Diversion law sows confusion and disparity in DUI cases – San Bernardino Sun


California’s new law, which allows judges to authorize drunk driving offenses for the first time, is creating a swamp in the court system, criminal lawyers and prosecutors are challenging its interpretation, and judges are clear. Conflict over lack.

A lawyer has described the law introduced as Parliamentary Bill 3234 by Congressman Filtin from D-San Francisco as the most contentious issue in the state since it came into effect on January 1 last year . Prosecutors in Riverside, Los Angeles and Sacramento County challenged it in their superior court appeals department.

Opponents argue that the new law, which corresponds to the state’s criminal law, is incompatible with existing states Vehicle code section This prevents judges from allowing drunk driving offenders to be diverted in lieu of criminal penalties.

At the judicial level, there was a clear disparity between who was allowed to hijack (possibly the charge could be dismissed) and who was not allowed to hijack.

Riverside County District Attorney Mike Hestrin (File Photo: Will Leicester, Inland Valley Daily Bulletin / SCNG).

“Fly in the wind”

Prosecutors, criminal lawyers and lawmakers have sought clarification from the High Court or a new law to resolve the disputes.

“This is what is happening now. It’s like wildfire running through the courthouse, ”said Lara Gresley, a riverside criminal defense lawyer who specializes in drunk driving cases. In June, she asked the state Supreme Court to weigh her down after a Los Angeles Superior Court judge dismissed her claim of allowing the client to turn away.

The Supreme Court declined to review Gresley’s proceedings. She thinks it is because there was no appeal at first instance on this issue.

Gresley said the new law has tormented judges who are struggling to decide which way to go.

“They have been arguing for several months in a row, hoping for the opinion of the Court of Appeal,” Gresley said. “Everyone wants an appeals court ruling because all California courts are binding. Now we’re just floating in the wind. We have to understand this.

In class

Since Tin’s Law was enacted, judges in higher courts have committed offenses primarily based on the seriousness of the crime, including the defendant’s blood alcohol level, speed, location of the crime, and whether property has been damaged. been damaged. We have the discretion to authorize the diversion of a criminal impaired driving case.

Pomona Police Department Detective J. Dorgobin monitors the drunk driving checkpoint in Pomona on December 21, 2018. (Photo courtesy of Will Lester, Inland Valley Daily Bulletin / SCNG)

Drunk driving offenses that injure other people are generally charged as felonies and are not eligible for diversion under the law.

Prosecutors immediately filed a petition with the appeals department of their respective high courts, claiming that alcohol-driving offenders were not eligible for diversion due to section 23640 of the vehicle code.

On July 27, a three-judge panel from the Riverside Superior Court’s Appeals Department dismissed District Attorney Mike Hestrin’s allegations, and the DUI defendants were in fact routed before trial under the new law. . I voted 2-1 that I was eligible. Hestrin and Senior Assistant District Attorney Chris Buffard filed a motion after the judge granted the three defendants diversion in separate proceedings for drunk driving.

Two weeks ago (July 14 in Los Angeles County Superior Court), an Appeals Department judge unanimously ruled that an impaired driving accused did not qualify for the diversion. When the state legislature approved AB 3234, they claimed they were “silent as to whether impaired driving could lead to misappropriation of misdemeanors,” and the new law did not abolished the provisions of the law on vehicles. ..

A spokesperson for the court said the Orange County Superior Court had ruled that impaired driving offenses did not qualify for diversion, while others declined to hear the petition raising the issue. Kostas Kalaitzidis said in an email.

Disparity of judgment

In his petition to the Supreme Court, Gresley said the lack of Court of Appeal rulings on the dispute had resulted in “a great disparity in judgment” among judges of the state’s trial court.

“The lack of guidance on the matter has resulted in inconsistent judgments across the state,” Gresley said in his petition.

She cited 11 cases of drunk driving in eight top state courts, including Riverside, Orange and Los Angeles counties. In the eleventh case, the judge said further consideration was needed.

Get more distraction

In Riverside County, more than 12 impaired driving defendants have been allowed to confuse since the new law came into effect, said Public Defender Thule Dialo, Deputy Public Defender. However, some judges are still hesitant to allow diversion, even after the appeals department ruled in its favor on July 27.

Martin Schwartz, Public Defender for Orange County, said the drinking and driving conviction is unique in that it imposes hefty fines. Probably not important to average people, they have a dramatic impact on the people his office tends to advocate the most, the poor.

Schwartz did not comment on the number of impaired driving defendants allowed to be hijacked, but said most requests were denied.

He couldn’t provide a number, but Jeff Canti, deputy public counsel in San Bernardino County, said he had only seen “a handful” of drunken driving felons since. January. .. He accepts the new law.

“It follows the trends that we see in California, providing different access to services and addressing the root causes that lead people to our criminal justice system,” he said. “Much more beneficial than punitive.”

San Bernardino County District Attorney Jason Anderson disagrees. Due to the high recidivism rate of drunk driving felons and the public safety risks they pose, he said it was important to convict him for the first time in order to avoid a second case. . He argues that the diversion is tantamount to “giving people a pass for their first drinking and driving”.

Patricia Rirella, Executive Secretary of Mothers Against Drunk Driving, California. (Photo courtesy of MADD)

MADD reacts

Patricia Rirella, executive director of Mothers Against Drunk Driving in Calif., Said AB 3234 not only gives DUI offenders a free pass, but much more than her organization has accomplished in its 40 years of operation. story. Said to cancel.

“From our perspective, this undermines the severity and progression of years of crimes committed to reduce impaired driving and impaired driving deaths,” Rirella said.

It states that affected drivers kill more than 1,000 victims a year in California and more than 10,000 people nationwide, and that the same repeat impaired driving perpetrators appear repeatedly in classes ordered by the court. He said he was watching.

But there are also questions about the punitive nature of California’s drinking and driving law and whether it is really effective in preventing criminals from repeating the mistakes of the past.

At a Senate Public Safety Committee hearing in July, Senator Nancy Skinner said that while drunk driving prosecutions have gotten tougher year on year, drunk driving cases have become more severe with each passing year. drunkenness has decreased by only 4% over the past 22 years. Noted.

“I haven’t seen any studies showing that diversion is less effective in reducing impaired driving,” Skinner said. “Obviously, more data is needed to fully understand this, but there are signs that some detour programs are more effective. “

Legislative measures

Legally, the bill was provided to clarify or tighten up Tin’s bill.

Introduced by Senator Steven Bradford, D-Gardena, SB 421 limits detours to those who have not previously been convicted of impaired driving and have not taken a detour in the past decade. For those authorized to confuse, the bill will require defendants to install immobilizers and participate in education and counseling programs.

Two major Senate committees approved Bradford’s bill.

Another bill, AB 3234 by Congressman Tom Lucky, was designed to exclude drunk driving under Tin hijacking. However, the bill was rejected by the Senate committee in July.

Lucky said he would submit the bill in the next session. For him, the fight is personal. As a retired CHP officer who worked in LA County for 28 years, he has seen dozens of DUI driver crashes and informed more than 40 families that their loved ones have died in an accident related to DUI.

“I have personally arrested over 1,000 drunk drivers. I’ve seen literally hundreds of conduct disorder tragedies, and it’s all preventable, and it’s a great tragedy. said lucky.

Change of heart

When Governor Gavin Newsom signed Tin’s Bill on September 30, 2020, he declared impaired driving one of the qualifying crimes.

“I am concerned that the crime of impaired driving has not been excluded from the diversion program. I will try to resolve this problem quickly with Congress during the next legislative session, ”he said at the time. paddy field.

Tin has changed her mind due to the unintended consequences of the law over the past nine months and its statewide repercussions.

When Lucky AB282 appeared before Congress on May 27, he was one of more than 60 members of Congress to vote for him. The bill was passed and only nine lawmakers voted against it. However, two months later, it was rejected because it was submitted to the Senate Committee on Public Security.

Mr Tin said the main concerns raised about crimes being diverted during the bill’s legislative process relate to domestic violence and sexual assault. The drinking and driving offense did not emerge during discussion, he said in an email.

He said he was primarily concerned about the harsh treatment of first-time intoxicated criminals and “a one-size-fits-all approach to a dysfunctional criminal justice system.”

But now he wants to correct the loopholes in the law.

“The legislative process allows debate and compromise. Just because a law is enforced doesn’t mean it’s all, ”Ting said. “I am always happy to listen. But a legislator does not have the power to make changes. This requires the approval of the majority of both homes and the governor.

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