We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

Articles Posted in DUI

People v. Cummings (Cal. Ct. App., Mar. 3, 2021, No. C084505) 2021 WL 803686, at *1–5

Summary:Cummings entered a plea of no contest to attempted driving with a blood alcohol-level of 0.08 percent or more within 10 years of a felony conviction for driving under the influence (DUI) (Pen. Code, § 664/Veh. Code, §§ 23152, subd. (b), 23550.51) and admitting two prior DUI convictions.

Cummings was granted five years of formal probation.

David Peter Moore, Sr., Petitioner, V. The Superior Court of Riverside County, Respondent; THE PEOPLE, Real Party in Interest. Court of Appeal, Fourth District, Division 2, California. December 11, 2020 — Cal.Rptr.3d —- 2020 WL 7296513

Summary: Vehicle Code section 23640 and its predecessor, Vehicle Code former section 23202, have generally made DUI defendants ineligible for any form of pretrial diversion. In 2018, the Legislature enacted Penal Code section 1001.36, making defendants charged with “a misdemeanor or felony” and who suffer from a qualifying mental health disorder generally eligible for pretrial mental health diversion. (Stats. 2018, ch. 34, § 24.) The Legislature then amended Penal Code section 1001.36 to make defendants charged with murder and other specified offenses categorically ineligible for pretrial mental health diversion. (§ 1001.36, subd. (b)(2); Stats. 2018, ch. 1005, § 1.) But the Legislature did not amend Penal Code section 1001.36 to clarify that DUI defendants are eligible for pretrial mental health diversion, notwithstanding Vehicle Code section 23640.

The issue in this case is one of statutory interpretation: In light of Vehicle Code section 23640, are DUI defendants categorically ineligible for pretrial mental health diversion under Penal Code section 1001.36? In Tellez v. Superior Court (2020) 56 Cal.App.5th 439 (Tellez), the Court  addressed the same question and concluded, based on the legislative history of Penal Code sections 1001.36 and 1001.80 (military diversion), that the Legislature did not intend DUI defendants to be eligible for pretrial mental health diversion under section 1001.36. (Tellez, at pp. 447-448.)

AB 3234,  taking effect on January 1, 2021, allows for diversion in almost all misdemeanor cases, including DUI, vehicular manslaughter, elder abuse, child abuse, assault, hate crimes, carrying a concealed firearm, possession of a firearm in a school zone, criminal threats, and dissuading a witness.  Upon completion of diversion, as defined by the judge, the case shall be dismissed and the crime deemed to never have occurred.

Diversion and dismissal of the case under AB 3234

Under AB 3234, a judge in the superior court in which a misdemeanor is being prosecuted can offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney, except as specified. A judge can continue a diverted case for a period not to exceed 24 months and order the defendant to comply with the terms, conditions, and programs the judge deems appropriate based on the defendant’s specific situation. At the end of the diversion period, if the defendant complies with all required terms, conditions, and programs, the judge is required to  dismiss the case  against the defendant. The arrest upon which diversion was imposed  will be deemed to have never occurred.  The court may end the diversion and order resumption of the criminal proceedings if the court finds that the defendant is not complying with the terms and conditions of diversion.

People v. Shumake (Cal. App. Dep’t Super. Ct., Dec. 16, 2019, No. 6093) 2019 WL 8128736

Stop by Specialized Dui Patrol Officer: Admission that driver had marijuana in the car

While on specialized DUI patrol Berkeley Police Officer Megan Jones stopped a Hyundai with no front license plate, a violation of Vehicle Code Section 5200. Officer Jones testified that she stops cars for traffic violations, to see if the driver might be impaired. She testified that Shumake’s driving was normal, and that he immediately and safely pulled to the curb when she activated her lights and siren, and that he was cooperative. Officer Jones testified that she has conducted about 800 DUI investigations, with about 500 involving marijuana.

Fish v. Superior Court of San Diego County, 2019 WL 6337434 (Cal.App. 4 Dist.) (Cal.App. 4 Dist., 2019)

Synopsis:

Mason Fish, charged with gross vehicular manslaughter while intoxicated filed a petition seeking to prevent trial court from reviewing his psychotherapy treatment records and to require trial court to grant his motion to quash the subpoenas for those records based on the psychotherapist-patient privilege.

Evans v. Shiomoto (Cal. Ct. App., Oct. 21, 2019, No. D073969) 2019 WL 5886970, at *1–7

The DUI stop, arrest and suspension

Evans was pulled over for driving with his off-road-only lights illuminated while on a “highway,” in violation of Vehicle Code section 24411. The officer observed signs of intoxication and Evans consented to a chemical breath test that registered a blood alcohol level above 0.08 percent.

Defendants who plead or are found guilty of traffic violations and other misdemeanors are typically assessed court fees and fines under Gov. Code, § 70373, Pen. Code, § 1465.8, and Pen. Code, § 1202.4, Unpaid fines usually go to collections without further order of the court.

Courts must determine a defendant’s ability to pay fees and assessment.

The Court of Appeal ruled in People v Dueñas (285645) that when poverty is the only reason a defendant cannot pay court fee and fines, using the criminal process to collect them is unconstitutional. Its decision bars courts from imposing court fees and assessments without determining a defendant’s present ability to pay. Despite Pen. Code, § 1202.4, precluding consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine

New and changed laws that took effect January 1 will affect drivers in California. The following information was issued by the California Department of Motor Vehicles.

Temporary License Plate Program (AB 516, Mullin): Designed to reduce toll evasion

Licensed California dealers, of new and used vehicles must attach temporary paper license plates on a vehicle at the point of sale before it may be driven off the dealership lot, if that vehicle does not display license plates previously issued by the DMV.

California has something called an “implied consent” law. This means if you are arrested for driving while intoxicated, it is implied that you have consented to a blood or breath test. Your refusal can trigger a suspension of your driver’s license. You may be able to avoid that license suspension, however, if you can show the DMV that your failure to provide a sample was due to a medical ailment not related to your intoxication. To make this argument, you’ll need to request a DMV hearing within 10 days of your arrest. Given the importance of driving privileges to most any Californian, a potential suspension is a very serious punishment and requires prompt and serious action, including retaining a skilled San Francisco DMV defense attorney.

R.G.’s case was one that involved a license suspension. R.G.’s encounter with a deputy sheriff began with a traffic stop for failing to lower his high-beam headlights. Things got worse for R.G. The deputy detected what he believed to be bloodshot, watery eyes and droopy eyelids. The deputy also perceived what he believed to be the smell of alcohol. R.G. performed some field sobriety tests and performed poorly. R.G. declined to take preliminary alcohol screening.

The deputy then gave R.G. the implied consent advisement and explained blood and breath tests. The driver chose a breath test but was unsuccessful in providing a sufficient breath sample. A phlebotomist arrived after that, but R.G. refused a blood test, according to the department. He also allegedly refused to take another breath test.

Contact Information