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Why The Rule of Lenity Should Be Invoked Regarding Diversion Eligibility For DUI Offenses

Grassi v. Superior Court (Div. Three of the Fourth District Court of Appeal – G060362) recently held DUI offenses are statutorily ineligible for diversion despite a 2021 diversion statute (Penal Code § 1001.95) that excludes specified crimes but not driving under the influence offenses. Its ruling was based on the Legislature’s failure to expressly repeal a forty year old statute (Vehicle Code § 23640) barring diversion for DUI offenses. The legislative history behind Penal Code § 1001.95 strongly indicates an ... Read More »

Diversion Now Possible For All Misdemeanor DUI Offenders in California

Effective January 1, 2021, all persons charged with misdemeanor DUI offenses in California (Vehicle Code sections 23152 and 23153) are arguably eligible to avoid a criminal conviction through diversion.  California Penal Code section 1001.95.  An old statute (California Vehicle Code section 23640) purports to exclude DUI offenses from all misdemeanor diversion programs, but the language of this new statute and the history behind it clearly demonstrates a legislative intent to include DUI offenses within it.  There are some trial courts ... Read More »

Is There a DUI Double Standard for Women?

In my previous post, “Are Women More Likely To Be Convicted of DUI?”, I discussed how today’s drunk driving laws and evidence tends to discriminate against women — specifically, I cited a scientific study showing how the lower levels of the enzyme dehydrogenase that breaks down alcohol are lower in women.  However, this is just one example of the problem. In another study, scientists found that women have lower “partition ratios” of blood to breath.  All breath machines in DUI ... Read More »

Are Women More Likely to be Convicted of DUI?

Arrest and conviction in a drunk driving case depends largely upon the breathalyzer or blood alcohol tests conducted on the suspect. If the test results are found to be .08% or higher, a conviction follows.  No distinction is made, of course, as to whether that suspect in the DUI case is a man or a woman. But what if it takes less alcohol for women to reach .08% blood alcohol than it does for men? Researchers at the University School of ... Read More »

Ambien/Zolpidem – Unconsciousness Defense

Did you know that “unconsciousness” may be a complete defense to a criminal charge, including the offense of driving under the influence? One may be deemed “unconscious” even though they are walking and talking. The only requirement for this defense in a DUI case is that there must be at least a reasonable doubt that the state of unconsciousness was caused by involuntary intoxication. One instance in which the defense arises is where the accused took a prescribed dose of ... Read More »

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 ... Read More »

“Stoned Driving”: How Do You Measure Marijuana Impairment?

There has been a lot of media attention lately to the development of breath-testing devices that claim to provide law enforcement with the ability to detect and measure the presence and amounts of marijuana in a driver suspected of so-called “stoned driving”.  The accuracy of these devices has yet to be widely-accepted in the scientific community.  See, for example, Is It Possible to Prove Driving Under the Influence of Drugs?   Will science and profit-hungry corporations ever be able to ... Read More »

What is Fair Punishment on a DWI?

What are judges and prosecutors concerned with on a DWI? One of their main concerns is recidivism. Contrary to popular belief, the average rate of repeat for a first time DWI is approximately 21%[i]. Most first time DWI offenders made a mistake and will never be back in the system. In fact, most are going to punish themselves far greater than what a court or prosecutor could do to them. Does BAC (blood alcohol concentration) on their DWI predict their ... Read More »

What is Gross Vehicular Manslaughter While Intoxicated?

If you or someone you love has been involved in a DUI-related car crash that resulted in death to another person, you may be facing charges of vehicular manslaughter while intoxicated. It is important that you fully understand what you are being charged with, what the penalties are, and how a qualified DUI attorney can help defend you against your charges. What is Gross Vehicular Manslaughter While Intoxicated? In California, gross vehicular manslaughter while intoxicated (Penal Code 191.5(a) PC) is ... Read More »

What You Should Know About Marijuana DUI in California

Recreational marijuana is not yet legal in California, but even if it is legalized, law enforcement will still be on the lookout for people who appear to be driving under the influence. California drivers should be aware of several things when it comes to marijuana DUI in California, including the state’s current drugged driving law, how people are charged with driving under the influence, how these crimes are punished, and more. One of the biggest differences between an alcohol-related DUI ... Read More »