterate, drinking and then driving, even if you are below the legal limit, is a risky proposition because it subjects you to being detains and possibly being arrested. If you are arrested for DUI, Upon release contact a lawyer immediately so that important rights will not be lost.
In California, as is the case in most states, Field Sobriety Tests are used to determine probable cause to arrest for driving under the influence. The “tests” are also used as substantive evidence of impairment for purposes of proving whether the driver was guilty of driving while “impaired” under the legal definition of “under the influence” in criminal court. But are these tests reliable?
To answer this question we have to first understand the origin of these tests. Back before per se laws were enacted the government had to prove the driver was actually impaired or affected by alcohol to the degree they could no longer drive a vehicle with the required caution characteristic of a sober driver under the same or similar circumstances. Cops were often scant in the evidence they had collected to prove this so the government embarked on a mission to provide law enforcement with tools they could use in the field to collect evidence of this nature. This was the birth of the SFST which stands for Standardized Field Sobriety Test. These exercises were created in a way that every police officer could administer the tests in the same manner whether they are in California or some other state. Thus, the name ”Standardized” Field Sobriety Test.
The government entity behind the tests was NHTSA, the National Highway Traffic Safety Administration. It sponsored studies that would back up and bolster the efficacy of the SFST. In early testing the SFSTs were found to be about 70-80 percent accurate in predicting blood alcohol levels above .10 which was the national BAC limit in most states at that time. The tests were comprised of a “3 test battery” consisting of the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (WAT), and the One Leg Stand (OLS). What is important to understand is that the tests were never validated to measure impairment. Let me repeat that: The SFST’s were never designed to validate or measure impairment. They were validated only to predict or determine whether a subject was above the legal limit at the time, .10 BAC. [ See “Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent” NHTSA Study 1998]. The following is a direct quote from the study: ”…… SFST results help officers to make accurate DWI arrest decisions even though SFSTs do not directly measure driving impairment.” (pg. 28, Ibid.)
With all this being said, here is the crux of the issue. FST exercise results can be very incriminating when the observations show obvious signs of physical and mental impairment due to alcohol intoxication. However, police will often report the driver did not perform well when subtle ”clues” are observed. it is in these cases where the administration of the test must be in strict accordance with the training and standardized procedures. Particularly when it involves the HGN test, cops will oftentimes not conduct the test properly. As a DUI Attorney with over 30 years experience, I personally can attest to the fact these tests are done too fast and certain critical steps are often skipped.
When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable. In an extensive study, the National Highway Traffic Safety Administration (“NHTSA”) evaluated field sobriety tests in terms of their utility in determining whether a subject’s blood-alcohol concentration is below or above the legal limit. The NHTSA concluded that field sobriety tests are an effective means of detecting legal intoxication “only when: the tests are administered in the prescribed, standardized manner,……the standardized clues are used to assess the suspect’s performance,….. [and] the standardized criteria are employed to interpret that performance.” National Highway Traffic Safety Administration ., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), at VIII-3. According to the NHTSA, “[i]f any one of the standardized field sobriety test elements is changed, the validity is compromised.” Id.
It is not uncommon in some DUI accident cases for the driver to sustain injury to their face from the deployment of the airbag. The force of the bag hitting the facial area can be quite substantial causing cuts to the cheeks and sometimes cuts to the inside of a person’s mouth, gums and lips. Quite often these injuries are not severe enough to require medical attention. When the cut is serious enough to leak blood into the mouth these types of injuries can cause problems with the breath machine, here’s why.
Breath testing in drunk driving cases involves the collection of a sample of breath from the suspected impaired driver for the purpose of determining the ethanol content in their blood. In order to determine a person’s BAC level the machine is designed to capture a sample of deep lung air that originates from the subject’s alveolar region of the lungs. The theory behind this is that the alveolar air contains molecular levels of ethanol which can be extrapolated to determine their blood level by using a partition ratio of 2100 to 1. This extrapolation takes place inside the machine whereby the device literally multiplies the alcohol molecules 2100 times and reports it as a concentration of BAC. For example, .08% which is the legal limit in California. Alveolar refers to the smallest air sacs in the lungs and to that portion of the expired breath which is in equilibrium with respect to alcohol with the immediately adjacent pulmonary blood. In California a breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood.
With regard to the issue at hand, imagine a person who may have had a small amount to drink and subsequently that alcohol gets absorbed in the body and makes its way to the bloodstream. If the drinks were minimal, say a couple beers, the person’s BAC or blood alcohol level will be relatively low such as .03-.05 which is not above the legal limit. However, now assume that person gets in a collision and their lip is busted from the airbag explosion. Now lets further imagine they are arrested for driving under the influence because the officer smells the alcohol on their breath and they are off balance due to the impact of the accident. That person chooses a breath test and blows into the machine while small amounts of blood are leaking into the mouth.
The sample collected contains the alcohol in his blood which gets converted into a ”breath air” concentration by multiplying it 2100 times. This molecular level of alcohol in his blood now fools the breathalyzer into thinking it was alveolar air but it was not. As a result the reported concentration is now inflated artificially resulting in a false high level of BAC. Experts in the field have stated the problem this way: “the increase in alcohol molecules caused by blood leaking inside the mouth disrupts the equilibrium upon which the breath test is based and will thus lead to “overreported” results” (See People v. Ernsting, 2018 IL App (5th) 160330).
When a subject has fresh blood in his or her mouth and that blood contains even low levels of alcohol, the results of the breath test is not reliable within a reasonable degree of scientific certainty. The problem of mouth blood that contains molecular levels of ethanol is that it also arguably violates Title 17 which governs breath testing in the state. Most DUI Attorneys agree that if the sample collected is contaminated by sources that do not originate from the deep recesses of the lungs then the sample is not ”essentially alveolar air” which is what the Regulations require. Moreover, some states prohibit ”foreign substances” in the mouth during the testing process, in many of those states blood in the mouth qualifies as a foreign substance so as to invalidate the results.
If you or someone you know has been in an accident, sustained a mouth area injury and was charged with DUI and believe the breath test was wrong, call Torrance Criminal Defense Attorney Matthew Ruff for a consultation and discussion about your case.
Judge Ellison is a Superior Court Judge in the Torrance Branch of the Los Angeles Superior Court. She currently presides in Department C of the Court which hears mostly Felony Criminal Matters. Dept. C is a Trial Courtroom where cases are sent, via the current Court Matrix, after preliminary hearing according to their assigned case number. The cases heard in D-C include all manner of criminal offenses, including murder, robbery, DUI charges and all other felony cases filed in the South Bay.
Judge Ellison is a seasoned bench officer appointed by Governor Wilson in 1998. Laura C. Ellison was 35 years old at the time of her appointment. Prior to becoming a Judge she worked as a deputy district attorney in the Los Angeles District Attorneys Office. She was appointed to the South Bay judicial district where she has been a Judge in various Courtrooms, including handling preliminary hearings in Division 3 for a considerable amount of time, before it became the misdemeanor arraignment and EDP courtroom. For a time she handled civil matters prior to her current assignment. Her time in Civil Court clearly gave her a well rounded level of experience, handling motor vehicle accident cases, civil harassment matters and other civil cases.
Judge Ellison is a smart bench officer with an excellent understanding of the criminal justice system, the penal code and application of the law. She is well respected among the South Bay Bar and by lawyers on the prosecution side. As a criminal defense attorney with over 25 years experience, my experiences with her have been largely positive. She is no-nonsense and runs her courtroom in an efficient manner. Judge Ellison is fair to all litigants and gives everyone who appears in her court an opportunity to be heard. Her legal rulings are well thought out and grounded in the law. Her judicial demeanor is stern yet courteous and patient. Although, as with any bench officer, her patience can be tested at times, she maintains a good temperament and is considerate.
Caretaker Diversion is codified in Penal Code 1001.83. The law is a welcome sight for many who saw the instability and chaos created when a parent of a minor child went to prison. The law allows for rehabilitation and accountability without punishing the innocent children for acts of their parents. California is indeed progressive in implementing the law, San Francisco is the first to adopt and create a program, it is hoped Los Angeles will soon follow.
In 2020 Governor Newsom signed into law SB 394 which created a diversion program for primary caretakers of minor children in CA who have committed a crime and are facing incarceration. The law is designed to alleviate the financial stress on families when the breadwinner goes away to jail. The law also contemplates eliminating the “cycle of incarceration” and alleviating the trauma and lifelong scars endured by children when a parent is behind bars.
The law creates a program wherein a defendant can petition the Court to allow for alternatives to jail for both non violent felonies and misdemeanor charges. A motion is brought by the attorney with a declaration attesting that the accused provides substantial financial or familial support and that the minor children in household would be detrimentally harmed if the defendant goes to jail.
A motion for primary caretaker diversion pursuant to SB394 is not limited to a mother or female caregiver, if the father or male head of the household is the source of income for the family he qualifies. The defendant does not need to be the biological parent of the minor child. The pleadings must include proof the defendant qualifies by establishing the following:
1) The defendant is a custodial parent or legal guardian of a minor child under 18 years of age, presently resides in the same household as that child, presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant’s absence in the child’s life would be detrimental to the child.
(2) The defendant has been advised of and waived the right to a speedy trial and a speedy preliminary hearing.
(3) The defendant has been informed of and agrees to comply with the requirements of the program.
(4) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, or to the minor child in their custody, if allowed to remain in the community. The court may consider the positions of the prosecuting entity and defense counsel, the defendant’s violence and criminal history, the recency of the defendant’s criminal history, the defendant’s history of behavior towards minors, the risk of the dependent minor’s exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant, and any other factors that the court deems appropriate.
(5) The defendant is not being placed into a diversion program, pursuant to this section, for any serious felony as described in Section 1192.7 or 1192.8 or violent felony as described in subdivision (c) of Section 667.5.
(6) The defendant is not being placed into a diversion program pursuant to this section for a crime alleged to have been committed against a person for whom the defendant is the primary caregiver.
In Los Angeles the District Attorney has directed its office to comply with all statutory diversionary schemes and not oppose those cases where the interests of justice and the spirit of the law supports the imposition of diversion. This special directive specifically mentioned PC 1001.83.
The defendant cannot get Parental Diversion for crimes involving their own children, such as child abuse or child endangerment or neglect. However, the statute appears to allow for diversion in domestic violence cases where the victim is the other parent.
The law goes by many different names such as “primary caretaker diversion”, “parental diversion”, “caretaker diversion”, among others.
Under CA law if the caregiver fails to comply with the terms of the diversionary grant the District Attorney can request that the criminal charges be reinstated.
Recently Attorney Ruff was successful in obtaining Parental Diversion in Los Angeles in a felony case of hit and run resulting in death where the DA was insisting on Felony Probation with a year in the County Jail. If you or a loved one is facing jail on a felony or misdemeanor charge in Southern California call Matt to discuss your options and strategies to avoid jail and a conviction on your record.
A few years ago California allowed Judges to grant Diversion over the objections of the prosecution on most misdemeanor offenses, this was commonly referred to as Judicial Diversion. Unfortunately the statute that allowed for this expired. In 2021 the law has brought back Judicial Diversion. AB 3234 is a broader version of the older pilot program which ran in Los Angeles County. The new program will allow for a defense motion for diversion in virtually all misdemeanor cases with the exception of specific enumerated crimes such as domestic violence and 290 registered offenses. The intent of Legislature with PC 1001.95 is to promote a global increase in diverted cases in order to be proactive and mitigate both an individual’s entry and reentry into the criminal justice system, as well as to reduce taxpayer costs. Previously excluded offenses such as DUI appear to be eligible under the 2021 statute.
Although driving under the influence charges such as VC23152 are not specifically excluded in the new CA diversion statute, VC23640 states that DWI cannot be dismissed if the person participates in an education program. Many Judges in Los Angeles are using VC23640 as a reason to deny defense requests for diversion of DUI charges. District Attorneys across the state have spoken publicly about the shortcomings of the new law, specifically how it gives drunk drivers a “free pass”. The DA in Orange County has been particularly outspoken on this issue. Ultimately an Appellate Court will need to decide this issue. A similar argument was used to deny diversion for drunk driving in Military cases. This issue was decided in favor of the servicemen and women. It will be interesting to see if the Courts go the same way given that it would now apply to anyone in the state. Stay tuned!
In Los Angeles I am seeing anecdotal evidence of Judges denying motions for Judicial Diversion on DUI charges on the grounds of “public safety”. This argument will likely be the primary reason raised by prosecutors in driving under the influence cases.
The following is a synopsis of CA law pertaining to this form of Diversion:
Penal Code 1001.95
(a) A … judge may, at the judge’s discretion, and over [The Prosecution’s] objection…, offer diversion to a [misdemeanor] [Defendant]….
(b) [Diversion can last up to] 24 months and [can include] terms, conditions, or programs … based on [D’s] specific situation.
(c) If [Defendant] has complied…, at the end …, the judge shall dismiss the [case].
(d) If … [D] is not complying …, the court may [hold a hearing,] end the diversion and [resume] the criminal proceedings.
A [diverted Defendant] … [must] complete all of the following … to have their action dismissed:
(a) Complete all conditions ordered by the court.
(b) Make full restitution. However, a [Defendant’s] inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that [D] has failed to comply with the terms of diversion.
(c) Comply with a court-ordered protective order, stay-away order, or or- der prohibiting firearm possession, if applicable.
Penal Code 1001.97
(a) Upon successful completion of [diversion] …, the arrest … shall be deemed to have never occurred. [D] may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of [diversion] shall not, without [D’s] consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(b) [Defendant] shall be advised that, regardless of their successful completion of diversion, the arrest … may be disclosed by the Department of Justice in response to a peace officer application request and that … this section does not relieve them of the obligation to disclose the arrest in response to a direct question … in a questionnaire or application for a position as a peace officer, as defined in Section 830.
As Criminal Defense Attorneys we applaud the legislature for bringing back Judicial Diversion because it allows for cases to be resolved when dealing with an unreasonable prosecutor. This law will allow many Defendants to maintain a clean record even though they had a misstep in their life. Many legal scholars agree that Diversion helps to reduce recidivism in the criminal justice system. According to the Author of AB 3234 in the comments of the Assembly Third Reading, “Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment.” The Author goes on to state “This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.”
It is anticipated that Courts in Los Angeles will be flooded with motions for diversion in all eligible cases. These requests will surely tax an already overwhelmed Court system.
Despite the many concerns, Diversion can be a fantastic way to resolve a tough case for a non citizen because it may not involve a plea of guilty or no contest and results in the dismissal of the case once all conditions have been satisfied.
Judicial Diversion will not be available for all crimes as the statute specifically excludes Domestic Violence and Sex Crimes for example. However, the vast majority of misdemeanor offenses will be eligible for dismissal under this new law. This new statute will be welcomed in Los Angeles cases in particular where the City Attorney has taken a hard stance on many crimes leaving Defense Counsel with few alternatives other than taking the case to trial.
Restitution shall be required in all cases, however the indigence of a criminal defendant shall not be a reason to deny a grant of Diversion under the statute. Also, the Defendant will be ordered to comply with any protective orders imposed by the Court.
Many Judges, as well as the California Judicial Commission, have raised concerns about the burden this new law will place on already taxed Courts. Once a motion for diversion is made, a formal hearing will need to be held to determine whether individual cases warrant a grant of diversion which will take time and resources. In fact, the Commission wrote a letter to Governor Newsom asking him to veto the AB3234 legislation because it does not give sufficient funding to the Courts to account for the additional work load. Also, the Judicial Commission was concerned the new law failed to address issues such as how a Defendant would be notified should the Court decide he or she was not complying with the agreed upon terms and conditions of the grant of Diversion.
However, as a criminal defense practitioner for over 25 years my perspective is that the law will decrease Court congestion by eliminating the need for frivolous trials in misdemeanor cases where an obstreperous prosecutor refuses to make a reasonable offer or cases where policies from higher up leave the Courtroom prosecutor’s hands tied. A prime example are cases involving concealed weapons at LAX. In these cases the City Attorney stopped giving diversion a couple years back and it has clogged the Court with trials on cases involving first offenders and otherwise diversion worthy clients. Now a reasonable Judge can step in and resolve the case thereby freeing up the Courtroom for more serious cases.
Lastly, one additional benefit of the California Judicial Diversion law is that is extends protection of the use of the arrest in any future proceedings nor can the arrest be used to deny a person any license.
The applicable statute provides: (a) Upon successful completion of [diversion] …, the arrest … shall be deemed to have never occurred. A Defendant who successfully completed the diversion program may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to an arrest resulting in successful completion of [diversion] shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. This provision makes a resolution of judge diversion very attractive to anyone facing a criminal charge.
Many attorneys have lingering questions about the procedural requirements for bringing a motion to grant diversion under PC 1001.95. For example, can an oral request be made or is a written formal motion required? These questions remain unanswered. I’m hearing from other lawyers that some Judges are are granting oral requests under the new law. Whether a lawyer chooses to request this type of relief in writing or orally will likely depend upon the personality, demeanor and relationship with a particular Judge and Courtroom Prosecutor.
Recently I was successful in getting Judicial Diversion for a client on a public intoxication charge in Torrance by simply asking , orally, for a “Court Indicated”. In another case in Los Angeles LAX Court I attempted the same thing which was met with the Judge telling me to file a written motion and serve it on the prosecution with 10 days notice. This disparity among Courts is typical and expected. So far in 2021 I have had motions granted for charges of embezzlement, theft, drunk in public, possession of a loaded firearm in a motor vehicle, possession of assault weapon, carrying a concealed weapon and possession of a firearm at LAX Airport.
Assuming the Court agrees to the request for conditional dismissal pursuant to PC 1001.95-1001.97 the defendant will need to agree to waive his or her right to a speedy trial and they must consent to the terms of the program. Thereafter the proceedings will be suspended anywhere from 90 days to one year. Any bail posted will be exonerated and the accused will be released on their own recognizance. The disposition shall not be considered a conviction or an admission of guilt for any purpose.
Suitability Factors: Factors to consider in the grant or denial of diversion include the criminal history of the defendant, the circumstances of the offense, the willingness of the defendant to comply with terms imposed by the Court, and prospects of rehabilitation. In Wade vs Superior Court 33 Cal App 5th 694, the Court gave guidance on determining whether a person is a “suitable candidate” for diversion in general. Among the 29 factors considered were: whether the defendant engaged in violent conduct, whether he has a criminal record, whether he or she has previously performed well while on probation, whether a weapon was used, whether harm was done to another person, and whether the defendant acknowledged wrongdoing at an early stage of the proceedings. Also, California Rule of Court 4.414 can offer guidance by establishing criteria used to determine suitability of probation. Both authority has been used when crafting a particular motion for Judicial Diversion.
There are unanswered questions that many attorneys have when they file a Judicial Diversion Motion in California. One is can a Judge require a plea of guilty or no contest in order to grant a motion? Second, can a Court order that a Diverted Defendant be supervised by the Probation Department during the term of Diversion?
The latest chatter among criminal defense attorneys in Los Angeles is that most judges are denying judicial diversion motions for DUI based on a number of different theories. One is that driving under the influence is specifically excluded under Vehicle Code 23640 which precludes diversion for drunk driving. The Appellate Division of the Los Angeles Superior Court has issued an unpublished opinion expressing their belief that Vc23640 does in fact preclude Judicial Diversion for DUI. It will be a matter of time before the Court of Appeals takes up the issue, stay tuned! Some Judges take the position that the charge precludes imposition of the statute due to public safety. Soon the Appellate Courts will sort it all out. If you need help filing a motion or you are a lawyer that would like a copy of Matt’s motion for Diversion Pursuant to Penal Code 1001.95, contact Matt via his website Torrance Criminal Defense Attorney
Anyone who wants one can get a copy of their official criminal history from the State of California. This criminal record is the same record that law enforcement uses and many private and governmental employers.
To get a copy of your own record you will need to visit the official website of the California Department of Justice. Here is a link to the website: California Criminal Record
The State will require you to get fingerprinted and send in the Livescan along with a check for $25. The process take some time, usually several weeks so get started early if you will be needing it soon.
Knowing what is actually on your record is important do that you can correct any incorrect information or errors.