Orange County DUI Lawyer Blog

On again, off again. There has been much confusion surrounding diversion for misdemeanor DUIs. You may have read my earlier post where I discussed the differing opinions in the county superior courts. If not, a brief recap is as follows:

On January 1, 2021, a new law took effect which allows superior court judges to order diversion for most misdemeanors instead of a conviction. (Penal Code section 1001.95.)  If the defendant successfully fulfills the diversion order, the misdemeanor charge is dismissed forever more. As the law Is written there is a handful of misdemeanor offenses that are not eligible for diversion. Driving under the influence is listed among the exceptions.

However, there was a law already on the books, Vehicle Code section 23640, that stated a DUI charge cannot be suspended or stayed by the superior court in order to allow the defendant to participate in a rehabilitation program, nor can the court dismiss the charge upon the offender’s successful completion of such a program. This appeared to be a conflict with the new misdemeanor diversion law, at least for those charged with DUI.

For foreign nationals living or visiting the United States on a temporary basis, a DUI arrest has consequences that may affect the individual’s right to enter the U.S. in the future.  A non-immigrant visa holder faces the same legal consequences that citizen or permanent resident faces after DUI arrest, but with a big twist: Whether on a tourist (visitor) visa, student (study) visas, or employment visa, a DUI arrest may result in the automatic revocation of the visa.  The DUI arrest of an individual on a nonimmigrant visa, if not successfully challenged, can also result in difficulties on application to enter the U.S. in the future. It could even result in a denial of future entry into the U.S.

The United States government does not look kindly on temporary visitors and residents driving under the influence (that might be an understatement).  Under the United States Department of State policy, a nonimmigrant’s visa may be automatically revoked upon an arrest for DUI; not a conviction, just an arrest! (Although a conviction will also result in automatic revocation of the visa,) The policy allows the non-immigrant visa holder to remain in the United States for the duration of the visa, but once the individual leaves the United States, the visa is revoked and cannot be renewed. Should the individual desire to return to the U.S., an entirely new visa application process is required and due to the DUI arrest (or conviction) the individual will be required to undergo evaluation by a panel physician designated by the consular office for the presence of a “mental disorder;” here, that disorder would be alcohol dependence or abuse. This requirement applies if there has been one single arrest for D.U.I. with three calendar years or a DUI conviction at any time in the visa applicant’s history.

What does this mean for an individual in California (or anywhere in the U.S.) on a nonimmigrant visa who is arrested for DUI? First and foremost, it means that individual must contact a DUI defense attorney immediately. Since many visas are of short duration, there is a particular urgency to address the DUI arrest. The nonimmigrant has due process rights as long as he or she is in the U.S. Once outside the U.S., due process rights no longer operate.

Driving on a residential road, Ms. Binkowski approached a stop sign. She stopped, but her front tires were slightly over the limit line. A patrol officer observed this violation of Vehicle Code section 22450, which requires a driver approaching a stop sign to stop at the limit line. (Bet many of you didn’t even know that.) Ms. Binkowski was not making what’s colloquially called a “California stop” (a rolling stop), she stopped all right, but just barely over the limit line. The patrol officer conducted a traffic stop on Ms. Binkowski for the traffic violation she didn’t even realize she committed. Upon contact with Ms. Binkowski, the officer noticed signs that she might be under the influence of alcohol. Long story short: Ms. Binkowski was arrested for DUI pursuant to this stop.

Now this is a true story and one that ended up before the California Appeals Court. (People v. Binkowski (2007) 157 Cal.App.4th Supp. 1.)  Ms. Binkowski challenged the stop on a motion to suppress the evidence (Penal Code section 1538.5) arguing that the traffic stop violated her Fourth Amendment protection against unreasonable search and seizure. She argued that to pull her over for stopping just slightly beyond the limit line was unreasonable. The appellate court disagreed. As the court concluded, the intent of the statute is clear: It requires a driver to stop at or before the limit line, a precisely defined position.

While motions to suppress may be a tool to challenge a DUI arrest, Ms. Binkowski’s argument failed because the officer clearly observed her violating a precisely defined statute. However, the Binkowski case illustrates the limits of a motion to suppress.

Several years ago when self-driving cars were still in the experimentation phase, I wrote a blog speculating on the effect self-driving cars may have on DUI laws. Now that self-driving cars are becoming more commonplace, especially in Southern California, we are about to find out.

I have an acquaintance who claims he catches up on his sleep during his commute from Orange County to Santa Monica every morning while his car drives him to work. The latest iteration of his self-driving Tesla is pretty good at driving; it will even parallel park itself. But drinking and leaving the driving to your designated driver, i.e., your car, won’t get you off the hook if you happen to get stopped on the road. These cars require a conscious human presence as a “just in case” back-up and blaming your DUI accident on your car or ignoring the DUI laws because your car is driving just won’t fly (and neither do the cars, so far).

Recently, a local Southern California woman learned this the hard way. She had too much to drink and instructed her Tesla to take her home. While the car was driving on autopilot, she passed out. As the car was transitioning from the Ventura Freeway to the I5, the car hit a wall. The car kept driving, so apparently the impact with the wall was minor. But, shortly thereafter, a CHP officer pulled in front of the Tesla and the car stopped. When contacted by the officer, the woman was still asleep in the driver’s seat. The officer woke her and administered a DUI test. She was arrested for suspected DUI.

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.)