Wednesday , September 20 2017
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Military Diversion

California Penal Code § 1001.80 will likely be amended to clarify that misdemeanor DUI offenses (Vehicle Code §§ 23152 and 23153) are not precluded from military diversion eligibility.  The California Senate, by a vote of 38-0, has already passed SB-725 to add proposed subsection (l) to California Penal Code § 1001.80 as follows:

Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a pretrial diversion program in accordance with this section includes a misdemeanor violation of Section 23152 or 23153 of the Vehicle Code. However, this section does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.

The bill has been sent to the California Assembly and will only need a 2/3’s vote for passage before it is sent to the Governor for his signature or veto.  That the Senate unanimously passed it is a strong indication of the Legislature’s intent that DUI offenses are not to be excluded from military diversion.

A split of authority presently exists in California’s appellate courts on whether California Vehicle Code § 23640 excludes such offenses. Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, rev. granted, Calif. Supreme Court (Docket No. S237734), holds that Vehicle Code § 23640 does not exclude military diversion in DUI cases, whereas People v. VanVleck (2016) 2 Cal.App.5th 355, rev. granted, California Supreme Court (Docket No. S237219) holds otherwise. California Rule of Court 8.1115(e)(1) permits the citation of both cases for their “potentially persuasive value,” and trial courts are still at liberty to adopt either view. A decision by the California Supreme Court has been anticipated for later this year, but If SB-725 is signed into law it will essentially render review moot.

If you ever served in the military, whether or not it involved combat, you may be eligible for military diversion in lieu of being convicted of driving under the influence. For this any other questions you may have about California DUI law, contact Bay Area DUI defense attorney Paul Burglin who is Board-Certified in DUI Defense (as approved by the American Bar Association).

About Paul Burglin

Paul Burglin
Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been in practice for more than 30 years and was formerly a partner at one of the oldest Marin County law firms (Mitchell, Hedin, Breiner, Ehlenbach & Burglin). After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense and co-authors the two-volume treatise, "California Drunk Driving Law." He is on the Board of Regents with the National College of DUI Defense (www.NCDD.com) and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program.

If you would like to contact the author, please visit: http://www.burglin.com


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