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Articles Posted in DUI

People v. Grabham (Cal. Ct. App., Aug. 31, 2021, No. A160384) 2021 WL 3909628, at *1

Summary:  Grabham was convicted of violating Vehicle Code 1 section 23152, subdivision (a) (section 23152(a)) and section 23152, subdivision (b) (section 23152(b)). Grabham arguesd that section 23152(a) and (b) are different statements of the same offense and Penal Code section 954 trequires vacatur of one of his convictions. The First Appellate District concluded that section 23152(a) and (b) are separate offenses and Grabham may properly be convicted of both. 

Facts: California Highway Patrol Officers initiated  a traffic stop due to Grabham’s cellphone use and expired registration. After smelling alcohol coming from the truck and observing that Grabham’s eyes were red and watery and that his speech was slurred a full DUI investigation was conducted.

People v. Sup. Ct. (Espeso); BS 175803; 7/14/21; Los Angeles Superior Court App. Div. ruled no diversion for DUI

People v. Sup. Ct. (Diaz‑Armstrong); APR12100008; 7/27/21; Riverside Sup. Ct. App. Div.-ruled diversion available for DUI

There is a split on this question. The Riverside Superior Court appellate division says that 23640 does not bar diversion for a misdemeanor DUI.  

People v. Schulz (Cal. Ct. App., July 20, 2021, No. F080978) 2021 WL 3047264, at *2–8

Summary: Schulz appealed  claiming that the trial court abused its discretion when it declined to reduce his felony convictions for driving under the influence of alcohol to misdemeanors pursuant to Penal Code section 17, subdivision (b).1 He also claims that under the Estrada presumption, he is entitled to relief under Assembly Bill No. 1950 (2019–2020 Reg. Sess.) which amended section 1203.1, subdivision (a), to limit probation for felony offenses to no more than two years, subject to certain exceptions. (Stats. 2020, ch. 328, § 2.)

The court ordered the parties to file supplemental letter briefs pursuant to Government Code section 68081, addressing whether, assuming Assembly Bill No. 1950 applies retroactively, defendant’s convictions for violation of Vehicle Code section 23153, subdivisions (a) and (b), qualify for a reduction in the probationary period under section 1203.1, subdivision (a), given that subdivision (m) of section 1203.1, which was added by Assembly Bill No. 1950, excludes “an offense that includes specific probation lengths within its provisions.” (See Veh. Code, § 23600, subd. (b)(1) [“If any person is convicted of a violation of Section 23152 or 23153 and is granted probation, the terms and conditions of probation shall include … a period of probation not less than three nor more than five years ….”].

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.

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