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California Court Ordered to Reconsider Service Member’s Request for Diversion Program After 0.16 BAC DUI


The Court of Appeals, Sixth Appellate District recently issued an opinion ordering a trial court to reconsider a military service member’s request to enter into a diversion program. The defendant was an active duty member of the Army Special Forces Group, who was stopped by police after they allegedly observed him weaving back and forth while driving. The defendant’s blood-alcohol content was tested, and measured to be 0.16. He was charged with misdemeanor DUI with a blood alcohol concentration (BAC) of over 0.15 percent. Hoping to avoid a conviction and the potential collateral consequence it can bring, the defendant requested to enter a pretrial diversion program under the military diversion statute, Penal Code Section 1001.80.

Diversionary programs generally allow individuals to participate in a program for treatment and rehabilitation in lieu of progressing through the traditional criminal justice process. There are several diversionary programs in California. Under the Military Diversion Program statute, a trial court can place a defendant charged with a misdemeanor in a pretrial diversion program. The court must determine that the defendant: (1) was or is a member of the U.S. military, and (2) may be suffering from traumatic brain injury, post-traumatic stress disorder, substance abuse, sexual trauma, or mental health problems as a result of his or her military service. If the defendant completes the requirements of the diversion program, the charges are dismissed. These charges are also eligible for expungement.

In this case, the trial court denied the defendant’s request, and the defendant appealed. The appeals court held that the trial court improperly focused on the nature of the offense without considering the purpose of the diversion program. The court explained that the purpose of a diversion program is rehabilitation. Specifically, the Military Diversion Program is meant to help military service members postpone prosecution and obtain treatment for their conditions.

Here, the court denied the defendant’s request to enter the diversion program, mostly because of the nature of the offense. The trial judge stated that a DUI is “an inherently dangerous type of offense,” especially in this case, because of the defendant’s high BAC and “bad driving.” The appeals court decided that these considerations were improper, because the legislature expressly intended to include DUI offenses in the diversion program. In fact, the court noted that the legislature specifically addressed the occurrence of military veterans abusing substances as a way of self-medicating their conditions. Although the defendant had a high BAC, there was no exception for services members charged with a certain BAC. Therefore, the court determined that the trial court acted improperly in considering the nature of the DUI offense when it denied the request, and the appeals court ordered the trial court to reconsider the defendant’s request.

Contact a California Criminal Defense Lawyer

If you have been charged with a crime in California, contact an experienced California DUI defense lawyer. Attorney John W. Noonan represents defendants in adult and juvenile courts across the state from his offices in Dublin and Manteca. Attorney Noonan practices only criminal defense, and brings over 55 years of experience providing clients with the vigorous advocacy that they deserve, regardless of the charges they face. As a former district attorney, Attorney Noonan knows how prosecutors think, which helps him effectively defend his clients against any charges they face. If you or a family member are facing serious California criminal charges and need zealous representation, call us at (925) 886-4281 or contact us online at any time to schedule a free consultation with Attorney Noonan.