Are there blanket preclusions for DUIs in military diversion?
In this 3/29/19 decision Wade v. Superior Court , Defendant was active duty military and was charged for DUI with the enhanced allegation of driving with a BAC at or above a 0.15. Defendant held no criminal record otherwise, and there was issues here also about the People claiming there was an accident with a hit and run when the record stated the opposite. Here, the People opposed Defendant being accepted into diversion, and the Trial Court rejected Defendant from the diversion because of the case facts.
Boiled down, the main issue is whether DUI with a 0.15 is automatically an “inherently dangerous” crime that would preclude military diversion. Or restated, as the People argued, that the facts of the case were so dangerous that Defendant should not be admitted into the military diversion program. The fast answer is no.
The Court goes through the legislative history of this diversion program per Penal Code 1001.80. “[T]he “primary objective” of the statute [is] rehabilitative, irrespective of the misdemeanor charged.” Even if there is injury or high BACs: “[A]s evidenced by the inclusion of misdemeanor driving under the influence resulting in bodily injury to another person, the Legislature was aware of the inherent dangers to public safety, which naturally are aggravated by an offender’s level of intoxication. Notably, however, section 1001.80, subdivision (l) does not impose a limit or carve out any exception based on blood alcohol concentration.”
Bad case facts are not the same as evaluating whether Defendant will succeed in this diversion program: “We conclude that the trial court’s considered criteria—including the “inherently dangerous” nature of the offense, Wade’s 0.16 blood alcohol concentration, his “nonpassive” role in committing the offense, and his purported “bad driving” at the time of the offense—was not an exercise of informed discretion because there is no basis on which to infer that the court related those criteria to Wade’s suitability for treatment and rehabilitation.”
Now, can the Court still evaluate Defendant to determine if they are not suitable for this diversion? Sure. But Wade tells us we can’t routinely exclude veterans simply because of a high alcohol level.
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