NoticeCal. Super. - 6th Dist.August 16, 2021SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA APPELLATE DIVISION THE PEOPLE OF THE STATE OF N0. CALIFORNIA, Petitioner, V. SANTA CLARA COUNTY SUPERIOR COURT, Respondent, CYNTHIA LIDDY, Real Party in Interest. Santa Clara County Superior Court, Case No. C2017455 The Honorable Benjamin Williams, Commissioner PETITION FOR WRIT OF MANDATE OR PROHIBITION EXHIBITS A-K (BOUND SEPARATELY) JEFFREY F. ROSEN, SBN 163589 District Attorney SHERYL LEUNG, SBN 238229 Deputy District Attorney County 0f Santa Clara County Government Center West Wing, 70 W. Hedding Street San Jose, California 95 1 10 Telephone: (408) 299-7400 Direct: (650) 324-6411 Email: sleung@da0.sccgov.org Attorneys for the People/Petitioner Filed August 16, 2021 County of Santa Clara Superior Court of CA Clerk of the Court 21AP002744 By: raragon Env# 7067349 21AP002744 Exhibit List Exhibit A - Misdemeanor complaint in People v. Cynthia Liddy, Santa Clara County Superior Court case number C2017455, filed December 22, 2020. Exhibit B - Case minutes in People v. Cynthia Liddy, Santa Clara County Superior Court case number C2017455, printed August 13, 202 1. Exhibit C - Defendant’s Motion for Pretrial Diversion Pursuant t0 PC 1001.95 from People v. Cynthia Liddy, Santa Clara County Superior Court case number C2017455, filed May 12, 2021. Exhibit D - The People’s Opposition to Defense Motion for Diversion People v. Cynthia Liddy, Santa Clara County Superior Court case number C2017455, filed June 7, 2021. Exhibit E - Defendant’s Reply Re Motion For Pretrial Diversion Pursuant t0 PC 1001.95 from People v. Cynthia Liddy, Santa Clara County Superior Court case number C2017455, filed June 8, 2021. Exhibit F - Transcript from June 11, 2011 Hearing Granting Misdemeanor Diversion from People v. Cynthia Liddy, Santa Clara County Superior Court case number C2017455. Exhibit G - 1987 DMV Evaluation of the California Drunk Driving Countermeasure System from the United States Department 0f Justice website at https://www.ojp.gov/pdffiles l/Digitization/ 1 1 1960NCJRS .pdf Exhibit H - Bill History and Analyses for AB 3234 from the California Legislative Information website at https://leginf0.legislature.ca.20v/faceslbillAnalvsiSClientxhtm 1?bi11 id=201920200AB3234 Exhibit I - Opinion of Appellate Division from People V. Superior Court 0f the County of Los Angeles (Beau Espeso) of Los Angeles County Superior Court, BS 175803, No.0TR04543, filed July 14, 2021, avail. at 2021 WL 3288364 Exhibit J - Opinion of Appellate Division from People V. Superior Court 0f Riverside County (Sebastian Andres Diaz-Armstrong, Joseph Samuel Spinelli, Jr., Jessica Ortiz) Exhibit K - Leung Declaration EXHIBIT A 39 DocuSign Envelope ID: ASOB5850-3BCB-4E88-9028-76758C888FOA Filed SUPERIOR COURT 0F December 22, 2020 CALIFORNIA Clerk of the Court COUNTY 0F SANTA CLARA Superior Court 0f CA HALL OF JUSTICE County of Santa Clare 0201 7455 . By: nzepeda THE PEOPLE 0F THE STATE 0F CALIFORNIA, Plaintiff, MISDEMEANOR COMPLAINT DA No: 201222346 CEN . vs. 20028570 EGC460 CML SCIT 01/21/2021 CYNTHIA MICHELLE LIDDY (04/10/1986), 3457 SUGARCREEK CT SAN JOSE CA 95121 BREATH 0.08 Defendant(s). The undersigned is informed and believes that: COUNT 1 On or about November 21, 2020, in the County 0f Santa Clara, State of California, the crime 0f DRIVING UNDER THE INFLUENCE OF ALCOHOL, in violation ofVEHICLE CODE SECTION 23 1 52(a), a Misdemeanor, was committed by CYNTHIA MICHELLE LIDDY who did drive a vehicle while under the influence of alcohol. Pursuant to Vehicle Code section 23593(a): "You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous t0 human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder. " COUNT 2 On or about November 2 1, 2020, in the County 0f Santa Clara, State of California, the crime of DRIVING WITH A BLOOD ALCOHOL LEVEL OF 0.08 OR MORE, in violation ofVEHICLE CODE SECTION 23 152(b), a Misdemeanor, was committed by CYNTHIA MICHELLE LIDDY who did drive a vehicle While having 0.08 percent and more, by weight, of alcohol in his or her blood. Pursuant t0 Vehicle Code section 23593(a): DocuSign Envelope ID: A3035850-3BCB-4E88-9028-767580388F0A "You are hereby advised that being under the influence of alcohol or dmgs, 01' both, impairs your ability t0 safely operate a motor vehicle. Therefore, it is extremely dangerous to human life t0 drive while under the influence 0f alcohol or drugs, or both. If you continue t0 drive while under the influence of alcohol 0r drugs, 0r both, and, as a result 0f that driving, someone is killed, you can be charged with murder. " DISCOVERY REQUEST Pursuant to Penal Code sections 1054 through 1054.7, the People request that, within 15 days, the defendant and/or his/her attomey disclose: (A) The names and addresses 0f persons, other than the defendant, he/she intends to call as witnesses at trial, together with any relevant written 0r recorded statements 0f those persons, 0r reports 0f the statements 0f those persons, including any reports or statements 0f experts made in connection with the case, and including the results of physical 0r mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial; (B) Any real evidence Which the defendant intends to offer in evidence at the trial. This request is a continuing request, t0 cover not only all such material currently in existence, but all material which comes into existence to the conclusion ofthis case. Further, attached and incorporated by reference are official reports and documents of a law enforcement agency which the complainant believes establish probable cause for the pretrial restraint of defendant CYNTHIA MICHELLE LIDDY, for the above-listed crimes. Complainant therefore requests that the defendant(s) be dealt with according t0 law. I certify under penalty 0f perjury that the above is true and correct. Executed on December 14, 2020, in SANTA CLARA County, California. DocuSigned by: E (Aw,mzanana'crEaaw._. L C01 0n 13517 ( Aaron Adair 22398) 00340 (408) 467-5400 KQ12895 CHP HAMILTON/ D453/ MISDEMEANOR/ KC EXHIBIT B 40 3U rmLLur Juana: was: Nu. .QO‘UQSS 190 W. HEDING GEN 357D SANJOSE. M95110 0112112021 9mm -° 52 f_§?fLEVS- 1mm, cwmm MICHELLE 4: s CA 05514534 DEPéoveiczN ’ 3457 SUGARGREEK CT H _ , Bflan Em F SAN JOSE CA: 95121 STATUS mmmdm:WPLMNT JUDGE HON.GARcm-SEN.GHRISHNE www-zawmonmm CHARGES , ua1vcza152(a)M, oozvcmszwm 5 I \ \ \ ‘2..\ \~. 30 BSL NEXT APPEARANCE D Defendant Present m Not Present m Atty Present “1.1M Fn\M AD l PDI IDO lSpeclal Angenerai > D Arr'd D Adv m Arr Wav U Amend Complaint D Arr D Plea D IDC D PTC U Prob I Sent D Interpreter Z NG D Entered by CRT D NGBRI I Adv D Baill OR/ SORP U VOP D Further D Bail Apply D Balance Exonerated D Denies prions lAllegallons/ Enhancements lRefusal D Readiness D Jury D CT D TE: Bail: D Exoneraled D Forfeited Bond# TW D TNW D TWIWD D TWSentence D Ref‘d D Reassumplion Filed D Forfeiture Sel Aslde l Ball Rein D LDM: D LDT: D Def Ordered lo Appear D P36I PDP Review U S Costs Within 30 Days to Coun D ReflAppl PD/AD l IDO D Con Deci D Adm A/F D Appearance Is waived D i! proo! is In file SORPIOR D Revoked D Reinstated D Reilevad Appt'd D Crim Proc SUSD D Doubt Dec! Pur PC1368 D BW Ordered 5 D Stayed D To Issue D Hrg on Mln PC1050/1538/SDT/PllchessIPC1203.4 U Cert to Gen Juris U No Clle ReleaselSClT D No Request D Cash Only D Granted D Denied D Submitted D Off Cal D Slip to Comm BW: D Set Aslde D Recalled U Remain Out D Proof o! D MDAI COM Amended (M I INF) cl. lo D Coun1_Amended lo D (M I INF) vc12500(a) I vcza1os(a) [I Pur v0231oa.5 I] DA Stmt Fned omen PLEA Conditions D Includes VOP U Add to Cal D Vacate pending date D Dismissal I Striking/MDNCOM U Subm lime of Senl D Adv Max Pen I Prob I Immig I Appeal D Reg P0290 D FSF D Fineleees D PC29800/29805l30305/666NC14607.8N023593 U Harvey Slip Wav Right lo D Counsel D Coud/Jury Trial D Subpoena I Confront I Examine VWlnesses D Sell-incrimination D Writlen Waiver filed D Plea l Absenlia filed D COP D GUILTY D NOLO CONTENDERE lo charges & admits enhancements I allegations I prlors U Arbuckle D Faclual Basis found D Findings slaled D Prop 36/PDP Granted/ Unamenable l Refused! Rein lTerm'd Fee S D APO Full Rpthafves Referral D CR1 10 Issued D BOF1022/CR21 0 Filed D Sent Suspended D Sent Modifiable by Judge FINESIFEES: D Report lo DTAC to set up pyml plan w/in 30 days D of release U PROBATION DENIED Pay to: D DTAC D Court! Today D Traffic D Audit # PROBATION D lmposllion of sentence suspended for probation period COUNT S + PA $ D COURT D FORMAL PROBATION GRANTED FOR Days / Mos I Yr§ COUNT S + PA $ EMAT $ D Report lo APO within Days U Terminated D Upon Release AIDS I CPP S + PA $ D Perform Hrs Volunteer Work as directed PO I SAP D in lieu of finelJail LAB S + PA $ D May do in County DRF I RF s Add'l RF s Susp'd P0120244 I45 U Not drive wlo valid DL 8. Ins D Adv VCZSGOO D HTO D Re-refer AEF 5 Original Fine S U MOP D FOP D 12 hrs D 3mos U 9 mos Enroll within days SECA S CTS PC2900.5 5 D DL Susp/ Reslr'd l Rvk'd for D [ID Nol/ Ordered l Rmv'd for Yrs ICMF S TOTAL DUE S D No conlact with victim or family] co-defendants unless appr by APO D Victim Present ICIN S Payments Granted I Modified / Pay wlln 90 days D PO issued] modllerm'd Exp D No Contact/Peaceful AR $ $ lMo beginning D DSA filed U Not ownlpossess deadly weapons D Agency: SHELTER S FINE STAYED D Deslroylrelurn weapon Case No: DV $ Committed @ $ lday D May Pay Out D Stay away {ram A'ITY S Consec/Conc to D Submit Search/Tesling D EdudVoc ng/Empl U No alcohol I drugs or where sold Finel Fees U Deemed Satisfied D Commuted D Collect Civilly D Subsiance Abuse. Psych, Theft. Anger Mgmt. DV. Parenting. Mlnors In Possession D Stayed pur Duefias D P0296 (DNA) I] Pc1202.1 HIv Test/ Education D Obey Au Laws P/INVEST s D PISUP $ IMo E! Waived VOP: D Wav U An’d D Admilleenies Vlol D Court Finds VOP/ No VOP D CJAF $129.75/5259.50 S U Add'l FEE waived Prob Rein I Modl Term'd l Revoked I Remains Revoked / Ext lo - D SECA. ICMF. ICIN. CJAF. PINVEST. PSUP FEES NOT COND OF PROB D Original Terms & Conditions Except as Amended herein D Gen D Restil $ lo D Co-lermlnous with D No Further Penaltles l Reviews D Restit Admin Fee NTE 15% I Walved Diner: JAIL D See Attachl Pg D Dress oul for Trial D Shower D Haircut Counl M VinIalion CTs = ACT+ ____ U PC4019 D Va = Total Total'ran-n County Jail D StralghtTime D WWP PC1209 Fees D Waived D Court Rec Alll Except D EMP / PSPI ERP / RCP/WWP /IN CAMP I NP D No ERP D Sent Deemed Served U May do WWP through SAP D In County U Consec D Concto D Bal CJ Susp D All but DayslMos/Yrs D On Cund Complete Residential Trealmenl Prgm D Serve Consec MOITUIWEn‘HIFRISAISU U Pre-process AMIPM D Stay I Surrender lo @ AM/PM/Sooner D REMANDED-BAIL$ D REMAiN AS SET U N0 BAIL D COMMI'ITED U RELEASED D OR D SORP D JAC PHONE ASSM'T D AS COND OF SORP D BAIL INCREASE l REDUCE D TO PRGM AS REC BY JAC-DOC TO ARRANGE TRANSPORT UPON AVAIL BED D STATUS Remains DISTRIBUTION: ORIGINAL - FILE. GREEN - DOC. BLUE -- DOR, PURPLE - PROBATION. BROWN - DEFENDANT nofic'e To' PROBATIONER 'F‘L‘, ‘h.’ Thb'roiffi'hlylfeh'lflal‘k'eiydbfself with' lha co'n'ditions of your Pmbalion, as a vinlallon of any 0L, the terms may render you liable lo the following penalties However. if you falthfuliy ‘ perform your duties during your probationarx period you are entitled to the privileg es j , hereinafler sel_forth: Sm Section‘ 1203 of [tie California Penal que ’ l '- . (THE DEFENDANT: (V /.- 2 ,. “ 1,- -_ Shall Immediately upon hisfher release tram cuslody. il’ placed on Formal Probation. report In person lo the Probation Department of the County o! S'anla Clara and furnish such Information regarding his/her self as may be requested The defendant shall while under Probation, remain in the custody or the Probation Dépanmenl and shall report in person to the Probation Officer once each month,- or as otherwise directed 2. Shall advise the Probation Officer of pla'ce of residence at all limes and shall r101 leave or m_ova tram the County or State of residence wilhou! prior approval o! the Probation Officer.- ~ 3. Shall seek and obtain employment as approved by lhe Probalion Officer. 4. Shan, while on either coud or formal probation. conduct his/her self honestly; obey all laws and rules. orders and regulations of the Coun andlor Probatlon Officer. FURTHER CONDITIONS PURSUANT TO VCZSGOD: 1. Shall not drlve any vehicle with any amount 0t alcoholldrugs in hislher body or blood. 2. Shall not refuse Io submit to chemical lest of hislner blood. breath or urine. 3. Shall not drlve any vehicle without liablllty Insurance and~shall provide proof of insurance if requested to do so by a Peace Officer. 4. Shall nol commit any criminal offense and shall obey all laws. PRIVILEGES. You have the n‘ght to have your "record cleared" which means that underlhe lollowing condllluns you have the right to wilhdraw your plea of guilty or nolu contenders 0r have a verdict oflfinding {)I’ guilt set aside and 10 then enter a plea cf not guilty and have the Court dismiss the charga{s} against you and release you I‘rori: any {urlhar penalties and disabilities resulting from lhe within charge(s). 1. At lhe conclusion of your Probaflonary period (Formal or Court Prpbation) if you have otherwise complied with all orders of Couri and if there are no charges ‘ pending against you (PC1203.4). 2; After one year has elapsed fo1lowlng the pronouncement of judgment if you have not been placed on Probation and if you have otherwise led a good and lawful liie and there are not charges pending against you_[P.C1203.4 (3)]. EXCEPT that said offense(s) can be charged against you as a prior conviclion in lhe case of any criminal proceedings whlch may be chatged against you at a later date. and except further [hat such (prior oonvlcllon) shafl be considered a conviction [or the purpose of revoking or suspending your privilege la drlve a motor vehicle where appropriate [PC1203.4 1203.4(a) and VC13555] ' To apply for a record clearance in all the above Instances, you must contact the Santa Clara County Probation Office at (408) 435-2061. Any person convicted of a felony, the accusatory pleading o! which has been dismissed pursuantto Secti'on 1203.4 of the Penal Code. may file a Petition [or Certificate of Rehabilitation and Pardon provided that he/she has not been lncarceraled since the dismissal of accusatory pleading, is not on Probation for the commission of any other [elony. and presents satisfactory evidence of three years residence in California priorto the filing of a Petition. . . PENALTIES: At any tlme during your Probationary tenn any Probation Officer may with or, without a warrant re-arresl you and bring you before the Court. and If sald Coun determines . lhal you have violated any of the terms of your Probation. have engaged in any crimina1 practice, or have any criminal associations. it may revoke and terminate your Probation, and without any further hearing pronounce judgment of imprisonment and deliver you over to lhe proper officers lo serve your sentence! as lf Probation had never been granted. ‘ :‘inrxujif ‘~ 1r.“ 'II nu .jr'! kl”. ‘Addl- Additional " 1 . ' DA -- Dislrici Anomey v DRP Day Reporting Program v .-.'r5". '4'}: ‘1' ’_. '__' c" .1 371 :‘r' ‘_"L'- 1.." )Ii ACTmActual v 4‘ . ,» ,. .-.- v .1935: Proposmun 381rAD- Allernale Defender' - -- - - - - AdeAF. Admoniu'nn of Auy Fans 1“ Adv Abulsdd---""-"* " AEF~ Alcohol' Edtjcaugm- Fee' fl. . .' APO- Adult Probafién ulfice ‘ ' App--Appearan® App! - Appointmenl Appr - Approved IAR~ scoounis Receivahlg ~ 'I 'I._ A'rr-Nraignménl ' h ' ' Arr’d- Arraigned ASSM'T - Assessment Atlachl - Altachmenl Atlyl- attorney Bal ~ Balanca BW- Bench Warrant . Cal- Calendar Cert to Gen Juris- Cedified lo General Jurisdiction CJ- County Jail CJAF- Crlmlnal Justice Admln Fee COM- Courts Own Mo1ion Qomm 7 Commissioner Co_nc_ -.- Concunenl COND‘ - Condition ' Con Dec- Conflict Declared Consec - Consecutive COP - Change of Plea CPP - Crime Prevenlion Program Crim Proc Susp ~ Criminal Proceedings Suspended CRT - Court CT -- Court Trial cl. - Counl I CTS - Credit {or Time Served Dec1 - Deciared De! - Defendant DL- Dflvers L‘ioense . DOO- Depanmenl of Correcllons DPF- Drug ProgramFee DRF- Diversion Restltuiion Fee DSA - Defendants Slalement of . Assets DTAC - Department o! Tax and Collections . DV -- Domestic Violence Educ - Education ' EMAT-- Emergency Medical Alr Transportation EMP - Electronic Monitoring Program Emp - Employment Enhs - Enhancements Ent'd - Enleled - ERC ~ Early Resolution Calendar ERP - Early Release Program Exp - Explres Ext - Extended FAR - Felony Advance Resulullon FOP - Firs} oifcndar Program FSF - Future Serious Felony Gan - General Hrg - Hearlng Hrs- Hours ' H_~TO- Habitual Traffic Offender ICIN- Conviction Assessment Infraction ICMF - Conviction Assessment MisdJFelony IDC - Identification of Counsel IID - Ignilion Inleflock Device lmmlg - Immigration INE - lnfraclion. Ins - Insurance JAc -- Jall Assessment Cootdlnalor LDM - Lasl Day for Motions LD_T - Last Day for Trial MDA - Motion by Dislrict Atlorney M - Misdemeanor Mod - Modificalion I Modified MOP - Munlple Offender Program Mos - Months Min - Motions NG -- Not Gullly NGBRI -- No! Guilty By Reason of Insanity NP - No Programs NTE - Nol lo Exceed OR - Own Reoognizance 0RD - Ordered PflNV- Presanlanoa Investigation -FI=B 4 I - PAL Pennny Assonsman! JPD- Publicfleféndar ' PDP- Prgirfal Diversion Program Pén- Penelly PO- Protective Order Prob - Probation Pmc- Proceeding ' I PSP- Public $_ch Program PSUP- Probalio‘h Supervision PTC- Pretrial Conference Pur - Pursuant Pyml- Payment 'u RCP - Ragimentad Corrections Program Rec - Recommends Re! - Referred Reg - Register Rein - Reinstated RF - Restitution Fee Rpl - Report Rptr - Reporter Resu'd - Reslrlcled ' Reslit - Rastitulion Rmv‘d - Removed Rvk'd - Revoked ‘ SAP - Sentenclng AllemaUVB Program SECA - Court Security Fee I Sent - Sentenced . SORP - Supowlsed Own Recognlzanco Program Slip - Slipulallon Subm - Submitted Susp - Suspended TE - Time Estimate Term'd - Tenninaled TNW - Time Not Waived ng - Trainlng TW- Time Walved TWIWD- Time Waiver Withdrawn \flol- Violation Voc Vocational _ VOP - Violau'on of Probaflon Wav - Waived WWP - Weekend Work Program Yrs- Yeats 1nmur Juanita: wan: Nu. .LW'I(m mowrimmm GEN 291128570 SAN JOSE: CA 951 10 DATQSN'IW‘E twp“ DEPT. 52 PEOPLE vs. UDDY. CYNTHIA MICHELLE u' 411011988 ' CA DSS‘MEM WY BK:N LKA 3457 SUGARCREEK CT . mummy. .samam 590460 F SRN JOSE CA, 95121 ' CLERK W HON.mm mmsmgv.w “Emma-223mmmun 1mm: E g C8- JUDGE lc“mm mmgga m PTA 25:33;in lmu DA d D APfip-a :fi‘kagrjmm Vacant 3121mm cHARses ”1520.. oozvomaz M i ‘. ‘ ' '.a o-mgu UH). V ‘30 05) NEXT APPEARANCE A D Defendant Presentw Not Present EfAtty PresentA AD I PDI IDO ISpecIal App/General D Arr'd D Adv D Arr Wav D Amend Complaint U Arr U Plea D IDC PTC U Pmbl Sent D Interpreter D Sworn D NG D Entered by CRT D NGBRI I Adv D Ball! OR/ SORP :E VOP D Funher D BallApply D Balance Exoneraled D Denies priors [Allegations] Enhancements (Refusal D Readin- - ‘3 Review D Ball Exoneraled D Forfeited Bondfi D TW D TNW D TW lWD D 1W Sentance U Referre u ,_ U Reassumptiun Flled D Fadeiture SetAsde U Bail Rein D LDM: D LDT: D Defendant Ordered to Appear U $ Costs Within 30 Days lo Court D Ref! Appl PD I ADI IDO U Con Decl D Adm NF D Appearance Is waived U i! proof is ln file SORP/OR U Revoked D Relnstated D Relieved Appl‘d D Crim Proc Susp D Doubl Decl Furs P01 388 U BW Ordered S D Stayed D To Issue D Hrg on Mln PC1050I1538/SDTIPilchess D Cenlfied lo General Jurisdicllon D No Cite ReleaseISCIT D No Request D Cash Only D Granted D Denied D Submitted D Off Cal U Stip to Comm - fled U Remain 0 t D Proof of "1*a .Bw 'lD MDAI COM Amended (MIINF) count to U Count __Amended t0 D (WINF}VC12500(3)I VC231fl3ta) D Furs V023103.5 U DA Slml Flled Olher PLEA Condillons D Includes VOP U Add Lo Cal D Vacate pendlng dale D Dismlssal/ Sln‘klnglMDA/COM U Subrn llme o! Sent D Adv Max Pen I Probl Immlg I Appeal D Reg HS11590/P0290 U FSF D Fineleees D P029800/29805/30305/666NC14607.8NC23593 D Harvey Stip Wav Right lo U Counsel U Court] Jury Trial D Subpoena/ Confront] Examine Witnesses U Self-incn'minalion D Written Waiver filed U.Pleal Absentia filed U COP D GUILTY D NOLO CONTENDERE to charges 8- admlls enhancements] allegations I priors D Arbuckle D Faclual Basis found D Flndlngs stated D Prop 36/PDP Granted / Unamendable l Refused I Rein [Term Fee $ - D APO Full Rpthaives Referral D CR1 10 Issued D BOF1022/CR210 Filed U Atty concur wl plea admission D Sent Suspended FINESIFEES: U Report to DTAC lo set up pymt plan w/ln 30 days D o! release D PROBATION DENIED _ Payto: U DTAC U Coufl/ Today U Audit # PROBATION D Imposition of senlance suspended for pmbalion period s COUNT_$ + PA $ D COURT U FORMAL PROBATION GRANTED FOR Days! Mos/ Yrs COUNT___S + PA $ EMAT $ D Report to APO wilhin Days D Terminated D Upon Release AIDS I CPP S + PA $ SORP $ D Perform Hrs Volunteer Work as directed APO l SAP / CAP D in li_eu o! finelJaiI LAB S + PA S D May do In County l DRF I RF S Add‘l RF $ Susp PC1202.44I45 D Noldrive w/o valid DL 8 Ins D Adv V023600 U HTO D Re-refer AEF S Orlglnal Fine $ D MOP D FOP D 12hrs D 3 mos D 9 mos Enroll within days SECA $ CTS P629005 $ D DL Susp] Restr'd / Rvk'd for D llD Not I Ordered I Rmv'd Term '- Yrs ICMF S TOTAL DUE S D No contact with vlcllm or family! co-defendants unless appr by APO D Victim Present lClN $ Payments Granted I Modified I Pay w/In 90 days D P0 Issued I mod lterm'd Exp D No ConlacUPeaceful AR S $ lMo beginning D DSA med D Not own/possess deadly weapons D Agency: SHELTER $ FINE STAYED D Deslroy/relum weapon Case No: -- DV S Commlued @ 5 Iday D May Pay Out D Slay away from I ATTY S ConsecJConc to U Submit Search lTesling D EducNoc TrngIEmpl D No alcohol] drugs or where sold Fine I Fees D Deemed Salisfied D Commuled D Collect Clvilly D Substance Abuse, Psych. Thefl. Anger Mgmt. DV. Parenting. Minors In qusession PIINVEST S D P/SUP $ {Mo D Waived U P0296 (DNA) D P01 202. 1 HIV Test] Education D CJAF $129.75I8259.50 $ U Addl‘l FEE waived VOP: D Wav D An"d D Admlts/Denles Viol U Court FInds VOP/ No VOP U SECA. ICMF. ICIN. CJAF. PINVEST. PSUP FEES NOT COND. 0F PROB Prob Rein l Mod l Term'd l Revoked! Remains Revoked I Ext lo I D Gen U Reslil 5‘ to D Original Terms 8. Conditions Except as Amended herein D Obey All Layvs D Restit Admin Fee NTE 15% of total D Resllt Admin Fee Waived D Co-lermlnous wlth D No Further Penaill'es I Reviews Dlhar: ' JAILIPRISON D See Attach! Pg D Dress oul for Trial DShower DHaIrcut . County Jall CTS = ACT + D PC4019 D V2 = - Tolal Total Term County Jail U Slraight Tlme D WWP PC1209 Fees U Walved U Court Rec All / Except D EMP/PSP/ERPIRCP/WWPIIN CAMPINP U No ERP D Sent Deemed Served D May doWWP through SAP D In County D Consec D Conc to D Bal CJ Susp D All bul Hrleays/Mos/Yrs U 0n Cond Complete Residential Trealment Prgm D Serve Consec MOfTU/WE/THIFRJSAISU D Pre-process AMIPM D Stay I Surrender to @ AMIPM or Sooner D REMANDED-BAIL$ D REMAIN AS SET E] NO BAIL D COMMITTED D RELEASED D 0R D SORP D JAC PHONE ASSM‘T D AS COND OF SORP U BAIL INCREASE I REDUCE D TO PRGM AS REC BY JAC-DOC TO ARRANGE TRANSPORT UPON AVAIL BED D STATUS Remains DISTRIBUTION: ORIGINAL - FILE, GREEN - DOC. BLUE - CJIC / DOH PURPLE - PROBATION. BROWN - DEFENDANT BLT) O3 -JIJUOL-L :2‘H‘J.Hui d} x_?HL-Cl -i-:’!‘ «38f (st rap A0 .330 (4'52. .3 AU“ 1V «fl, .Iflwlu I ' (XieTifUlfJ. ' “ magnolia. - , 96 I.Wfifizi' a"..’|..'xl 1:60 _. M DES YCA- afié‘bffilfl AC} B&QFQHE q 0353953 '(lr .A'l .l-“I “1!?-;Y...'. ‘ .34in 1m}: Jr.97an {H 11cm. I a ‘mo‘rxca‘rbpaoapmonsa9cm?) AT? ,‘-“\ 1M, ni ran Mgughlepmflgn?ggqurpefi wig?) jheppqdflqnao! yourRrobal n. as a vlolation of any of 'ferms may re er you liable to ma fdiféwing penalrle's‘Héwe er. iryou faithfully perform your duties during yaur pmbali ?ny eriad re enllflederl0 the privileges hereinafler sq! forthrSFaEe‘rm‘n 1203i; thé alrfm-fikaj’enfip V EC"; THE DEFENDANT: a-Jwgflfi bf), ii .533 ubafian}«Jim;1. Shall immedlalely upon hislher release from cu§ fiplacad on armal rapon in person lo the Probation Deparimenoréfififiillyai SE!- tar'CLaJa x, . furnish such Information regardrng hisfher sel as may Be requested. The defanJgfit shall whlle under Probalion ramain'm lha cuslody of {ha Probation Officar and shall report in person to the Probalion Olflc'er once each month or as otherwise dlrec1ed. Shall advise lhe Probation Officer of piece of residence al all limes-an’d, fyl‘gfi‘QJ/g. leave ur move from [he County or Slate of residence without prior 69f: k' 14 JM’ Probation Officer. Shall seek and obtain employment as approved by lhe Probation Offiqer. Shall. while on either court or forfnal probation. conduct his/her self ho'nestly; obey all flaws and rules. orders and reguiations of the Coun andlor Probation Officer L gen CONDITIONSffiRSUNijizagflggz. f ,M J2I Ea icle an am Lm IRBVFVdr I Isingr o or haII no gfuse'fizrsubmitter che calfes! orh s! q bloc? rea h or“fififfiggi rm 3. - Shall not driva-any vehicie without liability Insurance and shall provide proof of insurance If requested.to do so by a Peace Officer. Shall not comm'il any criminal offense and shall obey all laws4‘. PRIVILEGES. You hairs me tighl to have your "record cleared" whlch‘ means lhal under the following wndltlons you have 1hr.- flghl to withdraw your plea of gullly or noIo contenders or have a Verdict 0t finding of guilt set asfde and 10' then enter a plea of not guilty and have lhe Court dismiss the charge{s) against you and reieése you from any Iunher penalties and disabililies resulting from the within charge(s). 1. Al the conclusioi'l‘of your Probationary period (FonnaI or Court Probation) if you have othemise compIied wilh 'all' orders of Court and if lhere are no charges pending against you (PC1203.4). Altar one year has elapsed following the pronouncement ofjudgment if you have not been placed on Probation and ir you ham olhetwise led a good and ' layvlul life and there are nol charges pending agalnsk you [PC1203 4 (a)]. EXCEPT that sald_ of!ense(s) nn be charged against you as a prior conviction In lhe case ol’ any crimlnal prbceedlngs_which may b‘a.charged agalnst you at a later date.- and except lunher lh'al such (prior conviction) shall ba considered a convlcflon far lhe purpose OI revoking or suspending your privilege lo drive a motor vahicla where appropriate [PC1203 4 1203 4(a) and V013555] To apply for a record clearahce in all the above instances. you must contact the Santa Clara County Probation Office at (408) 435-2061. Any person conwcled of a felony: the accusatory pleading ol which has beer} dismissed pursuant to Secll'on 1203.4 oi lhe-Pena‘l Coda. may file a Peljliun {or Cedifiule of Rehabilitation and Pardon provided that he/shq has not been incarcerated stnce the dismissal of accusatory pleading. is not on Probation for the commission of any omer felony. a_nd presents satisfactory evidence of three years residence'In California prior to the filing of a Petition. PENALTIES: .A‘ any lime during your_ Probationary term any Probalion Officer may with or . without a warrant re-arresl you and bring you before lhe Court and if said Com determines that you have violaiad any of the terms of your Pmbailon. have engaged In any criminal practice; or have any criminal associations, it may revoke and terminale your Pmbalion. . and without any further hearing prono'imce judgment oi imprisonment and deliver you over to lhe proper officers lo serve your sentence. as ll Probation had never been granted. . y EMAT - Emergency Medical Ail: ' "1 ' l-fi- Hui)“ ACT_Huglgl u-J' ‘IJ. rnu H u I CJ--Co1.ln:y Jail ‘gfi- Criminal Justice Admm Fee M Courts Own MoUon - Comm- Commlssioner Conc- Concurrenl Con Dec- Conflict Deciared ' Consec- Consecutive ‘ COP - Change of Plea CPP - Crime Prevemlon Program 'Q Crlm - Crlmlnal ‘ Crl- Court CT - Coun Trial CTS - Credit for Time Served Decl ~ Declared . ' De! --Defendanl DL - Drivers Llcense DOC - Depanment of Corrections DPF - Drug Program Fae ‘ DRF'- Djyarsion Resmulion Fee ' DSA Defendants Statemenrof ' Assets‘ _ . , , DTACH Depanmen! of Tax and - Collecilons _ DV- Domestic \fiolence . DVPO - Domestic \fiolence Pm‘lecfive Order Educ - Edubalian ' ~ z Transportaflon '-EMP Electronic Monitoring Program EmpI- Employment ERC- Early Rcsolulion Calendar ERP- Early Release Program ~ Exp- Expires . . Ext Extended I FAR- Felony 'Advance Resolution FOP- Fivst Offender Program' ! FSF - F'ukuw Serious Felony Qen - General ' Hrg- Hearing . Hrs- Hours . HTO Habilual Traffic Offender ICIN- Conviction Assessment - - Infraction ICMF .- Qonviction Assessment . c MisdJFelony ‘IIDC- Identification ofCounseL IDU- Independent Defenders Office IrD- Igniljan Inlefiock .Dnvlce Immig -- Immigrulm Ins - Insurance .~JAC Jall Assessment Coordinator ‘l'DM Last Day for Mullahs ' L-DT - L'ast Day for Trlal _ MIINF- Misdemeanorllnfracllon MDA- Motion by District Attorney I Mgmt - Managemeni Misd- Misdemeanor Mod - Modification MOP - Multiple OITender Program Mos - Monlhs Mln - Malions NG - N01 Guilty NGBRI - No! Guilly By Reason of lnsanily ‘ NP - No Programs NTE ~ Not lo Exééed 0R - Own Recognizanw 1 0RD - Ordered I PA - Penally Assessment - ‘ ' PD‘- Public Defender PDP- Pretrial Diversion Program Pen- Penalty Fee ' 'l PO- Pr_o\ec1ive Order "i PINVEST- Presenlencelnvesligalion I . l. ‘Prgnl":‘ng' rain Frogram SORR- Slml- Slalemnn ng'- Training Vini- Violation Voo- leicma! Wav- Waived Y- Years -‘Rmv d- Removed. Rvkfi- Reunited SAP-$antencing AIlernallve I Subm - aunmmed Susp - Suspende‘d' Term'_d - Terminated TNW - Time Not-Waived J TW TlmeWalved ' TWIWD- Time Waiver Withdrawn I SCIT- Sheliff‘s Citation 'SECA- Coud Secu‘rlly Fee Sent - Sentenced Supervised Own Recognizance Program Stlp- Stlp'ulallon : ;-VOP Vlolaflon of Proballon WWP- Weekend Work Program AD- Nlemalaflefe "u’ ‘- ‘Fr'ubfj. Pféhhflqn Mdf-l Additional ?{gflaa:1! mg}:TH; P qcéed‘Ing AdmIAF Agimnltinn of Aft aes- I n.- "Fsflfi Phflb®ewicn Program Alivn e ‘f‘l r n .. J5 "F501? JPrfib‘almnSupervision ?%EFJAF aha} d E15}; o'u Leg”.N 2"; "323$": rpminanponrmnca APO- AdulI-fiEa‘ibfi'fifi 59:31; ”ElF%L'Pu ualnl ' Appthnpt'd- AppointmanUAppglntadm gar” 1-'Paymprfi“ finpb-gApplfiway} ‘r "i 4 CP- R tmn ndL‘nTacflnns - Mint} ls Baggivahle 1‘ .- ". ”,Prhgrpmulnim r gm . q .4 Re . 'flg} AI NfiJ'Q'JrEdJ. r $6.» h: (533'm-Rgfr 'R'ag?muuus . 'AQéYNAF rna wing» Re Islet ' ttuc‘hIPgFfifiamnlhago \JIM Ragnslated ‘ Bal- Balance RF- Resifiinion Fee 4 Bw Benchw rmnl RpI-Remrf‘f '-' Cal- Calendar Rptr-Reponer CAP- Communky Altemalive R&str‘d-Reslricted Program Resm- Rasiilufion .3 UHDI: NU. 5 ‘liIsAnLtMOF JUST”? GEN 0g .w174fi - l-EDD! - $028570 PEOPLE VS- SAN JOSE, CA 9511D commfiw DATE 05,11,202! 1:309“ ' DEPT a!3 CAL-K'A- nddy Cynthia Middle Mm 4: 3457 SUGARCREEK cr 60M“Inmb JUDGE SAN Jose CA, 95121 VJ ME «m - - .- ~ nr - v REPORTEWER HONW CLLC- mum 22398 AARON ADAM Hom DEF Am n IBM‘s 9935 (”“63Ad. V00 1w; PrA o' PALM, TIM . 5" 1‘36 Wlmmm Vdm 11I21m20CHARGES lado‘ ' a\ ‘u-‘w D a q “k, NEXT APPEARAmoj mmz‘a)m m?jfizm u 0W c ¥-D‘.----_ Tim Palm Counsel for Defendant Cynthia Liddy DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - NOTICE OF MOTION ' 2 ”\IQUI-hWN \D 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 Tim Palm 98445 Y. Attorney 819 Eddy Street San Francisco, Ca. 94109 (415) 771-6174 office - (415) 474-3748 fax Attorney for Defendant Cynthia Liddy IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA People of the State of California ) Case Number: C2017455 Plaintiff ) ‘ ) DEFENDANT'S MEMORANDUM OF vs. ) POINTS AND AUTHORITIES IN ) SUPPORT 0F MOTION FOR ) PRETRIAL DIVERSION PURSUANT Cynthia Liddy ) TO PC 1001.95 Defendant ) ). DATE: JUNE :11, 2021 ) TIME: 1:30 P.M. DEPT: 52 I. PRETRIAL DUI DIVERSION PURSUANT TO PENAL CODE SECTION 1001.95 IS PERMITTED BY STATUTE. Penal Code section 1001.95 authon'zes the court to grant diversion for a period up to 24 months with terms and conditions that the court deems appropriate. The court may exercise its discretion to grant diversion over objection of the People. The statute Specifically excludes certain listed crimes from diversion consideration. Driving under the influence is not excluded under PC 100.95. DEF'S MOTION FOR PRETRIAL DlVERSlON PC 1001.95 - MEMORANDUM OF POINTS AND AUTHORITIES 1 OOQONUI-b \O 10 .11 12' 13 14 15 16 17 18 19 20 21 22 23 24 25 .451 ,_. ‘k'x-rll' \\,4/ The Peoplé may argue that this new diversion statute does not apply to misdemeanor DUI offenses based on an older 1999 statute, Vehicle Code section 23640 that excluded diversion for DUI. However, the legislative history makes clear that the Assembly and the State Senate were aware of Vehicle Code section 23640 when the legislature subsequently passed AB3234 in 2020, the assembly bill that became the current Penal Code section 1001.95. Knowing of Vehicle Code section 23640, the legislature nonetheless chose not to exclude DUI prosecutions from diversion under Penal Code section 1001.95. Had the legislature intended to exclude DUI, it would have listed it among {he excluded offenses. Notably, the legislature did specifically exclude DUI from DA's diversion under Penal Code sections 1001.2 and 1001.51. The Legislature has in certain circumstances exempted DUIs from diversion programs and specifically chose not to do so in this case. Under the plain terms of the statute, DUIs, like all other non-excluded misdemeanors, are eligible for pretrial misdemeanor diversion. The argument that Vehicle Code section 23640 bars PC 1001.95 diversion in a DUI case is similar to the argument rejected by the court in Hopkins v. Superior Court, in the closely analogous context 0f veteran’s diversion.‘ Hopkins held that Penal Code section 1001.80 allowed veteran’s diversion for DUIs-even though the version of the statute then in force said nothing about DUIsz-because it was enacted later than Vehicle Code section 23640 and neither statutg was more “Specific” than the other: under long-established rules of statutory construction, and bearing in mind the rehabilitative goal of the veteran’s diversion, the later statute therefore controlled. Because the same reasoning applies here, it is useful -to examine how the Hopkins Court reached the conclusion it did. 1 Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, review granted Nov. 16, 2016, 383 P.3d 654, and dismissed as moot Oct. 18, 2017, 403 P.3d 571 DEF'S MOTION FOR PRETRIAL DIVERSION PC 100 L95 - MEMORANDUM OF POINTS AND AUTHORITIES 2 hwm ooflmm O 10 11. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 First, the court in Hopkins noted that the two statutes-the one that authorized diversion in veteran’s cases, and the one that forbade it in DUI cases-were in conflict with one another. Apparently inconsistent statutes should, wherever possible, be harmonized to remove the conflict. But that could not be done here, the court held, because one statute unambiguously allowed DUI diversion for veterans, and the other unambiguously forbade it.3 The People suggested a way to harmonize the two laws: since veteran’s diversion is discretionary, they argued, why not simply require that trial courts use their “discretion” to deny diversion in every case, citing Vehicle Code section 23640 as the key factor for the denial? The Court rejected this argument, since it would effectively “add an additional criterion not found in the express language, i.e., that the defendant cannot be charged with a misdemeanor DUI offense. [. . .] the requirement to ‘harmonize potentially inconsistent statutes when possible is not a license to redraft the statutes.’ [Citation.]”4 Secondly, the Court applied well-known rules of statutory construction to decide which of two conflicting statutes should control. While the primary rule is that a specific statute controls a general one, ‘the Hopkins Court held that neither statute was more specific than the other. Viewed one way, Vehicle Code section 23640 is more Specific, because it only covers defendants charged with DUIs; but viewed another way, the veteran’s diversion statute is more specific, because it only covers defendants who had served in the U.S. armed forces and were suffering from trauma, substance abuse or mental health conditions related to their military service. Because the general- versus-specific rule failed to resolve the conflict, the Court turned to the date of the statute’s 2 The statute was later amended to specifically allow DUls to be diverted, to resolve” a conflict with People v. VanVIeck (2016) 2 Cal.A_pp.5th 355, discussed below. 3 Ibid. 4 Ibid. DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 JMEMORANDUM OF POINTS AND AUTHORITIES 3 N \O 10- 11 12 l3 14 15 16 17 18 19' 20 21 22 23 24 25 .ooqamAw n n. _ \U \J enactments Penal Code section 1001.80 was enacted in 2015; Vehicle Code section 23640 was enacted in 1998. Accordingly, the Court held that the veteran’s diversion statute controlled, and that veteran’s diversion was available in DUI cases. 6 Finally, Hopkins drew support for its interpretation from the legislative history of‘thc I statute, which indicated that th_e Legislature’s goal was to a'void saddling veterans “entangled in the criminal justice system” with the adverse consequences of a criminal conviction: this goal would be furthered by allowing DUI diversion for veterans, and frustrated by barring it.7 The Court’s holding in Hopkins is dispositive here: long-established rules of statutory construction and the rehabilitative goal of diversion both require that it be applied in DUI cases. Just like the 2016 version of the veteran’s diversion statute, the 2020 PC 1001.95 diversion statute allows diversion ,for all misdemeanors that are not specifically excluded by PC 1001.95. The statute does not exclude DUIs. Under Hopkins, therefore, it is not a “more general” statute than I Vehicle Code 23640, even though it applies to a broader class of crimes. Since it is not a more general statute, and since it was enacted later in time, its provisions control over Vehicle Code section 23 640. The Court of Appeal in People v. VanWecks reached a different‘conclusion. VanVleck held that veteran’s diversion was unavailable in DUI cases because, in People v. Weatherill, courts Ehad previously found another diversionary program inapplicable to DUIs:9 The Legislature was 5 Id, p. 1284. 6 Ibid. 7 Id. at p. 1286-87. 8 VanVleck, supra, 2 Cal.App.5th 355. 9 People v. Weather”! (1989) 215 Cal.App.3d 1569. DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - MEMORANDUM OF POINTS AND AUTHORITIES 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DOONQLh-b presumed to know this case law, the court reaso‘ned, and if it wanted a different result in veteran’s diversion, it should have said so.” The Hopkins Court explained the three major flaws in this reasoning.” First, the Legislature, in enacting new diversion programs, has sometimes specifically exempted DUI charges (see e.g. Pen. Code §§ 1001.2; 1001.51), but failed to do so for veteran’s diversion-~a difference in treatment which strongly implied that it did not mean to exempt DUIs in that case. The same is true here: PC 1001.95 diversion, by its terms, includes all misdemeanors that are not specifically excluded and does not exempt DUIs, as other diversion statutes do. Second, the VanVleck Court ignored established authority that, where the Legislature enacts a statute which conflicts with a previous statute, the presumption that it is aware of existing case law is “not conclusive, and not even helpfi11.”l2 In fact, as Hopkins points out, the VanVleck Court’s approach was unprecedented: not a single case has ever applied this presumption in interpreting a statute that conflicts with existing law.” And even if the presumption could properly be applied, VanVleck was wrong to make it the deciding factor. ‘That is because “[t_]he presumption of legislative acquiescence in prior judicial decisions is not conclusive in determining legislativel intent. [. . .] Legislative silence afier a coun has coustrued a statute gives rise at most to an arguable inference of acquiescence 0r passive approval [. . .] But something more than mere silence is required before that acquiescence is elevated into a species of implied legislation [. . .j In the area of statutory construction, an examination of what the Legislature has done (as opposed to 1° VanV/eck, supra, 2 Cal.App.5th at 366. 11 Hopkins, supra, 2 Cal.App.5th at 1283-1286. :glgogkin]; p. 1285 [citing McLaughin v. State Bd. ofEducation (1999) 75 Caf.App.4th , 13 . 13 Ibid. DEF'S MOTION FOR PRETRIAL DIVERSION PC [001.95 - MEMORANDUM OF POINTS AND AUTHORITIES 5 M 10 11’ 12 13 14 15 l6 17 18 19 20 21 22 23- 24 25 \OOOVONUI-PUJ U u ' what it has left undone) is generally the more fruitful inquiry?” And what the Legislature did with PC 100] .95 - just as it did for veterans - was t0 enact a diversion statute that provides relief for all misdemeanor charges not specifically excluded. There is n0 “DUI exception” to PC 1001 .95 diversion. This Court should reject any invitation to “add‘ an additional criterion not found in the express language, i.e., that the defendant cannot be charged with a misdemeanor DUI offense,” just as the Courtof Appeal did in Hopkins.” Both the rules of statutory construction and the statute’s legislative history support DUIs’ inclusion in the current diversion scheme. II. MS. LIDDY IS WELL SUITED FOR PRETRIAL DIVERSION. HER NURSING CAREER COULD BE IN GRAVE JEOPARDY WITH A DUI CONVICTION. Cynthia Liddy, age 35, has no prior criminal history. This is a non-aggravated DUI prosecution. She was pulled over for weaving and speeding. There was no accident". I-Ier PAS test results were .079/.108/.099 and her evidentiary breath test results were .08/.08. She just received her Associates Degree in Nursing September 2020 from De Anza College. She passed the nursing exam in December 2020. Her application for a license with the California Board of Registered Nursing (BRN) is pending. A DUI conviction could radically impinge upon a grant of that license and could have lasting career implications. Successful completion of diversion could save her license and help her embark on a career certainly needed in the extraordinary health crisis currently facing our community. 14 Ibid. [citing People v. Morante (1999) 20 Cal.4th 403, 429]. DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - MEMORANDUM OF POINTS AND AUTHORITIES 6 N \lomhw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2s A, bu.J L) Ms. Liddy has retained Attorney Adam Richards who specializes in BRN licensing. His Declaration is attached. Having represented hundreds of applicants before the BRN, Attorney Richards is well experienced in how tough the BRN can be on DUIs, especially with new applicants such as Ms. Liddy. The BRN will not act on her nursing application until this criminal prosecution is resolved. In short, if Ms. ”Liddy suffers a DUI conviction, the BRN may deny her _applicati0n outright or impose very reétrictive conditions that could negatively affect her employment for years to come or even possibly prevent her from getting a job as a nurse in the first place. Diversion could avert such consequences for this new graduate. Ms. Liddy has taken steps to make sure this offense never happens again. She has voluntarily attended AA meetings weekly since January 8, 2021, averaging three meetings per week. She has kept a log 0f her meetings thatwill be available for inspection by the court at the hearing 0n this motion. She works as a veterinary assistant at an animal hospital in Palo Alto. She is also enrolled at Cal State East Bay - Hayward to get her bachelor's degree in nursing. She has just completed her exams for the first year of that program. She expects to complete the degree in Spring 2022. She is required to present a nursing license firom BRN to Cal State in order to remain in the program. The license is on hold pending this prosecution. If the license is not issued, Ms. Liddy will have t0 withdraw fi‘om the nursing bachelor program at Cal State. Ms. Lidd'y is a prime example of the very candidates the legislature had in mind for a second chance through diversion afforded by PC 1001 .95. She is willing to comply with all terms imposed by the court should she be given an opportunity to participate in a diversion program. 15 Hopkins, supra, 2 Cal.App.5th at 1282. DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - MEMORANDUM OF POINTS AND AUTHORITIES 7 WOONOxU'I#U-)Ni-' NNNNNwa-Ip‘ . mgmweowmqafiEGEZS g,» , u Because she is both eligible and an exemplaJy candidate, it is respectfully requested that the coufi grant diversion. CONCLUSION Based upon the forgoing, it is respectfully submitted that the court should exercise its ' discretion under Penal Code section 1001 .95 and grant pretrial diversion for Ms. Liddy. DATED: May 12, 2021 ' Respectfully submitted, Tim fialm Counsel for Defendant Cynthia Liddy DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - MEMORANDUM OF POINTS AND AUTHORITIES 8 10 ll 13 l4 15 16 17 18 19 20 21 22 23 24 25 ""N "n \_/ ADAM J. RICHARDS, State Bar No. 249872 LAW OFFICE OF ADAM J. RICHARDS 2530 J Street, Suite 320 Sacramento, California 958 16 Telephone: (916) 399-3486 Facsimile: (916)823- 3307 adam@ajrlaw.net AttOmeys for Defendant Cynthia Liddy SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA PEOPLE OF THE STATE OF ) Case No.: C2017455 CALIFORNIA, ) ) DECLARATION OF COUNSEL: THE Plaintiff ) EFFECT OF A CRIMINAL ’ ) CONVICTION 0N DEFENDANT’S V ) PENDING APPLICATION FOR ' ) LICENSURE TO THE BOARD OF CYNTHIA LIDDY 3 REGISTERED NURSING Defendant. g ) } I, Adam J. Richards, declare: 1. I am a duly licensed attorney authorized to practice law in the State of California. 2. I represent Cynthia Liddy in connection with a pending investigation by the Board of Registered Nursing (the “Board”) as a result of her arrest on suspicion ofviolating Vehicle-Code sections 23152(a) and (b). 3. Ms. Liddy is a candidate for licensure as a registered nurse with an application pending before the California Board of Registered Nursing (“B oard”). She has met all requirements to qualify her for licensurc including the completion of é lengthy and 12 I3 l4 ,16 l7 18 19 20 21 22 23 24 25 v ~a‘ 3:... \V ‘\_/ rigorous curriculum in an accredited nursing school as well as passing the final licensing examination. I Based on my experience in representing hundreds of nurses and applicants, the Board will not consider any further licensing steps until her criminal case is concluded. Moreover, the Board may seek to impose discipline up to and including the outright denial ofher application depending on the disposition of her pending criminal matter. The Nursing Practice Act authorizes the Board to conduct an investigation and impose disciplinary action if they believe that an applicant is unfit to practice nursing or has committed an act of unprofessional conduct. The statutes and regulations governing the Board and applications authorize the Board to suspend, deny, or place on probation any applicant who is found to-be subj ect to discipline. When considering whether to impose discipline and to what degree, the Board will apply its established ‘Factors t0 Be Considered’ which include the nature and severity of the crimes under consideration, the harm to the public, and the number and variety of the violations under review. The Board will also make a determination 0fwhether the crime is substantially related to the qualifications, fimctions, or duties of a registered nurse. (16 CCR §1444) Based on my experience representing licensees and applicants before the Board, the Board takes a rather hard line on alcohoI-related criminal convictions. Business and Professions Code section 2761 states that the board may take disciplinary action against a certified or licensed nurse or deny an application for a certificate or license for any unprofessional conduct, which includes the conviction of any offense substantially related to the qualifications, functions, and duties o'f a registered nurse (Bus. & Prof. Code § 2761; see also Bus. & Prof. Code § 480). Section 2762, subdivisions ‘(b)’ and ‘(c)’ explicitly provide fo'r discipline in cases where the nurse is convicted of an alcohol-related criminal offénse or uses al'coh'ol‘i‘ri a way that is 2 12 13 14 15 17 18 l9 20 21 22 23 24 25 x/I 'k/l dangerous to self or others. (Bus. & Prof. Code § 2762.) The Board’s Disciplinary Guidelines, which prescribe the recommended actions for various acts of unprofessional conduct, recommends revocation or a minimum of a stayed revocation with probation in the case of first-time offenses for alcohol-related criminal convictions. This measure is incorporated with similar language for applicants militating toward the denial of a license in the Board’s Policy Statement on Denial of Licensure. The Board’s Recommended Disciplinary Guidelines provide in relevant part: Use 0f any narcotic, dangerous drug, or alcohol to the extent that it is dangerous to self or others, or the ability to practice nursing safely is impaired. - Recommended discipline: Revocation In cases of first time offense with documented evidence of an on-going rehabilitation program: .- Minimum discipline: Revocation stayed with 3 years probation. ° Minimum conditions of probation: 1-19 Based on my experience in representing nursing applicants in substantially similar cases, it is my opinion that the Board will deny Ms. Liddy’s application to become a licensed registered nurse or, in the alternative, impose crippling probationary terms if she is convicted of Vehicle Code section 23 152. The onerous probation terms, if she is issued a license, would be even more acute given that Ms. Liddy would be a new nurse thereby substantially limiting, if not altogether foreclosing, any viable employment opportunities given the possible restrictions and conditions which would be placed on her license. ll 12 l3 20 21 22 23 24 25 {-1 f" t (v) V 10. Dismissal of charges after a successful completion of a diversion program would greatly improve Ms. Liddy’s chances of having her application for. a license granted. First, there will be no ‘Causes for Discipline’ by the Board for a conviction substantially related to the 'fimctions, duties, and responsibilities of a nurse nor a conviction involving the potentially dangerous use of alcohol. Additionally, in my experience with the Board, they are unlikely to initiate disciplinary proceedings for conduct which is not directly related to work and for which no criminal conviction was sustained. In other words, if the alleged misconduct occurred outside ofthe professional environment and the applicant or licensee did not suffer a criminal conviction, the Board typically does not conduct further investigation or seek disciplinary action. 11. Notwithstanding paragraph ‘10’, irrespective of.whether Ms. Liddy is convicted of a criminal offense in this case, the Board retains the ability to review and seek discipline for the conduct that led to the arrest and impose whatever action it deems appropriate should they choose to do so. 12. Ist. Lidd'y’s application f0r an RN license is denied, she will be unable t0 work as a nurse. She would be required to wait at least one year before reapplying if her application is denied. Such an action by the Board will also impact and likely foreclose Ms. Liddy from obtaining licensure in other states. I declare under penalty ofperjury that the foregoing is true and correct, except as to matters stated upon information and belief, and as to-those matters, I believe them to be true. Executed this 11th day ofMay 2021, at Sacramento, California. '7 Adam J. Richard§ ' _ fix 10. 11 12 13 14 15 16 17 18 19 20 21 22 23 25 5‘Nu ' :33 - Tim Palm 98445 Attorney 8 1 9 Eddy Street ' San Francisco, Ca. 94 1 09 (415) 771-6174 office (415) 474-3748 fax Attorney for Defendant Cynthia Liddy IN THE SUPERIOR COURT 0F THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA People of the State of California ) Case Number: C2017455 Plaintiff ) ) DECLARATION OF‘ATTORNEY PALM vs. ) IN SUPPORT 0F DEFENDANT'S ) MOTION FOR PRETRIAL DIVERSION ) PURSUANT TO PC 1001.95 Cynthia Liddy ) Defendant ) ) DATE: June 21, 2011 ) TIME: 1:30 p.m. ) DEPT: 52 ‘ I, Tim Palm, declare: I am the ;att'6fney 0f record for defendant Cynthia Liddy. I have reviewed the discovery provided to me by the District Attorney, including the police report. Relevant portious of that report are summarized in the Memorandum of Points and Authorities. I have also discussed with Ms. Liddy her current occupation, her recent graduation with an ' associate’s degree in nursing, her current enrollment in a bachelor's program in nursing, as well as her recent application for a nursing license with the California Board of Registered Nursing. Her DEF'S MOTION FOR PRETRIAL DIVERSION PC I00].95 - DECLARATION OF ATTORNEY PALM 1D 11 12 13 14 15 '16 1'7 18 ‘19 20 2'1 22 23 .24 25 " pursuits are summarized in the Memorandum of Points and Authorities. Statements regarding her pursuits are based upon infomation and belief and as to those matters I believe them to be true. Based upon my review the discovery and the Declaration 0f the defendant's attorney assisting her before the Board of Registered Nursing, Ms. 'Liddy qualifies for diversion pursuant to I Penal Code section 100 1 .95 and would be an excellent candidate. I declare, under penalty of perjury, that the foregoing is true and correct, except as t0 those matters stated on information and belief and as to those matters, I believe them to be tme. Executed this 12th day ofMay 2021 in San Jose, California. Tim Palm Counsel for Defendant Cynthia Liddy DE-F'S MOTION FOR PRE'I'RIAL DIVERSION PC 1001.95 - DECLARATION OF ATTORNEY PALM 1a 10 11 12 13 14 15 16 17 1'8 19 20 21 22 23 24 25 \\_a/ PROOF 0F SERVICE BY HAND DELIv 'Y MAY 1 2 202+ I, Tim Palm, declare: Superlgégurrk Of thug Ctounfig cm BY - EPU I am employed in San Francisco, California. I am oVer. the age of eighteen years and not a party to the within cause. My business address is 819 Eddy Street, San Francisco, California, 94109. On this date I served the NOTICE OF MOTION AND MOTION FOR PRETRIAL DIVERSION PURSUANT TO PC 1001 .95 with the Memorandum of Points and Authorities, and Declarations of Attorney Palm and Attorney Richards on the interested parties in said cause, by personally delivering said documents to: PA‘s grace .' WHSM Ca s4»: ' lo :J 05; for the Office of the District Attorney for Santa Clara County I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was executed on May 12, 2021 at San Jose, California. flflh Tim Palm DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - PROOF OF SERVICE 1 EXHIBIT D 42 OOQONU‘IA \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 June 7, 2021 Clerk ofthe C urt Superior Court of( County of San C JEFFREY ROSEN, SBN 163589 0201 7455 District Attorney of Santa Clara County By: psoto KATHERINE CAREY, SBN 3247774 Deputy District Attorney Office 0f the District Attorney 70 West Hedding, West Wing San Jose, California 951 10 Telephone: (408) 792-2039 Attorneysfor the People ofthe State ofCalifomz'a SUPERIOR COURT OF THE STATE OF CALIFORNIA SANTA CLARA COUNTY JUDICIAL DISTRICT PEOPLE OF THE STATE OF CALIFORNIA, ) case NO-i C2017455 Plaintiff, 3 ) PEOPLE’S OPPOSITION BRIEF TO VS' ) DEFENSE MOTION TO MISDEMEANOR CYNTHIA LIDDY ) DIVERSION PURSUANT TO PENAL ’ ) CODE§ 1001.95 Defendant. ) ) Date: June 11, 2021 ) Time: 1:30 PM ) Dept: 52 ) People’s Opposition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C201 7455)- Page 0 AWN QONU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. IV. TABLE OF CONTENTS Statement of the Case .................................................................................................... 1 Statement of Facts ......................................................................................................... 1 Statement ofLaw and Argument .................................................................................. 2 A. Impaired Driving Is A Serious Risk to Public Safety ............................................. 3 B. Vehicle Code Section 23640 Specifically Prohibits Diversion ofDUI Offenses. .. 4 i. Vehicle Code Section 23640’s Prohibition ofDUI Diversion Survives the Enactment ofAB 3234 ................................................................................ 5 ii. Statutory Canons of Construction Support the Conclusion That DUIs Are Categorically Ineligible for Diversion Under Penal Code 1001 .95 ............ 6 iii. Diversion ofDUI offenses Is Inappropriate Because It Would Subvert the DUI Statutory Framework of Escalating Consequences for Repeat Offenders ..................................................................................................... 9 iv. Diversion 0fDUI Offenses Is Inappropriate Because It Would Subvert the DUI Statutory Framework 0f Escalating Consequences for Repeat Offenders ............................................................................9 Conclusion .................................................................................................................. 1 1 People’s Opposition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C2017455)- Page 0 #WN QONU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 flgflflM Birchfield v. North Dakota (2016) 136 S.Ct. 2160 ....................................................................... 3 Burg v. Municipal Court (1983) 3S Cal.3d 257, 267 .................................................................... 3 Coastsz'de Fishing Club v. California Resources Agency (2008) 158 Ca1.App.4th 1183 ............. 7 Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275 ................................................................ 8 People v. Duncan (1990) 216 Cal.App.3d 1621 ........................................................................... 4 People v. Johnson (1994) 30 Cal.App.4th 286 ........................................................................... 10 Mitchell v. Wisconsin (2019) 139 S.Ct. 2525, 2535-36 ............................................................... 3 Moore v. Superior Court (2020) 272 Cal.Rptr.3d 571 ........................................................ 5, 6, 7 R.R. v. Superior Court (2009) 180 Cal.App.4th 185 .................................................................... 7 Tellez v. Superior Court (2020) 45 Ca1.App.5th 439 ................................................... ......... 5, 6, 7 People v. Wells (2006) 38 Cal.4th 1078 ....................................................................................... 4 People v. Weatherill (1989) 215 Cal.App.3d 1569 .............................................................. 4, 5, 7 STATUTES Cal. Penal Code§ 191.5 ......................................................................................................... 9, 10 Cal. Penal Code § 187 ..................................... . .......................................................................... 10 Cal. Penal Code § 243(e) .............................................................................................................. 2 Cal. Penal Code § 273.5 ............................................................................................................... 2 Cal. Penal Code § 646.9 ............................................................................................................... 2 Cal. Penal Code § 1000 ................................................................................................................ 4 Cal. Penal Code§ 1001.36 ...................................................................... -............................. 3, 5, 6 Cal. Penal Code § 1001.80 ...................................................... . ................................................. 6, 8 Ca]. Penal Code§ 1001.95(a) ............................................................................ 1, 2, 3, 5, 6, 9, 10 Cal. Pen. Code § 1001.97(a) ...................................................................................................... 10 Cal. Ve‘hi‘cl‘e’ C'od'e § 231‘52 ......................................................................................... 1, 3, 4, 8, 1‘0 ‘ TABLE OF AUTHORITIES Pconle’s Obnosition to Defense Motion for Misdemeanor Diversion (People v. Liddv. C201 7455]- Page 0 \OOOQQUIAWNh-l NNNNNNNNNv-lr-‘r-t mummhwwwoomugazas:8 Cal. Vehicle Code §232024, 5, 7, 8 Cal. Vehicle Code §§ 23540, 23542 ........................................................................................... 10 Cal. Vehicle Code §§ 23546, 23548 ........................................................................................... 10 Cal. Vehicle Code § 23550.5 ....................... ........ . ........................................................................ 10 Cal. Vehicle Code §§ 23536-23538 .............................................................................................. 9 Cal. Vehicle Code §§ 23550, 23552 ........................................................................................... 10 Cal. Vehicle Code §§ 23554, 23556 ........................................................................................... 10 Cal. Vehicle Code §§ 23560, 23562 ........................................................................................... 10 Cal. Vehicle Code § 23600 ........................................................................................................... 4 Cal. Vehicle Code § 23640 ................................................................................... 3, 4, 5, 6, 7, 8, 9 People’s Opposition to Defense Motion for Misdemeanor Diversion (People v. Liddv. C201 7455)- Page 1 \OOONONUIh 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. STATEMENT 0F THE CASE Cynthia Liddy (hereinafler “Defendant”) is charged with one count of Driving Under the Influence of Alcohol, in violation 0f Vehicle Code section 23 152(a), a misdemeanor and one count of Driving with a Blood and Alcohol Level of 0.08 or more, in violation of Vehicle Code section 23 1 52(b). Defendant has filed a motion to for pre-trial diversion pursuant to Penal Code section 1001.95 (Motion (“Mot”) at 1.) Because driving under the influence (“DUI”) poses a heightened danger to society, the legislative history of Penal Code 1001 .95 shows an intent to exclude DUI offenses from diversion. Therefore, the Court should decline the Defense’s invitation to subvert the framework of progressive DUI penalties enacted by the Legislature following decades of policy deliberations and debate. The motion for diversion should be denied. II. STATEMENT 0F FACTS] On November 2 1 , 2020, at approximately 10:45 P.M., California Highway Patrol Officer Adair was driving his marked patrol vehicle southbound on United States Route 101 north ofBrokaw Road with his partner, Officer Haroldsen, when he saw a red sedan traveling in the number two lane. The sedan was unable t0 maintain its lane and was swerving from the number two lane into the number one lane. It was also speeding; Officer Adair wrote that it was traveling 82 miles per hour. Officer Adair activated his forward red lights and, using the Public Announcement system, advised the driver-later identified as Defendant-to exit the freeway at Brokaw Road, which she did. Immediately upon contacting Defendant through the passenger window, Officer Adair could smell the odor 0f an alcoholic beverage emitting from the vehicle and observe that Defendant’s eyes were red and watery. Defendant provided her driver’s license and proof of registration and insurance upon request. When Officer Adair asked her to get out of her car, he observed she had a slow and unsteady gait. While he spoke with Defendant, he could smell the odor of alcohol emitting from her breath and person. Defendant denied drinking anything. 1 Facts taken from California Highway Patrol report KQ12895. People’s Opposition to Defense Motion for Misdemeanor Diversion (People v. Liddv. C2017455)- Page 1 #WN NON‘JI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Officer Adair instructed Defendant on a series 0f Field Sobriety Tests (FSTs) that Defendant performed poorly 0n. During the Horizontal Gaze Nystagmus test, Defendant displayed a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, onset 0f nystagmus prior to 45 degrees, and lack of convergence in both eyes. During the Walk and Tum, Defendant missed heel-to-toe contact on one step during each of the first and second set 0f nine steps, had her hands out in front of her body approximately ten inches for balance, and turned improperly. During the One Leg Stand, Defendant lost her balance at the count 0f fourteen and again at eighteen. After losing her count at eighteen, she started over at count one. She used her arms for balance during the test, raising them about six inches from her sides. During the Modified Romberg, Defendant swayed slightly in a circular motion, more than two inches in all directions. She also displayed eyelid tremors and concluded the test at twenty- eight seconds instead of thirty. Defendant agreed to take a Preliminary Alcohol Screening (“PAS”) test. Her results were .O79% blood alcohol content (“BAC”) at 11:09 P.M. (a weak breath sample with manual capture), a .108% BAC at 11:12 P.M. (an automatic capture), and a .099% at 11:15 P.M. (an automatic capture). Based 0n Defendant’s objective signs and symptoms of impairment, her unsafe driving, and her poor performance on FSTs, Defendant was placed under arrest. Officer Adair advised Defendant 0f implied consent under Vehicle Code section 23162. Defendant chose a breath test. Defendant was transported to the Alcohol Intoxication Bureau (“AFB”) where she provided two breath samples at 12:09 A.M. and 12: 14 A.M., approximately one and a half hours after the observed driving. The result 0f both tests was a .08% BAC. ‘III. STATEMENT OF LAW AND ARGUMENT Effective January 1, 2021, Assembly Bill 3234 (“AB 3234”) as codified in Penal Code section 1001 .95 gives trial court judges the discretion, over the People’s objection, t0 grant pretrial diversion in a misdemeanor case subject to limited exceptions} for a period not to 2 A defendant is ineligible for diversion under this section if charged with: (1) any offense requiring sex offender registration under Penal Code Section 290 upon conviction; (2) domestic violence resulting in injury'(Pen. Code; § 273:5); 1(3)-domestic batteryvaen'r.”Code;§K243(e));='and~(4‘)= stalking (Pen: Code,- §' - 646.9). (Pen. Code, § 1001.95(a).) violence resulting in injury (Pen. Code, § 273.5); (3) domestic battery (Pen. Code, § 243(6)); and (4) stalking (Pen. Code, § 646.9). (Pen. Code, § 1001.95(a).) People’s Opposition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C201 7455)- Page 2 OONONU‘I-h \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exceed twenty-four months and under terms the judge deems appropriate. (Pen. Code, § 1001.95, subds. (a)-(b).) 3 If the defendant complies with the imposed terms and conditions, at the end 0f the period of diversion, “the judge shall dismiss the action against the defendant.” (Pen. Code, § 1001.95, subd. (0).) However, the legislative history of Penal Code section 1001.95 as well as recent court guidance regarding Penal Code section 1001 .36’s potential conflict with Vehicle Code section 23640 show that DUIs are excluded from AB 3234, meaning DUI offenses are ineligible for diversion under Penal Code section 1001 .95. Even if the Court believes diversion of DUIs is permitted under Penal Code section 1001 .95(a), the Court should decline the Defense’s invitation to subvert the intricate statutory framework ofDUI deterrence enacted by the Legislature to address the serious risks to public safety posed by DUIS. The Court should deny Defendant’s motion for diversion and allow criminal prosecution to proceed. A. IMPAIRED DRIVING IS A SERIOUS RISK TO PUBLIC SAFETY. “Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year.” (Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 2166, 2178 [internal citations omitted; explaining “[o]ur cases have long recognized the ‘carnage’ and ‘slaughter’ caused by drunk drivers” and noting “annual fatalities in drunk-driving accidents rang[ing] from 13,582 deaths in 2005 to 9,865 deaths in 2011”]; see also Mitchell v. Wisconsin (2019) 139 S.Ct. 2525, 2535- 36 [internal citations omitted, emphasis in original; referring t0 the effects of drunk driving as “slaughter’ comparable to the ravages of war,”’ “’frightful camage,’” “’tragic,’” and “astounding,” and noting “behind this fervent language lies chilling figures, all captured in the fact that from 1982 to 2016, alcohol-related accidents took roughly 10,000 to 20,000 lives in this Nation every single year.”).] The California Supreme Court has recognized Vehicle Code section 23152(b) as a valid exercise of the Legislature’s “clear and legitimate purpose” to “regulate drinking drivers in a state that experienced 338,344 arrests for ‘drunk driving’ in 1982.” (Burg v. Municipal Court 3 Although the constitutionality of Section 1001 .95 is not addressed herein, the People explicitly do not concede this issue. People’s Obnosition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C2017455)- Page 3 OOQONU‘IAUJN KO 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 (1983) 35 Cal.3d 257, 267, 272 [noting scientific evidence that typically Vision impairment begins at 0.03-0.08 percent blood alcohol and reaction-time impairment begins at 0.04 percent]; see also People v. Wells (2006) 38 Ca1.4th 1078, 1086 [comparing a drunk driver to a “‘bomb,’ and a mobile one at that.”].) B. VEHICLE CODE SECTION 23640 SPECIFICALLY PROHIBITS DIVERSION OF DUI OFFENSES. In recognition 0f the devastating toll 0f DUIs t0 the victims of alcohol-related traffic accidents, the Vehicle Code has prohibited pretrial diversion 0fDUI cases since 1981. Vehicle Code section 23640 states: In any case in which a person is charged with a violation of Section 231 52 or 23 153, prior t0 acquittal 0r conviction, the coufi shall neither suspend nor stay the proceedings for the purpose 0f allowing the accused person to attend 0r participate, nor shall the court consider dismissal 0r entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs . . . . Cal. Veh. Code § 23640(a).4 Section 23640 has been the law in California for nearly 40 years. Its predecessor statute, former Vehicle Code section 23202, was enacted “in response to growing public concern about intoxicated drivers.” (People v. Duncan (1990) 216 Cal.App.3d 1621, 1628 [holding driving under the combined influence of alcohol and controlled substance charge was categorically ineligible for pretrial drug treatment diversion under Penal Code section 1000 given legislative intent “to make it more difficult for committing [DUIs] to avoid conviction and t0 increase the penalties consequent upon such a conviction”]). Vehicle Code sections 23202 and 23600 were enacted as part of a set of reforms t0 California’s driVing-under-the-influence laws under Assembly Bill 541. (People v. Weatherill (1989) 215 Cal.App.3d 1569, 1574 [noting “in the years 1976 t0 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, a/nd more were killed than in the bloodiest year of the 4 Vehicle Code section 23600 imposes similar postconviction restraints on sentencing in DUI cases. (See Duncan, 216 Ca1.App.3d at p. 1628.) It prohibits courts from staying or suspending pronouncement- of sentence inl'D'UIa cases and from' absoiving'DUI‘defendants voftheir “obligation of spending the minimum time in confinement, if any, or of paying the minimum fine imposed by law.” (Cal. Veh. Code § 23600(c).) People’s Onnosition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C2017455)- Page 4 OOQQU‘I-PUJN \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vietnam War.”]) Vehicle Code section 23202 was included specifically to bar the “diverse and voluminous diversion programs” that had proliferated in the state “under the auspices of the court, the district attorney and the defense counsel” t0 divert driving under the influence defendants. (Id. at p. 1576.) The “legislative intent, as revealed by the history ofAB 541, accords With the plain meaning 0f section 23202: all driving under the influence defendants, without exception, shall have their guilt 0r innocence determined Without delay or diversion.” (Weatherill, supra, 215 Cal.App.3d at p. 1573 [concluding, after factoring in “extrinsic aids including the ostensible objects t0 be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme 0f which the statute is a part,” that section 23202 precluded all diversion ofDUI offenses, including diversion for the developmentally disabled under Penal Code section 1001 .2 1].) i. Vehicle Code Section 23640’s Prohibition 0fDUI Diversion Survives the Enactment ofAB 3234. While Defendant argues the omission ofDUI’s on the excluded charges in Penal Code section 1001 .95 constitutes an inclusion for DUI’s in pre-trial diversion programs, the legislative history 0fAB 3234 itself “contains no references to misdemeanor DUI offenses or t0 Vehicle Code section 23640.” (Moore v. Superior Court (2020) 272 Cal.Rptr.3d 571, 584.) Even Tellez v. Superior Court (2020) 45 Cal.App.5th 439, Which is often cited by defendants for the court’s dicta that the Legislature’s failure to expressly exclude DUI offenses this time around is a good indicator that it intended DUI offenses t0 be eligible for the new misdemeanor program, expressly concluded that it did “not believe it is clear whether DUI offenses are eligible for the new misdemeanor diversion program, and we need not decide the issue.” (Tellez, 270 Cal.Rptr.3d at p. 424.) Further, if this Court applies the reasoning of Tellez, the opinion militates against such a conclusion. In Tellez, the defendant argued the trial court erred in finding DUIs were categorically ineligible for mental health diversion under Penal Code 1001 .36 and applied for a peremptory writ 0f mandate to the Court of Appeal. The defendant in Tellez argued that the People’s Opposition to Defense Motion for Misdemeanor Diversion (People v. Liddv. C20]7455)- Page 5 OONQUIAUJN \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mental health statute had excluded specified offenses such as murder and rape under subdivision (b)(2) of the statute but had not expressly excluded DUIs. Tellez contended that therefore, the trial court should have inferred that the Legislature intended to allow DUIs t0 be diverted under the mental health statute. The Fourth District rejected this argument, however. The Tellez court noted that the Legislature had just amended the military diversion statute in August 2017 t0 add the provision that “[n]otwithstanding any other law, including section 23640 of the Vehicle Code,” DUIs could be diverted under military diversion per Penal Code section 1001 .80. (Id. at p. 423.) Thus, the Legislature was “familiar with the conflict between Vehicle Code section 23640 and the diversion statutes and knew how to clarify that the diversion statute should control over the Vehicle Code, having recently confronted the issue with respect to military diversion.” (Ibid) Against this backdrop, the Fourth District held that the fact the Legislature declined t0 insert similar language in the mental health diversion statute in September 201 8 when it enacted the statute conclusively manifested the Legislature’s intent for Vehicle Code 23640 t0 prevail in the mental health diversion context. (Id. at pp. 422-23.) The Tellez court also rejected Defendant’s argument that a change t0 the Senate Bill for mental health diversion that struck a provision which would have expressly excluded DUI offenses was an indication of the Legislation’s intention t0 permit DUIs t0 be diverted under the mental health diversion scheme. (Id. at p. 423.) Critically, the Fourth District concluded that a court had n0 need to “read ineligibility of DUI offenses into Penal Code section 1001 .36 -Vehicle Code 23640 accomplishes that.” (Ibid; emphasis added.) ii. Statutory Canons of Construction Support the Conclusion that DU-Is Are Categoricallv Ineligible for Diversion Under Penal Code 1001 .95- Less than two months after it published the Tellez opinion, the Fourth District again took up the issue 0f whether DUIs were categorically ineligible for mental health diversion in the case ofMoore v. Superior Court. (Moore, supra, 272 Cal.Rptr.3d at p. 571.) It once again concluded that DUIs were statutorily ineligible for mental health diversion. The Fourth District People’s Opposition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C201 7455)- Page 6 AWN \IO\LII 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 explained that it was publishing another opinion on the subject to “illustrate that several canons of statutory construction buttress Tellez’s holding.” (1d. at p. 575.) The panel in Moore reiterated that courts are required t0 “assume that the Legislature, when enacting a statute, was aware of existing related laws and intended t0 maintain a consistent body of rules.” (Id. at p. 578 [instructing that “[a]bsent an express declaration 0f legislative intent, we will find an implied repeal [of one statute] ‘only when there is no rational basis for harmonizing the two potentially conflicting statutes . . . and the statutes are irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation”; internal citation omitted].) After applying the various canons of statutory interpretation, the Moore court concluded that the mental health diversion statute did not repeal Vehicle Code 23640 and that defendant’s exhortation t0 “[a]pp1y[ ] the canon that later enactments supersede earlier ones would contravene the Legislature’s intent in this case.” (Id. at p. 583.) Similarly, AB 3234 was introduced in February 2020-1635 than two and half years after the Legislature amended the military diversion statute specifically to explicitly clarify that DUIs were eligible for military diversion notwithstanding the provisions of Vehicle Code section 23640. If the Legislature intended to include DUIs in the new misdemeanor diversion scheme, it knew how to do 50.5 The fact that it chose not t0 makes clear its intention for this diversion statute t0 join the many others-all others, in fact, except military diversion-enacted by the Legislature that exclude DUI offenses. Moreover, “[W]hen a general statute conflicts with a specific statute, the specific statutes controls the general one.” (Weatherill, supra, 215 Cal.App.3d at pp. 1577-78 [holding Vehicle Code section 23202 barring DUI diversion controlled over the general statute Penal 5 To the extent that Defendant contends the Governor’s signing statement that he was “concerned that the crime 0f driving under the influence was not excluded from the misdemeanor diversion program,” and would “seek to expeditiously remedy this issue with the Legislature in the next legislative session,” is somehow indicative that DUIs are eligible under 1001 .95, courts have repeatedly found held that the governor’s signing statement is not binding authority and “may not even be a reliable indicator of legislative intent.” (See'Moore; supra;r2'7:2'-€alc=Rptr-.3d-at"5‘v8-5; n; 12 [citing’R'Rt vz' Superior Court (2009) 180 Ca1.App.4th 185, 201; Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1196, n.7].) Pconle’s Opposition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C2017455)- Page 7 OOflmLh-PDJN KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code section 1001 .21 because the subject matter of section 1001 .21 “comprehends hundreds of misdemeanors in scores of codes and is therefore a general statute” but section 23202 applies to “a single type 0f conduct,” driving under the influence, and “comprehends only two statutes, sections 23152 and 23153”].) Here, the new misdemeanor diversion statute also comprehends misdemeanors in scores 0f codes as compared to Vehicle Code section 23640, the modern reenactment of Vehicle Code section 23202. Statutory canons of construction similarly support the conclusion that Vehicle Code section 23640 controls over the new general misdemeanor diversion statute. This reasoning rebuts completely the only case Defendant relies on to support her contention DUIs should eligible under the new misdemeanor diversion law: Hopkins v. Superior Court (201 6) 2 Cal.App.5th 1275. On its face, that case is inapposite because it applies in the context 0f military diversion. The People have already noted that is the sole type 0f diversion that is inclusive of DUIs. Furthermore, the Hopkins court’s reasoning does not apply in this case. That court discussed how, in the context of military diversion, the rule of statutory interpretation requiring the narrow reading t0 take precedence over the general one was ineffectual. The court noted that military diversion was “a specific diversion program applicable only certain qualifying defendants who are or were members of the United States military.” (Hopkins, supra, 2 Ca1.App.5th at p. 1284.) The court was unable t0 apply this canon of statutory interpretation t0 the issue of military diversion versus DUIs because both were narrow: the population 0f people affected by military diversion (veterans) and the class 0f crimes deemed ineligible for diversion by Vehicle Code section 23640 (DUIs). As discussed in the paragraph above, however, that is the not the case here. Misdemeanor diversion is available to anyone charged With one 0f the hundreds and hundreds 0f qualifying misdemeanor offenses. There are n0 criteria-such as being an active 0r former member of the United States military- that narrows its applicability. Vehicle Code section 23640, although enacted earlier, still applies only to DUIs and is therefore much more narrow than Penal Code section 1001 .2]. Finally, in 2017-after Hopkins was decided in 201 6-the California Legislature went back ' and expressly added subsection (1) to Penal Code section 1001 .80. That subsection begins, People’s Onnosition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C20] 7455)- Page 8 OOONQUIh 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Notwithstanding any other law, including Section 23640 0f the Vehicle Code . . . ” thereby expressly including DUIs in military diversion. As the People argued above, the Legislature is clearly aware ofhow t0 make such explicit inclusions and the fact that it did not in Penal Code section 1001.21 means that it did not intend to make DUIs eligible for general misdemeanor diversion. iii. The Legislature, Through AB 282, Has Made Clear Its Intent t0 Exclude DUIs from Diversion Under AB 3234. Shortly after the enactment 0fAB 3234, the legislature introduced AB 282, to amend Section 1001.95 of the Penal Code to explicitly exclude DUI offenses from being eligible for diversion. The Public Safety Bill Analysis dated April 5, 2021, indicates that the purpose of the amendment is to clarify Whether a DUI offense is ineligible for court-initiated misdemeanor diversion under AB 3234. In its reasoning, the legislature explains that, to avoid conflicting court opinions regarding eligibility of DUIs for diversion as was previously seen in the context of military diversion, “[t]his bill would correct a similar ambiguity in the court initiated misdemeanor diversion statute enacted by AB 3234 - whether a misdemeanor DUI offense is eligible for court initiated diversion. Under this bill, a court would be prohibited from granting misdemeanor diversion on a DUI offense - i.e., DUIS would be ineligible for court initiated misdemeanor diversion.” iv. Diversion of DUI Offenses I-s Inappro ariate Because It Would Subvert the DUI Statutory Framework of Esca[ating Consequences for Repeat Offenders. Because 0f the excessive risk to public safety posed by drunk drivers, the Legislature has developed a statutory scheme with increasing statutory minimums designed to increase penalties for repeat offenders across the board. (See Veh. Code §§ 23536-23568; Pen. Code § 191.5(d).) The Vehicle Code and Penal Code provide that DUI-related convictions increase punishment for subsequent DUI convictions occurring within a certain period, including the Peonle’s Opnosition to Defense Motion for Misdemeanor Diversion (Peonle v. Liddv. C201 7455)- Page 9 A QQU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 charge of a felony-misdemeanor wobbler under Vehicle Code section 23550.5 after certain offenses. (See Veh. Code §§ 23540, 23546, 23550; Pen. Code § 191.5(d).)6 In the most serious cases, prior DUI convictions can be used as evidence 0f “implied malice” to support a charge of vehicular murder under Penal Code section 187, subdivision (a). (See, e.g., People v. Johnson (1994) 30 Cal.App.4th 286, 291 [“the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context 0f an offense for which the punishment for repeat offenders is more severe [ ], is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent Victims of drunk drivers.”].) A grant of pretrial diversion under Penal Code section 1001 .95 would result in the priorable charge’s dismissal and permit a repeat offender to escape the escalating consequences enacted by the Legislature specifically t0 combat this pernicious crime. Because the statute provides that “the arrest upon which diversion was imposed shall be deemed to have never occuITed,” (Pen. Code § 1001 .97(a)), the court in a future DUI is presumably barred from considering the prior diverted offense for purposes 0f discretionary sentencing. A defendant may even seek to capitalize on this language to press for a second or third bite at the diversion apple for additional DUI offenses. The Court should deny Defendant’s motion for Section 1001 .95 diversion in this case. A grant of diversion would effectively subvert the sentencing framework enacted over several decades t0 deter DUI crimes and does not serve the Legislature’s clear and legitimate purpose in combatting the pervasive danger created by impaired drivers in California. 6 A second offense under section 23 152(a) or (b) mandates a minimum 0f ten days in jail with a grant of probation. (Veh. Code §§ 23540, 23542). A third offense mandates a minimum of 120 days in jail or 30 days and a 30-month rehabilitation program with a grant ofprobation. (Veh. Code §§ 23546, 23548.) A fourth offense mandates a minimum of 180 days in jail, or 30 days and a 30-month rehabilitation program with a grant of probation. (Veh. Code §§ 23550, 23552.) A first offense of Vehicle Code section 23153, subdivision (a) or (b) mandates a minimum of 5 days in jail with a grant ofprobation. (Veh. Code, §§ 23554, 23556.) A second offense mandates a minimum of 120 days in jail or 30 days‘and'an' 18-month or '30-monthrehabilitafion’program'with a' grant‘of " probation. (Veh. Code, §§ 23560, 23562.) People’s ODDosition to Defense Motion for Misdemeanor Diversion (People v. Liddv. C2017455)- Page 10 \OOO\IO\KIIAWNv-a NNNNNNNNNI-‘b-H CONCLUSION For the reasons stated above, Defendant’s motion to dismiss should be denied. DATED: June 4, 2021 RESPECTFULLY SUBMITTED, JEFFREY F. ROSEN District AttorneyMkw Katherine Carey Deputy District Attorney People’s Onnosition to Defense Motion for Misdemeanor Diversion (People v. Liddv. C2017455)- Page 11 Aww QONU‘I 10 11 12 13 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 June 7, 2021 Clerk of the Court Superior Court of( Case: People v. Cynthia Liddy 223:3/4ggsanta C Docket No: C2017455 PROOF 0F SERVICE By: psoto Iam a citizen 0f the United States, employed in the County of Santa Clara, State 0f California. I am over the age of 18 years and not a party to the above-entitled action. My business address is: Office of the District Attorney, 70 W. Hedding St., San Jose California 951 10. On June 5, 2021 I served the following document(s) upon the interested parties herein by the meth0d(s) indicated below: PEOPLE’S OPPOSITION TO DEFENSE MOTION FOR MISDEMEANOR DIVERSION PURSUANT TO PENAL CODE §§ 1001.95 BY FIRST CLASS MAIL: by placing a true copy thereof, enclosed in a sealed envelope, for postage and deposit with the U.S. Postal Service 0n the same date it is submitted for mailing, and addressed as follows: BY PERSONAL DELIVERY: by causing a true copy thereof to be hand-carried t0 the recipient at the address indicated: X BY EMAIL TRANSMISSION: by emailing a true copy thereof to the recipient at the email address indicated: Tim Palm tpalm@sbcglobal.net BY COUNTY PONY MAIL: by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: BY HAND DELIVERY: by hand-delivering a true copy thereof t0 the following: I declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct, and that this declaration was executed on June 5, 2021 at San Jose, California. WKGM/ Katherine Carey Deputy District Attorney People’s Opposition to Defense Motion for Misdemeanor Diversion (People v. Liddv. C2017455)- Page 12 EXHIBIT E 43 N 10 1'1 12 13 14 15 16 17 18 19 29 21 22 23 24 25 KOOOQQUlgLQ Tim Palm 98445 Attorney 819 Eddy Street San Francisco, Ca. 94109 (415)771-6174 office - . » JUN 08 2021 (415)474-3748 fax, . _ - Cl m C ' tpa1m@SbCglObal-net EVBHpHflo 003W otoslélrfita Clara Attorney for Defendant EPUTY Cynthia Liddy IN THE SUPERIOR COURT 0F THE STATE OF CALIFORNIA IN AND FOR THE COUNTY 0F SANTA CLARA People of the State of California ) Case Number: C2017455 Plaintiff ) ) DEFENDANT'S REPLY RE MOTION vs. ) FOR PRETRIAL DIVERSION ) PURSUANT TO PC.1001.95 ) Cynthia Liddy ) DATE: JUNE 11, 2021 Defendant ) TIME: 1:30 P.M. ) DEPT: 52 ) The defense makes no quarrel with the People's claim that impaired drivers are capable of causing great hann. That is not the point of this Motion. The legislature has determined, by enacting Penal Code section 1001.95, that the court has discretion t0 treat one accused of DUI under a diversion program. Counseling, education and punishment can still be imposed by the court under a' diversion progratfi to abate the potential to re-offend. Nothing in Penal Code section 1001 .95 says a suspect walks flee. The provision merely gives the coun the discretion to allow an accused to accomplish the same remedial and educational goals as a conviction while permitting the accused an opportunity to salvage her life ahd career without the stigma of a conviction. DEF'S MOTION FOK PRETRIAL DIVERSION PC 100] .95 - DEFENDANT'S REPLY 1 \OOOQQ‘JIhUJNu-n MNNMNNH mAmeoo;33$§$5:S Indeed, the legislature was well aware of Vehicle Code section 23640 years before it enacted Penal Code section 1001 .95. Had the legislature felt that it was necessary to exclude DUI's fiom Penal Code section 1001.95 in light of Vehicle Code section 23640, the legislature would have listed DUI as an excluded offense along with the other offenses explicitly excluded: any sex offense requiring registration under Penal Code section 290, as well as any violation of Penal Code sections 273.5 and 243(e) (domestic violence), and 646.9 (stalking). The legislature chose not to add DUI's to the list of exclusions. Although there are reported decisions regarding the conflict between Vehicle Code section 23640 and DUI diversion, the decisions are split and apply only to facts under very different and specific diversion statutes. No decision has yet been reported that holds DUI's are ineligible under L the new Penal Code section 1001 .95. In Hopkins v. Superior Court (2016) 2 Ca1.App.5th 1275, the; Second District, deciding a case out ofLos Angeles, held that Vehicle Code section 23640 does not preclude military diversion under Penal Code section 1001.80. The Fourth District courts in Moore v. Superior Court (2020) 58 Cal.App.5th 561 and Tellez v. Superior Court (2020) 56 Ca1.App.5th 439, (deciding cases out of Riverside County) held that Vehicle Code sectionv23640 precludes DUI from mental health diversion under Penal Code section 100.95. However, both Moore and Tellez were clear to state that the decision did not concern -the new diVersion scheme under Penal Code section 1001.95, as that issue was not before the court. Dicta in Tellez speculates that perhaps the legislature intended to include DUI in the new 100 1 .95 diversion. In short, there is a split of authority on the application of Vehicle Code section 23640 to military and mental health diversion. In it's Opposition, the People have merely recited the reasoning of the decisions the prosecution prefers. The People's reference to the proposed AB 282 is but a Wing and a prayer that it passes. But it is not the law today. It may never. become law. In the end, there is no authority for the proposition that the legislature meant to exclude DUI's from Penal Code 100 1 .95 diversion as it did with sex offenses, domestic violence and stalking. DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - DEFENDANT'S REPLY 2 h; m¥wN~o~oooSSGE$ESZS \OWQGMAUJN r J ~l KT . \VJ' It is respectfully submitted that this court not aCceiat the People's invitation to re-write Penal Code section 1001.95. As the law stands today, the court ha's discretion to divert Ms. :Liddy. The court has discretiori to fashion a diversion program that will rehabilitate her,‘ educate her, punish ' her and yet allow her an opportunity to salvage her career and contribute to society as a much- needed nurse. CONCLUSION Based upon the fOrgoing, it is respectfully submitted that the court should exercise its ‘ discretion under Penal Code section 1001.95 and gfant pretrial diversion for Ms. Liddy. DATED: June .8, 2021 . Respectfully submitted,flm); Tim Palm Counsel for Defendant Cynthia Liddy DEF‘S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - DEFENDANT'S REPLY 3 Kooofloxmpwm,‘ NNNNNNH - mhmeomaza-Gimsza \VJI: ‘ IL“) PROOF 0F SERVICE BYEMAIL I, Tim Palm, declare: I am employed in San Francisco, California. I am over t'he age of eighteen years and not a pany .to the within cause. My business address is Eight Nineteen Eddy Street, San Francisco, Califomia, 94109. On this dateI served: DEFENDANT'S REPLY RE MOTION FOR PRETRIAL DIVERSIQN PURSUANT T0 PC 1001.95 on the interested parties in said cause, by email transmission of a true copy to: kcarey@dao.sccgov.org Katherine Carey Deputy District Attorney Santa Clara County I declare, under penalty of peljury, that the foregoing is true and conect. Executed on June 8, 2021, at Smmyvale, Califoniia. DEF'S MOTION FOR PRETRIAL DIVERSION PC 1001.95 - DEFENDANTS REPLY 4 EXHIBIT F 44 mQONU'Ip-bWNH lO ll 12 l3 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA BEFORE THE HONORABLE BENJAMIN WILLIAMS, COMMISSIONER DEPARTMENT NO. 34 --OOO-- THE PEOPLE 0F THE STATE 0F CALIFORNIA, Plaintiff, CYNTHIA MICHELLE LIDDY, ) J J i vs. ) Case No. C2017455 ) } } Defendant. } J --oOo-- REPORTER'S TRANSCRIPT OF DIVERSION MOTION PROCEEDINGS JUNE ll, 2021 --oOo-- mgmU'ln-waH lO ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 A P P E A R A N C E S: FOR THE PEOPLE: FOR THE DEFENDANT: COURT REPORTER: JOSHUA YOO CERTIFIED LAW CLERK ALALEH KIANERCI DEPUTY DISTRICT ATTORNEY TIM PALM ATTORNEY AT LAW MONICA A. COMER, CSR CERTIFICATE NO. 11017 --oOo-- m w N H |_l I-‘Okomde‘l H l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 SAN JOSE, are ready Certified CALIFORNIA JUNE ll, 2021 PROCEEDINGS THE COURT: Any matters that have a match that to proceed? MR. YOO: Yes, Your Honor. Joshua Yoo, Law Clerk, under the supervision of Deputy District Attorney, Alaleh Kianerci. THE COURT: Okay. And this is in a matter out of Department 52? Palm, P-A- custody. MR. YOO: Yes, Your Honor. THE COURT: And what is the case name? MR. YOO: This is the Liddy case. THE COURT: Cynthia Michelle Liddy. And for the defense? MR. PALM: Good afternoon, Your Honor. Tim L-M, and my client is present and out of May she join me at the table? THE COURT: She may indeed. MR. PALM: Thank you. THE COURT: There's a stipulation to commissioner; is that correct? diversion MR. PALM: Yes, sir. THE COURT: It appears that there is a motion filed on behalf of Ms. Liddy. And good afternoon, Ms. Liddy. THE DEFENDANT: Good afternoon. THE COURT: This is your motion; is it not, A w N H 10 ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Counsel? MR. PALM: That's correct. THE COURT: And so, Mr. Palm, you may begin however you see fit. MR. PALM: I don't know if because of the transfer if the Court had an opportunity to look at the points and authority in opposition. THE COURT: I am looking at it now because I wasn‘t exactly sure what we were going to get. So I want to hear arguments, and then I can review all the relevant documentation. I am aware of the general arguments being made within this county and outlying counties about whether diversion is allowable on a DUI case, and what the basis for that might be and whether or not any particular individual might be a good candidate for such diversion. MR. PALM: All right. I will try not to cover ground the Court is already familiar with. Now, I think the main issue before us today, as framed by my moving papers and the People's, is whether or not Vehicle Code Section 23640 enacted in 1990 precludes DUI for the new misdemeanor diversion that went into effect this year under Penal Code Section 1001.95. And the conflict's been around before. When the legislature allowed DA's diverse under Penal Code Section 1001.2 and 1001.5(1), a lot historically, a lot of DUI cases took advantage of that DA diversion. Then the legislature, through lobbying .bLAJN ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 efforts, MADD, and other strong lobby groups, passed in 1990 Vehicle Code 23640 to preclude DUI diversion from the general DA‘s diversion that was going on at the time. Then the legislature eventually came up with a couple -- and under 23640 they said, no DUI diversion for DA's diversion specifically under Penal Code 1001.2 and 1001.5(1). Then eventually the legislator passed military veterans diversion. THE COURT: Which was I think, what, in 2017, '18, somewhere in that range? MR. PALM: It would have been before 2016, because that's when the Court started weighing in on it. There were two brands of new diversion specifically designed outside the scope of DA's diversion. And the one was the veterans diversion under Penal Code Section 1001.80, and the other was mental health diversion under 1001.36. The legislature carved out for veterans under certain circumstances, post-traumatic stress syndrome, and other conditions. They could be diverted and they also for people having specific mental health issues, they can be diverted under their own special diversion programs that were not under the umbrella of the general DA diversion. So then the prosecution objected to -- as the prosecution has historically objected to DUIS being permitted in veterans diversion and being permitted in ~5me Ommflmtfl 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 mental health diversion under the auspices that Vehicle Code Section 23640 said no diversion for DUIs. But we have to keep in mind, 23640 was enacted to answer the flood gate of DUIs going under general DA's diversion. So now the courts were stuck with, okay, we have one statute that says you can do mental health diversion. We have a Vehicle Code Section, not a Penal Code Section, a Vehicle Code Section that says no diversion for DUIs. So what do we do? The Court's have split. The case that I cited and the defense sites is Hopkins vs. Superior Court mentioned in my papers and in the People's papers at 2 Cal.App.5th 1275 a 2016 case. And before Hopkins there were a handful of cases, one of the primary cases was Vanvleck, V-A-N-V-L-E-C-K. People vs. Vanvleck, a 2016 case at 2 Cal.App.5th 355 cited in both briefs. And Vanvleck wrestled with the conflict between Vehicle Code Section 23640 and vets diversion, military vet diversion under 1001.80. And Vanvleck found there was a conflict and through statutory construction gymnastics that appealed to the Vanvleck court, they found that Vehicle Code Section 23640 precluded DUI diversion even under the new veterans diversion program. Several courts disagreed with that reasoning and with that decision, one of which was Hopkins that also looked at DUI diversion for veterans under the veterans diversion PClOOl.80, and disagreed with ubwk) \IO\U'| Vanvleck. And Hopkins said we think Vanvleck is wrong. We think the statutory construction gymnastics that the Vanvleck court used were improper; in fact, the Hopkins court said that's the first time we heard any court saying the Vanvleck reasoning. And no other court has done the statutory construction the way the Vanvleck court did. So Hopkins said we don't agree, we think that the veterans diversion that was enacted years after the 23640 preclusion of diversion for general DA's diversion, we think the subsequently enacted veterans diversion takes precedence. The legislature knew about Vehicle Code 23640. They knew that diversion was precluded from DA's diversion, and yet they have legislated veterans diversion, and they haven't excluded veterans diversion, so a veteran with a DUI could be diverted. Subsequently, the legislature reacted to Vanvleck and amended the veterans diversion statute to specifically say, no, we meant for DUI veterans to be diverted. We know 23640 exists. We wrote that for general DA diversion. Now we have a new diversion, and we never intended to exclude veterans from that. So that particular veterans statute was amended to counter what the Court did in Vanvleck, which was write legislation that wasn't in the statute. In the 'ZOs -- in 2020, two Fourth District courts deciding cases out of Riverside were presented with, well, what about DUI for people under mental (JJN lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 health diversion. Surely, that's different than veterans diversion. And mental health diversion is under a different statute, Penal Code Section 1001.36. And recently these are decisions last year. The Court and Moore vs. Superior Court, 58 Cal.App.5th 561. And Tellez, T-E-L-L-E-Z, vs. Superior Court, 56 Cal.App.5th, 439, both are cited by the People and myself. They look at the mental health diversion statute and Vehicle Code 23640, and their opinion out of the Fourth District was, we think Vehicle Code Section 23640 precludes a mental health defendant who picks up the DUI for doing mental health diversion. But they were very clear to point out they were aware of the new misdemeanor diversion 1001.95, which we're here today on, and they each -- decision clearly pointed out our decision does not apply to the new 1001.95 diversion. It's not before the Court. And there's even a comment by the majority in dicta, I will admit, that Tellez court said it may even be the case or seems it may be the case that the legislator intended DUI diversion to be permitted under the new misdemeanor diversion statute because they didn't exclude it. That's dicta. It's not a ruling. But I think it's instructed that the way the new 1001.95 statute is set up, it says the Court has discretion to divert all misdemeanors except, and they very specifically list four misdemeanors that can -- well, four -- I'll call them classes of misdemeanors. >&0JN Qmm OkDm 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 9 THE COURT: So three misdemeanors in an entire class. MR. PALM: Right. Any offense sex registration cannot be diverted. Any domestic violence under 273.5 or 243(e) or stalking under 646.9. So here the legislature has shown we're aware of all the hundreds, if not more, misdemeanors possible and we're going to specify this class in these three. Certainly, the legislator knew about the DUI. Certainly, the legislature knew about the potential for Vehicle Code Section 23640(b) interjected by the prosecution to try to defeat diversion, yet the legislature chose not to list that. Just as the legislature had not specifically said DUI was eligible under veterans diversion. THE COURT: At least initially. MR. PALM: Yeah, initially. They didn't see it was necessary. And they didn't see the necessity to do that until after the Vanvleck decision. So I think -- THE COURT: Don't you think that that change works against you in some regard in that the legislator, at least presumably, should have learned during vets diversion that not addressing DUIs caused them to have to go back and fix? MR. PALM: Well, it‘s certainly one argument. Of course, the argument I would flip it around to is the legislature would hope the Court's, in all due respect, would know better than -- pbWN mQGUW 10 ll 12 l3 l4 15 16 l7 l8 l9 20 21 22 23 24 25 26 27 28 lO THE COURT: So you would flip it back saying, they did take that into consideration, that's why they didn't enumerate it here? MR. PALM: Exactly. And I think the same can be said on the flip side, not trying to be snide. But I think the legislature could also be thinking, well, we gave the example to the Courts with Vanvleck and the veterans diversion. So the Court should not be rewriting our legislation; and that's where we're at today, the People are asking the Court to rewrite 1001.95 and exclude DUIs. The People even go so far as to cite the pending AB 232 and 282. There is pending legislation in Sacramento from the law enforcement and prosecution lobby to amend 1001.95 to exclude DUIs. That's what they want. But that's not law yet. That's not the law today. It may never become law. That may be, I believe it's 282 and 232. That may never pass. May never become law. Purely speculation. THE COURT: All right. So I think I've heard enough about that. I want to turn to the second part of your argument, presuming the Court decides it has discretion to divert this case pursuant to 1001.95. And what -- I've briefly been able to look at this. But it looks as though Ms. Liddy has no criminal history, is the holder of a professional license, a conviction of this Court would cause her difficulty, not necessarily -- is she holding it now or is she pending b w m H mQONU'I lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 ll the granting of that license? MR. PALM: Pending. She graduated her associate's degree in nursing from DeAnza College in September. She took the nursing exam and passed it in December. She's enrolled in Cal State East Bay bachelor's program for a bachelor's nursing license, and the Bureau of Registered Nurses has her application for a nursing license pending. They will not, I am told -- I hooked her up with a lawyer who handles BRN disciplinary hearings, and his declaration is attached to the moving papers. So the information I am giving you about BRN comes from him. The BRN, according to that attorney, will not act on her application until this case is resolved; pending criminal, they won't act. If she ends up with a DUI conviction, they might deny her application. They might -- this is very common -- the probation terms on her. If they do enact her probation, they would probably prevent her from getting any meaningful employment. They're not going to want to hire her if she's on probation. However, if she's diverted, that will have a huge consequence with the Bureau of Registered Nurses in that it's not a conviction. So they probably will not withhold her application. They may punish her nonetheless, they may make her continue with counseling. She's going to AA voluntarily. They may have her jump through some other hoops, but they probably would not deny her license. \IONU'lyhbuNH OkOOO 12 l3 l4 15 l6 l7 l8 l9 2O 21 22 23 24 25 26 27 28 12 The other complication she has at Cal State East Bay, she's finished the first year and she has to, before the start of the next semester in the fall, present them with her nursing license to finish the last year of the bachelor nursing program. So this holding up of her license could more like deny her if she ends up with a DUI conviction and she's going to have to drop out of Cal State East Bay. So she has put a year in for -- THE COURT: So there is some actual prejudice that -- MR. PALM: Very. THE COURT: -- the defendant can present to the Court. MR. PALM: And at age 35 with no prior record, no prior contact on her DMV printout. The only listing is one accident, civil, and her application for nursing. There's no tickets. No DUIs. And this is as DUIs go very unaggravated. This is on a Saturday night and quarter till 11:00 down lOl southbound. THE COURT: And it's .08 blood. MR. PALM: It's the PAZ test is an 071009 convoluted. And the PAZ is the record calibration record show that device reading a little bit high when calibrated. And then on the evidentiary test, the subsequent breath test is .08. THE COURT: Why don't I hear from the People WM ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 l3 so I understand the defense's position. Counsel. MR. YOO: Yes, Your Honor. Your Honor, the People believe that the defendant's request for diversion in this case should not be granted for three reasons: First, if the statutes are harmonized under the analysis provided by People v. Weatherill, which is cited in the filing. Vehicle Code Section 23460 would control over Penal Code Section 1001.95. Before I get into the analysis, I want to point out that in People v. Weatherill they are talking specifically about Vehicle Code Section 23202, which is the old version of Vehicle Code 23460. And Penal Code Section 1001.21, which is the DA diversion that defense counsel had mentioned. And in that case it's stated that the Vehicle Code precluded Penal Code with regards to DUI diversion. People v. Weatherill also states that there was reason to harmonize statutes when they're in conflict. And the case tells us exactly how to do that. It states that specific statutes should control over general statutes. And in this case, Vehicle Code Section 23640 is the specific statute, and Penal Code 1001.95 is the general. Vehicle Code 23640 talks specifically about violations of two sections of the Vehicle Code 23152 and 23153. While the Penal Code Section 1001.95 relates to all misdemeanors except for a few exceptions. Hopkins l4 v. Superior Court, which defense counsel alludes to, held that Penal Code 1001.80 military diversion controlled over Vehicle Code Section 23640. However, it's important to note that the Court states that the specificity analysis in Weatherill was ineffectual in that case, and that's because military diversion itself is speéific; specific enough because it relates to only a very narrow subset of individuals within the system, allowing it to not control over the Vehicle Code in that section. In this case, however, Vehicle Code Section 23640 is more specific and should control over Penal Code Section 1001.95, which is why diversion should not be granted. Secondly, the legislative intent shows reason to believe that the Vehicle Code 23460 should control over Penal Code Section 1001.95. It's important to note, though, that the legislative history for Penal Code 1001.95 does not reference DUIs at all, does not reference Vehicle Code Section 23460. But there are two types of diversion that give insight into the legislative intent. First would be military diversion, as defense counsel alluded to. In Hopkins v. Superior Court, as previously stated, the Court held that the Penal Code controlled over the Vehicle Code in that case. However, just a year after in August 2017, the legislature amended the military diversion statute and they included specific language ubL/JN 004mm lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 15 stating to exclude Vehicle Code Section 23460 from consideration when it came to military diversion. THE COURT: So let me just interrupt you briefly. Do you think that was then the legislature correcting an error or reacting to the Court making or not making people eligible under military veterans diversion for DUIs? MR. YOO: I believe it was the -- THE COURT: And just generally what I mean is, 1001.95, I understand you are saying it's general because it applies to all misdemeanors, but it‘s very specific in its language as to what it's excluding. I agree it's only discussing Penal Codes, it's not discussing Vehicle Code, but there would really only be two Vehicle Code Sections and it would likely be on that exclusion list anyway, 23152 and 23153. So it's not an exhaustive list that the legislature would have to include. They would have to include two more code sections. And they were very specific as to three; domestic violence and all -- essentially all registered sex offenses. So that's what I am asking for. MR. YOO: Yes, Your Honor. I totally understand. And I believe that the legislature knows about the conflict and they intentionally chose to leave it out. And in Moore v. Superior Court it states that we need to assume what the legislature knows the law and intends there to be an harmonious existing of the current laws in place. And Vehicle Code Section 23460 >bLAJN mQONU'I lO ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 l6 has been around for many, many years in California and the legislature intended for that Vehicle Code Section to control. And in Tellez v. Superior Court, the Court stated specifically that when it came to mental health diversion, that that section of the Vehicle Code controlled over Penal Code Section 1001.36. And it stated that there is no need to read ineligibility of DUI offenses into that Penal Code Section; that‘s because the Vehicle Code 23460 controls those types of cases. And so in this case as well it's similar to the mental health diversion, that statute is similar to the Penal Code 1001.95 that it allows for some exceptions, but the legislative intent was for the Vehicle Code 23640 to control. THE COURT: But here there is no legislative intent from which you can direct me to say the legislature specifically had in mind the Vehicle Code and specifically left it out because it mentioned in the legislative history. MR. YOO: Yes, Your Honor. However, AB 282 has been introduced in April, I believe, of 2021. And that kind of gives us insight into the intent of the legislature. THE COURT: Well, that's intent of the People asking the legislature to act. It's not necessarily the intent of the legislature because it hasn't passed yet. Wk) 10 ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 l7 So somebody authored that. Somebody from the legislature has put their name on it and it's making its way through the process. But it's not necessarily a forewarning to the Courts about the entirety of the legislature's intent because it hasn't passed yet, it's just in the early stages. MR. YOO: Yes, Your Honor. However, in that assembly bill I understand that it hasn't been passed yet. It states that it wants to exclude DUI offenses from being eligible for diversion, and in a public safety bill analysis it states that it was intended to clarify -- THE COURT: Right . MR. YOO: -- the AB 324, which was then codified into Penal Code Section 1001.95. THE COURT: So from your perspective, or at least the argument that you're making, is this a situation, again, where legislature is stacking different bills and laws on top of each other, thought they had covered all of the bases and now seeking to clarify so that people such as myself don't get their intentions wrong? MR . YOO: Yes . THE COURT: Or do you think that it's something other than that? MR. YOO: Yes, I believe so. Vehicle Code 23640 was in place at the time it was passed, and I believe that the legislature making changes will need bwm U‘l lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 18 to -- is kind of Clarifying the conflict between those statutes. THE COURT: Okay. MR. YOO: Lastly, there are public policy concerns against allowing diversion in DUI cases. I mean, in our papers we state that there is a sentencing framework in place for previous DUI convictions and that would be compromised if diversion was allowed for DUIs. And also there are safety concerns that defense counsel does not object to that for DUIs, there‘s hundreds of lives, thousands of lives lost each year and a lot of damage done each year. And so allowing for DUI diversion would not -- would allow for those consequences to be lessened; thereby not deterring DUI as much as it if were not offered. As to the second point regarding Ms. Liddy's credentials and her nursing certification, the People believe that collateral consequence is not something that's covered in a diversion hearing. The People had previously offered a wet and reckless change to this charge. And the People would continue to agree to that charge as long as there was documentation provided stating the collateral consequences present. THE COURT: Well, we do have that; right? Because we have a declaration from an attorney saying there are consequences. It's attached to the defense moving papers where an attorney out of Sacramento has said this is what's going to happen with her license. amfiww ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 l9 So you have that. So presumably she would have collateral consequences considered by your office in order to minimize the prejudice she would suffer, granted they are of their own doing given that we are in criminal courts, but it's something that the District Attorney's Office is taking into consideration. MR. YOO: Yes, Your Honor. THE COURT: I understand. Thank you very much. Mr. Palm, did you wish to respond briefly? MR. PALM: Very briefly. THE COURT: Okay. MR. PALM: The problem is, we don't like change and this is just change. When I started as a criminal defense 35 years ago, there was no wet reckless. There was DUI and there was a dry reckless. And then wet reckless got invented as the People wanted a mechanism for a prior. And there was a big uproar about it. Oh, we can't do this. This is new. And what does the legislature mean by this. I don't think we need to get into any of that. I don't think we need to try to second guess what the legislature intended or didn't intend. This Court can commit no wrong by granting her diversion. Because the statute says this Court has discretion to grant diversion. And no one in this court is going to argue that drunk drivers don't cause carnage; they do. And there's nothing in the DUI fi w N H CDQONUW lO ll l2 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 20 statute that says she's going to go unpunished and she's going to walk out of here scot-free. We are not asking that. We're asking the Court to impose counseling, some remedial imposition, some penal imposition to educate her, rehabilitate her, punish her. We're not asking to walk scot-free. We're just asking the Court to exercise this legislative-given discretion to do in a way that helps her save her career. THE COURT: All right. And the People get the last word. MR. YOO: Yes, Your Honor. THE COURT: Go ahead. MR. YOO: Defense counsel mentions that the People's position would essentially be reading DUI exception into the diversion statute of Penal Code 1001.95. However, what the defense is asking with regards to DUI diversion is for the Court to ignore completely the Vehicle Code Section 43640, which is codified law in the State of California which prohibits DUI diversion. THE COURT: I understand. Submitted by both sides? MR. PALM: Yes. MR. YOO: Yes, Your Honor. THE COURT: So I think that this is one of those situations in which unfortunately both sides are right. I don't think that it's a situation in which the legislature, well intentioned as it was, had considered (JON b ._l l-‘OKOWQONU'I |_l l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 21 every possible issue that could flow from it. Unfortunately, the legislature does not discuss DUIs. It does not discuss the conflict between the Vehicle Code and the Penal Code. So there's very little the Court can draw from the legislative intent portion of this. It had been, I think the View of the Court at the front end was DUIs were precluded, but further analysis and further, I think, thought, I think the Court has some pause now, at least here in Santa Clara County, in that we have -- we -- I sense essentially what Mr. Palm has said, the Court should learn from the past, which is here we had a case in the past where veterans diversion landed with us, it was essentially the same in terms of demarcating what could and could not be diverted. The legislature then sought to clarify whether or not DUI should be a part of the veterans diversion, and did so indicating that it should be part of veterans diversion to the prejudice of all the People who were denied veterans diversion in that window in between the passing of the initial bill and the modification. Here we have another window. But, unfortunately, the legislature has taken one 1990 law and laid another law on top of it without any direction for the Court. So the Court intends to read the law as it is written until it gets further direction from the appellate diversion. And, as written, this new law which appears to *5.me U'l ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 22 be an attempt to have the Court exercise the discretion does not mention DUIs. And the legislature, I can only assume, understanding that it had to write out specific exclusions in the past knew the Court would be in this conundrum and wanted the Court to use its soundest judgment in determining whether or not DUIs are subject to diversion. Until the Court hears otherwise, it is going to assume that it has the ability to divert Vehicle Code Section 23152. And so she's eligible until I hear differently. Now, the next point is whether or not the Court should exercise its discretion. Mr. Palm has demonstrated to the Court there is prejudice to Ms. Liddy. I haven't heard any aggravators in this case, and I am seeking then from the District Attorney if the Court were to grant diversion, it's not saying it is, what terms would be requested by the People. The Court's thought would be that Ms. Liddy would need to complete community service, she would need to enter and complete a substance abuse treatment program; would need to -- would be subject to a preclusion to operate a motor vehicle with any measurable amount of alcohol in her system. I don't expect there are any restitution claims, but there will be a general order of restitution. And she would need to be crime free for a period of six months. So, Counsel, I don't know if you need to meet and confer with Ms. Kianerci about that before I then mQONU‘I-waD-J lO ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 23 hear from both sides briefly about whether or not the Court should exercise its discretion. MR. YOO: Yes, Your Honor, a moment would be great. MS. KIANERCI: Okay. THE COURT: I want to make sure that you have plenty of time to talk. All right. We will pass the matter just briefly. Counsel, you can stay at counsel stable if you'd like. (Whereupon, the matter was passed.) (Off the record.) THE COURT: Back on record in the matter of Cynthia Michelle Liddy. Ms. Liddy is present. She's here with defense counsel. The People are present again. Counsel. MR. YOO: Yes, Your Honor. First, I would like to make it clear on the record that the People oppose diversion in this case. The People still believe that the Vehicle Code Section 23640 is law in California and precludes Penal Code Section 1001.95 for diversion. THE COURT: Duly noted. MR. YOO: Next, we'd also like to mention that in this case the prejudice finding. We believe that there is no prejudice in this case because the People have previously offered a wet and reckless, which would fiwN U‘I lO ll 12 13 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 24 allow Ms. Liddy to continue with her nursing credentials and also continue finishing up her degree. Next, we also believe that allowing for diversion in this case would take away from the deterrence that the DUI or wet and reckless conviction could have on future behavior. For a wet and reckless or DUI, the Court admonishes the defendant and if they do have happen to hurt someone or kill someone on the road, again, that would be charged as murder. And that is one of the very important deterring effects of having a charge on record. So we believe that allowing diversion in this case would take away from that. THE COURT: So is that in this case or is that just as to DUIs generally? You are saying that there's no deterrence, but you are saying -- I understand what you are saying, which is that you disagree that the diversion is eligible? MR. YOO: Yes. THE COURT: Once the Court has reached that threshold, then the second question is whether or not this person is a good candidate for diversion. MR. YOO: Yes, Your Honor. THE COURT: And so when we're talking about that, then every DUI case is no longer particularly of interest to the Court, this defendant. I understand the first part, which is you disagree that there's any prejudice because the lesser included that you would ¢ w m H QONU'I 10 ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 25 offer would presumably carry less repercussions but probably not none to Ms. Liddy. MR. YOO: Specifically for this case, Your Honor. THE COURT: Okay. Thank you. MR. YOO: Because if Ms. Liddy were to harm someone or kill someone on the road, we would only be able to charge her with a misdemeanor in that case. THE COURT: Arguably. MR. YOO: Right. Next, if the Court does allow for a diversion, the People have a couple of conditions that we would agree to. First, the three months of the first offender program. Second, would be an online MADD class. And third, would be 150 hours of community service. And the reasoning behind that is for a DUI conviction there is six days of community service. Wet and reckless would double that to 12. And then if this is a diversion, the People believe that there should be more community service being done, which is why there should be 150 hours of community service in place if diversion is granted. THE COURT: Okay. I understand. Mr. Palm. MR. PALM: I don't want to kick a gift horse in the mouth. I don't have any objection to the MADD. As far as the school, I believe that's a discretion of the Court. Most DUIs are a three-month program; a wet QOWW-bwh) i-Ir-l Howm l3 14 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 26 is a 12-hour program. And I think that's totally up to the discretion of the Court, whether or not the Court would deem rehabilitative in this instance. I can report to the Court and I burned off one copy. She's had the most perfect log with AA attendance than any Client that I have ever had. And she has been doing AA regularly and weekly since January 8th. Her last class was on June 9th. And she's getting three a week, some weeks more. I would ask the Court to take that into account when she has been voluntarily and regularly doing AA since January. But community hours, we will stip. She is working full time and sometimes part time as a full-time as a veterinary assistant in Palo Alto. Classes are over for the summer, but they start again in August. August -- so she would be full time back in Cal State in August. So I would ask the Court to take into consideration the small window she has with her full-time work at the vet to do the other things this Court is going to require. Other than that, I would submit to the Court's discretion what the Court thinks. THE COURT: All right. Anything further from either side? MR. PALM: NO, Your Honor. MR. YOO: No, Your Honor. THE COURT: So the Court having already determined in its opinion that diversion is allowable in this case, having heard from both sides, the Court does '_l I-‘OkomQONUWt-bww }_| 27 find it is in the interest of justice to divert Ms. Liddy at this time. The Court initiated diversion pursuant to Penal Code Section 1001.95. The terms of that diversion would be the following: Going to tell Ms. Liddy what they are so that she can make an informed decision about what she would like to do. I will admonish Ms. Liddy that this is, from the Court's perspective, still an alcohol-related event and you should know that there is now going to be a transcript where I tell you: Driving under the influence of alcohol is extremely dangerous to human life. If you continue to drive while under the influence of alcohol and as result of that driving, someone were to die, you could be charged with murder, not vehicle manslaughter: murder. Do you understand that? THE DEFENDANT: Yes . THE COURT: The terms of this grant of diversion would be one year of diversion. One year of good conduct. What that means is no new law violations. You may not drive with any measurable amount of alcohol in your system. You may only drive if you have a valid California driver's license, proof of insurance, and proof of registration. You must enter and complete the three-month first offender program. There is a general order of restitution. What that means is if during the next one year the District Attorney's Office becomes aware of 4001.5me lO ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 28 somebody having out-of-pocket expenses related to this incident, you could be required to pay that as a condition of this grant of diversion. You are to complete 8O hours of sentencing alternative. The Court arrives at 8O hours the following way: A standard DUI is generally 6 to 8 days. Because this is a diversion and you are reaping a benefit of that, the Court then set it at 10 days converted that to 8-hour days, eight zero hours of community service. And Mr. -- sorry -- Counsel, that can be through SAP or it could be on letterhead. SAP is generally an easier way to keep track of it for the defendant -- MR. PALM: SAP. THE COURT: -- out of county. MR. PALM: SAP stands for what? THE COURT: Sentencing Alternative Program. MR. PALM: Okay. She can do that in her county? THE COURT: You just need to tell me what county that would be. MR. PALM: She can do it in this county. THE COURT: And then there would be the Mothers Against Drunk Driving panel. I am not sure if she just needs to Google that; oftentimes, the people have a flyer. MS. KIANERCI: Yeah. There is a flyer in m w m H U1 10 ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 29 Department 52 that provides a lot of information for the website. MR. PALM: That's the one section. THE COURT: That's the one section. MR. YOO: The one hour's section. THE COURT: So Ms. Liddy, those would be the terms of your diversion. It's very important for you to understand something, though, that's a lot. That's essentially the beginning the one year of a grant of court probation for a DUI. If you fail any one of these conditions, I would terminate your diversion and you would return exactly to this point, whether or not the People honor their initial offer would be up to them. But you would then be facing a DUI again. Do you understand that? THE DEFENDANT: Yes . THE COURT: Do you understand that you would have demonstrated to this Court that you are not a good candidate for diversion by failing any one of these conditions, and you would be unlikely to get the benefit of the doubt from the Court a second time. Do you understand that? THE DEFENDANT: Yes. THE COURT: Do you understand that the District Attorney's Office is going to view this not as a chargeable prior DUI, but certainly as a second offense if you were to reoffend in the future. Q&U‘lfiwm m lO ll 12 l3 l4 15 l6 17 18 l9 20 21 22 23 24 25 26 27 28 3O Do you understand that? THE DEFENDANT: Yes, I do. THE COURT: With all that in your mind, ma'am, would you like to participate in Court-initiated diversion? MR. PALM: May I ask one clarification, Judge, if I may. I thought I heard the Court earlier mention six months, and I discussed that with her on the break. THE COURT: I did indicate that, and then I heard from counsel and given the seriousness of this offense, the Court changed its mind. And it's a one-year period. Because I think that it needs to have a longer period of supervision. The statute allows two years. Generally, I do a six-month grant, but DUIs are amongst the most serious misdemeanors in the Vehicle and Penal Code. And because of that, I don‘t think a six-month grant is appropriate. MR. PALM: Submitted. THE COURT: So the criminal proceedings would be suspended for that entire time. And for purposes of the record, the People object that I think it's eligible and any of terms the Court is offering up as part of the diversion. MS. KIANERCI: Right. Your Honor, we are objecting to the Court's analysis of the new diversion law, the Court's rejection of 23640. We are objecting to the terms because we believe a wet and reckless would have just those same terms and that's with conviction, mflmm¢wNH 10 ll 12 l3 l4 15 16 l7 l8 l9 20 21 22 23 24 25 26 27 28 31 so the DUI diversion should have much more onerous terms than a wet and reckless. THE COURT: I understand. MS. KIANERCI: That would be the basis of our objection. THE COURT: I just wanted you to have an opportunity to make that record. MS. KIANERCI: Thank you. THE COURT: All right. Mr. Palm. MR. PALM: Submitted, Judge. THE COURT: All right. Ms. Liddy, do you understand the terms of the proposed Court-initiated diversion? THE DEFENDANT: Yes. THE COURT: And is that what you would like to do today? THE DEFENDANT: Yes. THE COURT: Criminal proceedings are suspended. I am granting Court-initiated diversion for a period of one year. During that period of diversion, you may not violate the law. You must engage in only good conduct. You are not to drive with any measurable amount of alcohol in your system. You may only drive with a valid California driver's license, proof of insurance and proof of registration. You are to enter and complete the three-month first offender program. A w m H QONU‘I 10 ll 12 13 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 32 Did you wish to be in a program in this county as well? MR. PALM: Yes. THE COURT: That would be done in Santa Clara county. You must enter and complete 80 hours of uncompensated volunteer work through the Sentencing Alternative Program. You must attend the Mothers Against Drunk Driving panel, but there is a general order of restitution. The People object to any of these terms. Are the People requesting additional terms not addressed by the Court? MS. KIANERCI: Yes, Your Honor. We were requesting more than 8O hours as noted. When we offer collateral consequence, wet and reckless, we double the terms of a general DUI. The DUI has 6 days, 8 hours a day for community service, doubled would be 12 days, which is 96 hours. So we believe strongly if the Court is granting a diversion, it would result in a dismissal of the charge. The terms of community service should be much more than someone else in this courtroom who gets a DUI, wet and reckless, or collateral damages. THE COURT: Understood. Are there any additional terms other than aggravating the terms I have already discussed? MS. KIANERCI: NO. g w m H QJQGU'I lO ll 12 l3 14 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 33 THE COURT: Okay. You understand all of these terms, Ms. Liddy? THE DEFENDANT: Yes. THE COURT: Do you accept them? THE DEFENDANT: Yes, I do. THE COURT: You need to have a return date for a proposed graduation. I know the People want to have a check-in date. Normally, I just set the graduation date. But given this, that it's one year instead of six months, I don't know if you want to Check in at six months. MS. KIANERCI: I think it would be appropriate given the seriousness of the charge that we have a check-in date before the one-year mark to make sure that the programs are being completed. THE COURT: At least good conduct if there's nothing that at that point should result in a termination. MS. KIANERCI: Correct. THE COURT: So six months out brings us to December 8th-ish. MS. KIANERCI: I think it should stay with your Honor. Do you have a normal courtroom? Because I think if you granted this diversion, you should keep it. MR. PALM: I would join. THE COURT: You mean to waive -- if you refuse to waive Arbuckle, to the extent that happens, I will put it in my calendar and I will show up. But I am bww ONO? ll 12 l3 14 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 34 coverage, so I don't have a place where I can put you in. MS. KIANERCI: So I think that poses a problem because my understanding of the statute is that the Court is supposed to engage in a more meaningful analysis. THE COURT: Right. What I am saying is we'll treat this as though it's not an Arbuckle waiver, so I will come to court on that day, me and my calendar. I just can't send it to a department where I know I am going to be, because I don't have an assignment right now. So I was covering 42, it would have been easy for me to do 42. But, as you can see, I'm felonies this week and in another week I am in domestic violence. So I don't know where I am going to be, but I am going to set it in 52, but I will hear the case because I will treat it the same as the sentencing where Arbuckle hasn't been waived. MR. PALM: I would join in counsel's request. THE COURT: I would put it on a Friday afternoon then, because those calendars tend to be a little bit lighter and it would be easier for me to attend just for purposes of that hearing. MS. KIANERCI: That sounds good. THE COURT: So why don't we say December the 10th at 1:30 in Department 42, that will be for review on Court-initiated diversion. b w m H OQmQONU'I 12 l3 14 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 35 MR. PALM: Can her appearance be waived if everything is done, or does the Court want her there? I will be there, of course. MS. KIANERCI: Yes, I think the purpose of diversion is to ensure that the defendant understands the gravity of the charges. THE COURT: I agree. I think that given the nature of the offenses what it is, that Ms. Liddy should be there and she should be ready to present everything she‘s been doing educationally that's not ordered by this as well as all of the terms that I set for her. MR. PALM: Very well, Your Honor. Setting in what department? THE COURT: 52. MR. PALM: Is the Court setting a completion date? THE COURT: No. We'll set it all on the review date. Because that's the six-month mark and then at the one-year mark. I So as long as Ms. Liddy is in good standing, we'll set it another six months out to make sure that she's doing what she's doing. If there are any hiccups, criminal proceedings will be reinstated at that time. MR. PALM: Thank you, Your Honor. THE COURT: Thank you all for that. MR. PALM: Thank you. (Whereupon, the proceedings were concluded.) --oOo-- U‘IubUJN Q lO ll l2 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 36 STATE OF CALIFORNIA I SS COUNTY OF SANTA CLARA } I, MONICA A. COMER, CSR, certify: That I was the duly appointed, qualified shorthand reporter of said court in the above-entitled action taken on the above-entitled date; that I reported the same in machine shorthand and thereafter had the same transcribed through computer-aided transcription as herein appears; and that the foregoing typewritten pages contain a true and correct transcript of the proceedings had in said matter at said time and place to the best of my ability. I further certify that I have complied with CCP 237(a)(2) in that all personal juror identifying information has been redacted, if applicable. DATED: MONICA A. COMER, CSR California Government Code section 69965(d) states: "Any court, party, or person who has purchased a transcript may, without paying a further fee to the reporter, reproduce a copy or portion thereof as an exhibit pursuant to court order or rule, or for internal use, but shall not otherwise provide or sell a copy or copies to any other party or person." EXHIBIT G 45 If you have issues viewing or accessin_§ this file contact us at NCJRS.gov. _. ....__ -""‘“‘___.-""' ..-.--‘-“"' --_ flfPAHTflEM‘ 0F HOWE VEHMLf-S AN EVALUATEON 0F THE CALIFORNIA DRUNK DRIVING COUNTERMEASURESYSTEM AN OVERVIEW 0F STUDY FINDINGS AND mucv IMPucATIONs 111960 U.s. Department or Justice National lnemuta o! Jusilcs This document has been reproduced exactly as (sceived frorn the person or organization originating il. Points of vlew or opinions slaled In [his document are lhose of (he aulhors and do not necessarlly [1/1 (.3, represent lhe ofilcial poslllon or policies of lhe Nalional lnslltule o! Justice. Permission to reproduce lhls copyrighted malerlal has been granted by California State Department of Motor Vehicles lo [he National Criminal Jusllce Heterence Service (NCJRS). Further :eproductlan outside 01 the NCJRS system requires permis- slon o! the copyright owner. DECEMBER 1987 DEPARTMENT 0F MOTOR VEHICLES A Publ/c Service Agency III? 60 Author: Raymond c. Peck - cAL-DMV-BSS-BT-1 12 Research and Development Section wmam' nanny..- lav. .I -mchgump mun...- wim '.~.. fl. .. .-....rm, - u. "w hr th-w-r- ”/96 9 50232-101 REPORT DOCUMENTATION 1. REPORT N0. 2. 3. Recipient's Accession No. PAGE CAL-DMVHRSS-87-‘112 4. Title and Subtitle & Repan Onto l 7 ' s temb r 98 An Evaluation of the California Drunk Driving Countermeasure eP e a System - An Overview of Study Findings and Policy Implications 7. Author“) - 8. Porlurmlng Organization Rapt. Na; Raymond C. Peck CAL-DMV-RSS-87-112 10. Pmlad/Taak/Work Unlt No.9. Performing Orgunlzatlon Name and Addrou California Department of Motor Vehicles Research and Development Section' 11. Commune) or erm(e) No. 2415 First Avenue (m Sacramento, CA 95818 (m 12.. Spamming Organization Name and Address 13. Typo of Report a Parind Cowmd Final 14. 15. Supplementary Note: 16. Abammt (Limit: 200 words) This report summarizes the results and policy implications of a seven-part study entitled An Evaluation of the California Drunk Driving Countermeasura System. The study pinpointed numerous deficiencies in California's DUI control system and concluded that license suspension is generally more effective than alcohol reha- bilitation programs in reducing the accident risk of DUI offenders. The results suggest that using both sanctions simultaneously would be superior to either alone. An evaluation of pre- and post-1982 rates indicated that the tougher sanctions and illegal per se EAC statutes (0.10%) enacted in 1982 reduced the incidence of alcohol related accidents and DUI recidivism. Nfififl'fi «mm 34 4988 11. Document Annlyals a. Dascdptnrs traffic safety, law enforcement, accident prevention,'evalua§ion, government policies, alcoholism, traffic regulations b. ldontlfleu/Opon-Ended Terms alcohol, drunk driving, legal deterrence, license revocation, risk management, alcohol rehabilitation | c. COSATI Flold/Group 1!. Avnllablllty Statement 19. Security Cl“: (This Repofl) 21. No’ of Pine: Unclassified 58 20. Security Class (l'hls Page) 22. Price Unclassified , (Sac ANSl-EBJB) s" mumcuan. on Royau- OFTIDNAL FORM 272 (4-77) (Formerly NTIS-SS) Dcpartmant n! Commut- -....____ _.. _..- __ _ ' fl . v. v '4 r ~'. .x ui‘ n 7 ‘r \V. 5 t. z .I' *4 I ; a -«- H .g-q-a ~.-,-. ‘ PREFACE This report summarizes the resu1ts of a seven-part study on DUI control which was initiated by the Department of Motor Vehic1es. The fina] vo1umes of the study were published recent1y, and the resu1ts reinforced my be1ief that much more needs to be done to reduce the threat posed by DUI offenders. In addition to providing a summary of what each of the study_modu1es found, I asked my research staff to inCTude a po1icy overview chapter in which the various findings from this and other studies were integrated into a compre- hensive po1icy prospectus on DUI contro1. The very nature of a comprehensive systems analysis required consideration of po1ice enforcement and court adjudication e1ements'over which DMV has 1itt1e or no responsibi1ity. We be1ieve that presentation of a comprehensive array of ideas and counter- measures at this juncture better serves the 10ng-range objective of improved DUI controT than wou1d a narrow1y focused set of DMV po1icy recommendations. Not a1] of the ideas may be perceived as meritorious, and others may prove infeasible. The task at hand is to initiate the process of using the ideas presented here as a starting point in evo1ving an improved system of DUI contro1 in Ca1ifornia. A. A. PIERCE Director ”.351 II “v.15? 3M” 'm W 1" {H Lfir “‘H‘W“W‘?flm'-\WI ACKNOWLEDGEMENTS This summary report represents contributions by numerous past and current members of the Research and Development Section. The authors of the individua] vo1umes are 1isted in the bibWiography section, and the numerous individua1s who contributed to each study are acknow1edged in the respective report voWumes. I would 1ike to thank four of my staff for their assistance in preparing and editing this report: Dr.nMahy Janke, Clifford HeIander, Michae1 Ratz, and Debra Difuntorum. The major typing of the report was done by Fe ArconadOw Hignight under the supervision of Seresa Hartwe11. The reports summarized herein were funded by the Nationa] Highway Traffic Safety Administration through a grant administered by the ca1ifornia office of Traffic Safety (Grant #088102). The opinions, findings, and concIusions expressed in the pub11cations are those of the authors and not necessariWy those of the State of Ca1ifornia or the Nationa] Highway Traffic Safety Administration. i1 EXECUTIVE SUMMARY This report summarizes the resu1ts and po1icy imp1ications of a seven-part study entit1ed An Eva1uation of the Ca1if0rnia Drunk Driving Countermeasure System. The study pinpointed numerous deficiencies in Ca11fornia's DUI contro1 system and conc1uded that 1icense su5pension is genera11y more effective than a1coho] rehabi1itation programs in reducing the accident risk of DUI offenders. The resu1ts suggest that using both sanctions simu1taneous1y would be superior to either a1one. An eva1uation of pre- and post-1982 rates indicated that the tougher sanctions and 111ega1 per se BAC statutes (0.10%) enacted in 1982 reduced the incidence of a1coho1 re1ated accidents and DUI recidivism. Key recommendations inc1ude enactment of an administrative per se suspension statute and mandatory suSpension of both first and repeat offenders. The comp1ete set of recommendations is summarized on the attached table. . 1 . P R O C E S S l . D e + e c + l o n o f I m p a i r e d d r i v e r l l . A d j u d i c a f l o n p r o c e d u r e s P R O B L E M / D E F I C I E N C Y . l n s u f f i c l e n + p r o b a b l f l f y o f d e + e c + l o n A e r r e s f . C o n v l c f l o n r a + e f o o l o w . S u b o p + l m a l s a n c t i o n s . F a i l u r e + 0 p r o s e c u + e f o r d r l v l n g w l + h s u s p e n d e d l l c e n s e . U s e o f l n a p p r o p r l a + e a n d n o n s + a + u + o r i l y p r e s c r i b e d s a n c + l o n s . T A B L E 2 E L E M E N T S 0 F A N I M P R O V E D D U I C O N T R O L S Y S T E M C A U S E . l n a d e q u a + a n u m b e r o f f r a f f l c e n f o r c e m e n + p e r s o n n e l - l e f l c u l + y l n d e f e r m l n l n g p r o b a b l e c a u s e o f i m p a i r - m e n f f r o m r o u f l n e o b s e r v a - + b n . E x c e s s i v e p l e a b a r g a l n i n g . T o o m a n y s a n c f l o n o p + l o n s . L a c k o f e m p l r l c a l l y - a n c h o r e d s a n + e n c l n g g u i d e l i n e s . C o u r t u n a w a r e o f d r i v e r ' s l l c é n s e s + a + u s . . L a c k o f p r o o f o f s e r v l c e o f s u s p e n s i o n o r d e r s . . A u 1 . 2 3 a n S O L U T I O N M o r e e f f l c l e n + a l l o c a f l o n o f f r a f f l c p o l l c e I n f l e l d . I n c r e a s e d p e r s o n n e l . S o b r l e + y c h e c k p o l n f s . P r e a r r e s f b r e a f h s c r e e n i n g d e v i c e s . U s e o f o p f l m u m F l e l d S o b r l e f y T b s f b a + + e r y . D e c r e a s e n u n b e r o f s a n c + l o n o p + l o n s a n d s u b J e c + I v e j u d l c l a ! d l s c r e f i o n . R e q u i r e p r e s e n f e n c e l n v e s + l - g a f l o n a n d u s e o f P S I g u i d e - l l n e s l n d e + e r m l n l n g s a n c f l o n s . E l l m l n a + e c o u r f d i s c r a + l o n o v e r l m p o s l f l o n o f l i c e n s e s u s p e n s l c n s . N a r r o w + h e c o n d l + l o n s u n d e r w h [ c h D U I o f f e n s e s c a n b e r e d u c e d 1 o a l e s s e r c h a r g e . P r o s e c u f e 1 4 6 0 1 c a s e s w l f h o u + s i g n e d p r o o f I f o r d e r m a i l e d f a a d d r e s s o f r e c o r d ( s e e I V f o r r e l a + a d r e c u n m e n d a + l o n ) . D e f e r m l n e l i c e n s e s f a f u s a 1 + f m e o f a r r e s + a n d p r l o r + 0 a d j u d i c a - + l o n . C I + e a n d b o o k f o r v . 0 . 1 4 6 0 1 . R A T I O N A L E / S U P P O R T P a g e s 2 2 - 2 4 , 3 1 - 3 3 a n d 4 5 - 4 6 . S e e r e f e r e n c e s 1 , 1 7 , 3 1 , 3 7 , 4 4 a n d 4 7 . P a g e s 2 2 - 2 4 a n d 3 7 - 4 6 . S e e r e f e r e n c e s 1 , 1 7 , 3 2 a n d 3 3 . S o l u f l o n # 2 e m b o d i e d I n r e c e n + l y e n a c f e d l a w ( V . c . 2 3 2 0 5 ) b u + u s e i s d l s c r e f l o n a r y . A u + h o r l + y f o r s o l u + l o n £ 5 e x l s + s l n s f a + u + e b u f l s s e l d o m u s e d . . r o tm 2 5 9:. .3 8 : 5 2+ 5 .: ton s. » E t on 5 8 h+ . E So g g wu 3 3. 2. 2 3 L on e: uca 5 2. 9. 8 0 E >_ +_ ._ o . t= u n. E fi w c o.. t o. § § 8 c_ £ v 2. 9. 2. E 3+ 2 .nn “ E D Om . 2 « g o t .- 00m $ 7 3 8 n v~ u - 6 qu « S E 5 000 9 :.“ G E R : L 9 v 8 : on E co = 8 v. 3 3 2 9 00.: n. co t t a g e. t s 8. 5 2 600 m o «+ 8 .: me c o . 0 3. u m f g. Lo. 3 7. 9 25 0 . C o c O ben E .m 0 0: 8 8. : :- uo E o t Bo n un : 8 m E t ona a n vc n .mownw va n m . gwnn ”. 6 7 5 8 .0 ; E « 0 2 3 . E . 5 2 2 8 L 3 t_ L o fua S I L K 4n E a R :n .on .un .Nu :n . 5 .m R .o ._ 8 2 8 2 9. c om .m Y R E a vu onw 5 qu . m T : n 8 3 k gm h ézol fi é Q uo t a s 8 8 u.. : B S E us. “ 2.: 50. 39 %. “ 3: 8 : E g o 0+ Lo go c. h oo k 00. 3 .5 3. 3 : «0 1 5 2. : an m t i £ 3 8 .. 2 8 : 2 2 9. t a m . 4 5 . 5 9:. R m 2... 8 t_ - E £ o b 2.. £ 8 8 ... on 8 . 5 a x i ng 8: 8 : 3 + 5 5 3 9 ? + 3. 9: 2. 8 : 3 3 3 t sa . ? oc ov c an ma: m_ F C . 8 : ‘5 E0 : «o bv ao h 9 5.0 3 0 800 : v. 3 8 2 b : . n f ov taco 8 5: 5 . . 6 2 2 2: 8 3 3. 8. 2. 2 9. « I t $ 0 2 2 2.00 c on : C 2 0 1 3 : u. co. uc on n an OL E: manna c. L 8 3 c o. nc nn u a m 9: 50 5 9 : 60 0 ‘: . . 800 nc o_+ h+_ + n =_ v 5 9. 3 ;: o f. $ 0 «nu. c o z uem u o B. Ea 5 .: n fi u : 5 : o c g . . E u k c o z n u t lfi 1 5 3 0. 2. E go 3 3 - 2 3 % + 5 . 2 5 8: 2 5 uco E uaxm . E o ic on u... “ L 8 8. n : €. 2 5 : 3 0 0 . o: - n E- b gn aw 3 3 3 2 3 S 3. 0 2 :.. v. 5 8 :- . £ 5. 3 3... 9 6 8 .1 2 R. E B E c o «a « 2 3 3 .5 § L 3 k L o.- = o_ fl. omn=u . 0 £ 9 3. 8. 50 .. 3 2 2. 0 % : 8: 8 : C 8 8 3 : 2 9. S f, L 0 5 9. . 2. E K E K ad a l umn us Ar c s E . 8 3 3 %. . 2 8 : 8: . 3 5 : 8 3 t o g n u 2 2 % . o h b Du on c au : g » 2- 30 . 2. 5 : uom é o B fl v .0 5 f.. - C ooc efi o + 9. : c . 8 : 5 : 6 8 con : 3 : 8 9. ; 3 0+ 2. 3 : 9 3 3 0: : 9. 0 2 : 3 5n 20. 2 3 : c 2 3.5 2 8 : 2 2 3. t e a . fiuo te eon : : 2 9 3» : ?_ L a E t 2. 3 g » co. n c annan £. t . ¥«. :. §a co to cu 3. 5 3m .- 4 3 3 3 8: 9- 5: h o 00: 0 2 : 9. 2 2 : 3: +3 0 3.. . 0 2 .6 coo n+ § & u_ ton mm mm . . n fh n o 2. : o. +u_ h.n a .. 0 2 00 : cn t osn = 8 v 5 m 3 : o l E 3 3 8“. Ice: van «+ 3 3 % 5 50 k. : 3 3 ; 2 .2. 3 . 3 coo “ taco . 6 0 2 2 2 80 : 8 : v 3. 5a ?“ on Z... B v 3. 8a“ : > 3 9.. . n. E tc { o i u a a u E F oo t £ 3 9 8 . 6 cac ao : u t i l uv o f. n: gu K +0: 0v 5 3 3 7 .: « taco . . E o fl a t 2. 5 2... 3 S. E o lv 8 2 2 2. 8 31 2.. an 8 00. ” 5 : 5 : 3- va n 0 . 5 : ; . 5 2. 3 » . 3 2 5 3 50 E t a.. > 3 2 ? + 9. « 8... m E t o E 0 : th m o fi lm . . 5 5 : 8 2 8 .... : 5 8o fo l k: 5 730- 5 5- 2. ? :bn u o t: 0 2 g : w e fin .- . 5. 3 2. 3. 0 t o eL Lo. c n. a fi gn 8: 8 : « a 8 : + 5. 2 3 %... . 5 . 5 2. 3. 0 + 8 : L o» co. nc l na n 8: 8 : u o 3: E: E a t ; . 5 9 2 3 .1 3: 3 8 . . 0 : Iu -EFf- I EU f : = 5 c oo l s n 3 8 £ 5 5 .. . wm= g r n n + s a r e I n p r o g r e s s + 0 l m p l e r n e r r f + h e s e s o l u f l o n s . TABLE 0F PREFACE. I a t o a I 0 u a o a I o 0 o CONTENTS ACKNOWLEDGEMENTS . ..... . ...... EXECUTIVE SUMMARY.......... . INTRODUCTION . . . . . . . . . . . . . VOLUME 1 ............. . . . VOLUME 2 . . . . . . ........ . . VOLUME 3 ........... . . . . . VOLUME 4 . . . ..... . . . . . . . . VOLUME 5 ............ . . . . VOLUME 6 ........ . . . . . . . . VOLUME 8 ........ . . . . . . . . POLICY ANALYSIS AND RECOMMENDATIONS. . BIBLIOGRAPHY . ............. . LIST 0F NUMBER TABLES 1. Nationa] Commission Against Drunk Driving Check1ist of Se1ected DUI Countermeasures November 10, 1986 . ...... 2. E1ements of an Improved DUI Control System . LIST 0F FIGURES 1. Pre-AB 541 DUI System F1ow . . . . 2. Post-AB 541 DUI System F1ow. . . . 3. Four-year accident rates for the three study groups by category of accident . vii PAGE i1 iii 11 18 22 26 29 31 54 38 51 10 LIST 0F FIGURES (Continued) NUMBER 4. Two-point convictions for participants, nonparticipants, and match counties by fo110w-up year..... . . . . . . . . . . 5. Adjusted major convictions for suspended and restricted second offenders by gender. . . . ........... . . . . . 6. Adjusted tota] accidents for suspended and restricted second offenders by 6-month time periods. . . . . . . . . . . . . 7. Adjusted tota] accidents for five first offender groups by two 6-month time periods. ......... . ..... 8. Adjusted major convictions by five first offender grOUps..... 9a. Odds of a subsequent accident occurring before and after AB 541 by DUI offender status. (Eva1uated 1 year subsequent to entry conviction date.) . . . . . . . ....... 9b. Odds of a subsequent a1coho1 accident occurring before and after AB 541 by DUI offender status. (Eva1uated 1 year subsequent to entry conviction date.)............ 9c. Odds of a subsequent major conviction occurring before and after AB 541 by DUI offender status. (Eva1uated 1 year subsequent to entry conviction date.) ....... . . . . . 10. Total accidents for suspension-reinstated and suspension- set-aside subjects by 6-month fo11ow-up period. . ..... . . . 11. Two-point convictions for suspension-reinstated and suspension- set-aside subjects by 6-month f011ow-up period....... . . . 12. Proportiona] f1ow statistics for the 1981/1982 DUI arrest samp1es...... . ................. 13. Potentia] "effect" channe1s of an increased sanction program. . . 14. Objective of Ca1iforn1a enforcement/driver contro1 process as a system . . ........... . ..... 15. A risk management mode] of driver contro] . . . . . . . . . . . . 16. Tree diagram of current DUI sanctions . . . . . . . . . ._. . . . 17. Conceptua] f1ow diagram of the post-conviction DUI process (1/1/87) ........ . . . . . . . . . . . . . . . . . viii PAGE 14 15 15 16 16 17 17 21 21 25 32 35 36 42 44 JED INTRODUCTION In 1980 the Department of Motor Vehic1es received a grant from the Ca1ifornia Office of Traffic Safety (OTS) to conduct a 1arge sca1e eva1uation of Ca1iforn1a's DUI contro] system. The grant, entit1ed An Eva1uat10n of the Ca1iforn1a Drunk Driver Countermeasure System, actua11y enta11ed eight re1atiVe1y independent study modu1es. The reports produced from this effort are 1isted be1ow: Vo1ume 1: Ana1ysis of DUI Processing from Arrest Through Post-Conviction Countermeasures. This modu1e was concerned with ana1yzing the tota] DUI countermeasure system in Ca11fornia in order to identify gaps and to recommend remedial steps to c105e those gaps. With the assistance of an interorganizationa] task force, f1ow charts were constructed of the DUI process from point of arrest through adjudication, treatment and Department of Motor Veh1c1es action. Vo1ume 2: The Long-Term Traffic Safety Impact of a P11ot A1coh01 Abuse Treatment as an A1ternative to License Suspension. This modu1e consisted of a fo11ow-up eva1uation of the Tong-term (4 1/2 year) traffic safety impact of the drunk driver diversion program origina11y established in 1975 by SB 330 (Gregorio). The study samp1e consisted of subjects used in the origina] four county demonstration project authorized by SB 330. Volume 3: Eva1uation of the Specific Deterrent Effects of A1ternative Sanctions for First and Repeat DUI Offenders. This modu1e eva1uated the short-term effects of post-AB 541 1icense contro1 and a1coho1 rehabi1itation actions on first and repeat offenders. In contrast to Modu1e 2, this study uti1ized a 1arge statewide probabi1ity samp1e and inc1uded an evaluation of first offender programs. Vo1ume 4: An EVa1uation of the Process Efficiency and Traffic Safety Impact of the Ca1ifornia ImpWied Consent Program. This modu1e addressed the imp1ied consent system for drivers who refuse the chemica] test; more specifica11y, the study described the implied consent system, identified probTems in this l\ system and modes of circumJention, eva1uated the deterrent effect of the 1mp1ied consent suspension, and proposed system changes. Vo1ume 5: The Ca1ifornia DUI Countermeasure System: An Eva1uation of System Processing and Deficiencies. The objectives of this module were twofold: (1) to provide-empirica1 data on the vo1umes and time frames associated with the DUI Systen f1ow, as identified in Modu1e 1, and (2) to identify and provide empiricaW data on system deficiencies which a11ow DUI offenders to avoid timely processing or circumvent system countenneasures. Vo1ume 6: An Eva1uation of the Impact of a Warning Letter for First Time DUI Offenders. The objective of this modu1e was to deve10p and experimenta11y eva1uate the impact of warning 1etters and educationa] materia1s suitable for first DUI offenders. These mater1a1s included information on 1ega1, socia], and biochemica] aspects of a1c0ho1 use. Vo1ume 7: This module was to be an ana1ysis of the tota] DUI countenneasure system in terms of process efficiency theory and optimum resource a11ocation principWes. It was not implemented due to funding 1imitations. Vo1ume 8: Deve10pment and Evaluation of a Risk Assessment Strategy for Medica11y Impaired Drivers. This modu1e deve1oped and eva1uated a strategy for assessing the traffic safety risk of drivers who haVe possib1e physical and/or menta1 conditions, inc1uding a1coho1 prob1ems. By agreement with the funding agency (OTS), Module 7 was deleted as a requirement 0f the grant. Instead, it was agreed that the Department w0u1d subsequent1y puinsh a report presenting an overview of each modu1e and assessing the project's po1icy imp11cations on DUI contra] and countermeasure deve1opment in Ca1if0rnia. The present report represents that effort and objective. The fo11owing pages present a brief summany of the findings and conc1usions of each modu1e, and the final chapter presents a detai1ed ana1ysis of the po1icy 1mp1ications for DUI contro] in CaWifornia. A number of recommenda- tions are offered for improvements in both the DUI contro1 process and countermeasure structure. l} VOLUME 1: ANALYSIS 0F DUI PROCESSING FROM ARREST 'THROUGH POST-CONVICTION COUNTERMEASURES This study focused on describing Ca1ifornia's drunk driver contro1 system. It is specifica11y concerned with describing and ana1yzing a11 aspects of the system for processing motorists inv01ved in driving under the inf1uencé of a1coho1 (DUI), from the point of arrest through the charging, convicting, sentencing, and treating, to the disposition-recording and action by the Department of Motor Vehic1es (DMV). The specific objectives were: 1. To deve1op process f1ow charts for the who1e DUI system, depicting a1] e1ements and decision points concerning drivers, abstracts, and 11cense actions invo1ved in the reporting system, both before and after new 1egis1ation (AB 541) became effective on January 1, 1982. 2. To describe the who1e DUI systan from the point of arrest to the driver record fi1e, both before and after AB 541 (reporting both successfu] participation in drinking driver programs and fai1ure, as we11 as the associated imposition or "staying" of the mandated 1icensing action for repeat DUI offenders). 3. To identify areas or sources of system inefficiency or modes of circum- vention of specified provisions, especia11y in the post-AB 541 system. 4. To deve1op a1ternate so1utions and associated recommendations. An interorganizationa] task force was formed to accomp1ish these objectives; it represented a1] major constituencies in the DUI countermeasure system: 1aw enforcement agencies; prosecutors; municipa], superior, and juveni1e courts; Drogram/service providers; state and county a1coho1 program adminis- trators; probation officers; and the Department of Motor Veh1c1es. Since major new DUI 1egis1ation (especia11y AB 541 and AB 7) became effective 1n January 1982 just as this task force became operationa1, it was necessary to describe and ana1yze the o1der system as we11 as the new. The main caveat resu1ting from the experience of this task force is: "There is no such thing as ghg DUI countermeasure system. since 1t differs across both time and space." The official system changes over time as new 1aws are passed and become effective. But even within any given set of 1aws at any given time, the differences 1n DUI processing throughout the state are such that no sing1e, comprehensive description is possib1e which wi11 accurate1y portray the actua] nuances of processing in every 1oca11ty. Thus, the resu1tant f10w charts and narrative descriptions 1n this report can on1y represent an approximation of the operational system for DUI processing before 1982 and after January 1, 1982. The resu1tant f1ow charts are shown 1n Figures 1 and 2, and additiona1 process f1ow ana1yses are presented in the fina] chapter of this report. p1! -~rn --.-: remum . flmnfimm . y .v . u "- -. . .- r. - ..- ... .. mflm-m . v . u-w w-J-I-W-vnu‘ mm --n m-«hm-uu .m- . J m vu r. m vsu vet cu um. "0_ um own: $1" I _ _ _ " ‘fim mm _ mm" II 1:: m nu m .m . nu M mum; 95% m u. o Ionnr%u1 m 1n N In § - caflfim 'H Nonnunou lam" I gwg' § Mn. mancomm mnlfliné Mama g Mormon ou summonAcunm E alconp u: m pouc:Monm-~ 0.3%. "W m" “9.4% No N0 m1 m? urr 5 Eu mam mom mE-Tnm. mom DIVEMIDN m Mm -- - moan»: figjwm‘JV Manamm commune: m,“ 1 NJ LICEDTO MED CANON manumuan m:- rnE-mm. "'“fl‘flm” ummcz commune: amsmma DIVEIIIMNPROM FIGURE 1. PRE-AB 541 DUI SYSTEM FLOW LTI mu" _® IDMING olflbflllL "MW mu“ . o“-- n - ng _ 53}? umoov mmmu "3% oul“'mc' um"um° Wn'nmnwu ”3:549 IBMmnanam u. ”‘7" pmqmmumadam un mmucma ucmu n VlmlmAwu I '0' comau arr um "I Imam AL1m: g,- m ---. .._._._.‘ 4......"- .. . .. l... ..p.--.' o . .w. - pum- u . II”W DRINKING mm INGDM NOT REPORTE ANDIOH IIOT mam mu] 1 .- FIGURE 2. POST-AB 541 DUI SYSTEM FLOW No _ _ vss n . aims»? mmokmanna? No v2: clvmm cowum-r Manrlcmou nFsoonuIEar lupuzu . __ commnupuzocouum ‘usnwou Hunmn nunma . “8.8:?““3 7531' voucz Imam. ouanvmou "o sauna Tear am 222." ._ 1' no m1- rsumv ruouv mum». mom fluILfi "oiPNEUMINMV fl MMIuNMENT -' commence mm. aHunma 1:9 l t I ves ouv . PflE-SEN'ENCE _ nzcoan |- samsuc:. nenucso'ro M'snmsmo" “a SCREENING c"ECK 1 I | l I cumu: t nsnucsn onv mulasso val ulsumuuon manllfl on L'n'an-m conrmeuce rm!“ mil ”a jar NourFIIl-Anon nusvsfisiou 0N flET-ASIDE BOOKING FOR DUI DIN BAIL CUS‘IODY Pal ' nan HICORD CHECK moezcu‘ron an ”' V33 nswew F Aline?! sum 'rn HIV “WNH- vac N0 Ifl'l‘ LICENSE WITHDRAWN FINBT-OFFENDIR PROGRAM eunouuam I awn __ “Earner" WSW? mncmmu Llama'°'"D“ wmmmwnAnamacr sam- __ “Em. 7° ”W awgnfim l. immune:f Iupoun ENROLLMENT m EgTAYInNI FR RAM PARTICIPATION COUnT-IMFDSED RBBT‘NWION 'O" CODED ABIYMCT SEN? YO WVf ___. .. _ _ _._\__._ ....._-,...._._».u--_._ VEB w .££th N0 GONV;CTED N0 m FELDNV PRELIMINARY MRAIONMENT “G \G) COURT NOTIFIED O 3U CE Fm. COMRLE‘TION COUNT NOTIFIED OF ELIMII COIM‘I‘I ADDITIONAL SANCHONQ W VOLUME 2: THE LONG-TERM TRAFFIC SAFETY IMPACT OF A PILOT ALCOHOL ABUSE TREATMENT AS AN ALTERNATIVE TO LICENSE SUSPENSION In 1975, new 1egis1ation (SB 330, Gregorio) permitted motorists arrested for a repeat DUI offense t0 participate 1n a 12-month pi1ot treatment program 1n 1ieu of the usua1 1icense action (12-month suspension or 3-year revocation). In an ear1ier study, the first-year effectiveness of the pi1ot SB 330 programs versus 1icense actions was assessed (Hagen, Williams, McConne11, & F1eming, 1978). This study was a rep1icat10n, using the same subjects and a 1onger (four-year) fo11ow-up period. The eva1uation design involved four demonstration counties and four compari- son counties. In the demonstration counties, 2,534- repeat DUI offenders entered SB 330 programs, and thus avoided mandatory 1icense actions. The remaining 2,420 offenders 1n the demonstration counties received 1icense actions. In the comparison counties, 2,866 repeat DUI offenders a11 received Ticense actions. Using se1ected traffic accident and conviction variab1es, the subsequent 4-year driving records of drivers 1n each of the three groups mentioned above were compared to assess the re1atiVe impact of a1coho1 rehabi1itation and 1icense action on traffic safety. In tenns of nona1coho1-re1ated accidents and convictions, the recipients of 1icense actions did far better than participants 1n SB 330 programs; the rates for the SB 330 participants were about 70% higher than for the 1icense-action recipients. The major cause of this difference appears to be reduced driving exposure and more cautious driving on the part of the 1icense-action recipients during the peribd of their suspension or revocation. Among the 1icense-action recipients, those who received 3-year revocations had fewer subsequent nona1coho1-re1ated accidents and convictions than those who received 12-month suspensions. This was eSpecia11y true among subjects under 36 years 01d. The 1ower rates for the revoked drivers were expected s1nce the nonrecidivating subjects who had received suSpensions were e1igib1e for 1icense reinstatement 12 months after their DUI conviction. However, a1though their rates showed some e1evation, the recipients of 12-month suspensions continued to have fewer nona1coho1-re1ated accidents and convictions than the SB 330 participants beyond the period of su5pension. This result appears to be attributab1e to a 10w rate of 1icense reinstatement (50%) among the e1igib1e subjects with 12-month su5pensions. About four out of five of the e1igib1e subjects who were not reinstated did not execute the proof of insurance requirement for 1icense reinstatment at any time during the three years F011owing the tennination of their suspension. Among those who were reinstated, about 3 fl did not have their driving privi1ege restored for 6 months after the end of their suspension, and 26% had not been reinstated within 12 months. Thus, for many of the recipients of 1icense suspensions, the incentive for reduced driving exposure and more cautious driving continued we11 beyond the initia1 period of suspension. A different pattern of resu1ts was obtained for a1coho1-re1ated accidents and convictions. The SB 330 participants were found to have 9% fewer a1coh01- re1ated convictions than the 1icense-action recipients. A1though sma11, this difference was 1arge enough to consider it unlike1y to have occurred by chance. However, pretreatment differences on accidents and convictions sug- gested that the license action recipients had a greater risk of recidiVating at the outset. A1though some of this bias was contro11ed statistica11y, 1t is un1ike1y that a1] of it was contro11ed. Thus, a part of the difference on a1coh01-re1ated convictions might be attributab1e not to a positive effect 0f SB 330 participation re1ative to 11cense action, but to pretreatment biases instead. No significant differences were found between SB 330 participants- and iicense-action recipients on a1coho1-re1ated accidents. Thus,-the resu1£s of the ana1yses of a1coho1-re1ated accidents and convictions, as a who1e, sug- gest that a1coho1 rehabi1itation and 1icense action had essent1a11y the same impact on these traffic safety measures. However, neither approach appears to have had a substantia1 impact on subsequent DUI invo1vement because over 40% of both the SB 330 participants and the nonparticipants received at 1east one subsequent conviction for an a1coho1-re1ated traffic vio1ation during the 4-year fo11ow-up period. This finding of a high recidivism rate among repeat DUI offenders is consistent with findings from ear1ier studies (Hagen, 1977; Hagen, McConne11, & Wi11iams, 198D). As for tota1 accidents (1.e., combined a1coho1- and nona1c0h01~re1ated accidents), the SB 330 participants were found to have a significant1y higher (30%) 4-year rate than the 1icense-action recipients. Thus, 1n tenms of overa11 traffic safety impact, 1icense action was a more effective counter- measure than its a1ternat1ve, a1coho1 rehabi1itation. The DUI offender represents a greater than average traffic safety risk because of his or her invo1vement in a1coho1-re1ated accidents. A1though neither 1icense action nor a1coho1 rehabi1itation appear to have much impact on DUI recidivism, 1icense action countermeasures provide some degree of canpensation for this greater risk 1n the form of reductions in nona1coho1- re1ated accidents and convictions. A1coho1 rehabilitation in 1ieu of 1icense action has no such compensatory benefits. The findings of this study suggest that the origina] SB 330 sentencing strategy, which waived 1icense action as an incentive to participation in an a1coho1 rehab11itation program, had a negative impact on traffic safety. The hoped-for reductions in a1coho1-re1ated accidents among SB 330 program parti- cipants did not occur. These findings indicate that sdme other a1ternative besides 1icense-action waivers shou1d be used as an inducement for repeat DUI offenders to participate in treatment. A1though the SB 330 concept was imp1emented statewide through SB 38 (Gregorio, 1977), some of its weaknesses were corrected through subsequent 1egis1ation (AB 541, Moorhead, 1981) which 1im1ted participation in Wieu of 11cense action t0 second offenders on1y. The current sentencing strategy in California a1so requires that SB 38 participants have their driving priv11ege restricted (AB 541). This Wicense-restriction approach has been eva1uated by the Department of Motor Veh1c1es, and the findings are presented here. Fina11y, 1egis1ation enacted 1n 1982 (SB 1601, Sieroty) requires that SB 38 participants conform to the state's proof of insurance requirement in order to have their 11cense restrictions 1ifted after comp1etion of the program. The major resu1ts pertaining to subsequent accident comparisons and DUI recidivism are shown in Figures 3 and 4. UJ-IZF'IU-OO> m>m< ~P Z>ITIZ MZO’fiO-m§ 10 SB 330 Participants fl Demonstration County Licenae-aclionP E E Match CountyLicenae-actmn 1 O 0 D R l V E R S Total Alcohol Nonalcohol Late-night Fatal/lnjury ACCIDENT CATEGORY Figure 3. FourH ear accident rates for the three study groups by ca egory' of accident. 0.25 «- 0.2 -- 0.1 5 ‘ - 0.1 -- --o- Participants 0.05 -- “'5“ Nonpar‘ticipunts O i 1 1 i 1st 2nd 3rd 4th YEAR Figure 4. Two-point convictions for participants. nonpurticiponts, and match counties by foliow-up year. 11 VOLUME 3: AN EVALUATION OF THE SPECIFIC DETERRENT EFFECTS 0F ALTERNATIVE SANCTIONS FOR FIRST AND REPEAT DUI OFFENDERS Effective January 1, 1982, Ca11fornia 1mp1emented stricter drunk driving 1aws (AB 541, AB 7) which made it i11ega1 (per se) to drive with a b1ood a1coho1 (BAC) of .10% or higher, and estab1ished more stringent addition to participation 1n concentration sanctions such as 1icense restriction 1n a1coho1-re1ated programs and a mandatory 2-day jai1 term for repeat offenders. Like the prior 1aws, 1icense suspensions were imposed upon second offenders who were not referred to programs and upon first offenders who did not receiVe probation. This study eVa1uated both the effectiveness of the AB 541 sanctions upon the subsequent driving records of 1arge statewide samp1es of first and second DUI offenders (Study' A) and the overa11 impact of AB 541 on the subsequent driving records of DUI drivers convicted before and after AB 541 (Study B). Six-month and 1-year posttreatment driving records Were compared among second offenders who received either (1) 1-year 1icense suspension, or (2) 1:year 1icense restriction p1us SB 38 program referra]. Similar‘ driving records were compared for first offenders who received (1) 6~month 1icense suspension, (2) jail and fine on1y, (3) program on1y, (4) 90-day 1icense restriction on1y, or (5) 90-day 1icense restriction p1us program. SB 38 programs for second offenders were one year in 1ength, while the 1ength of the much briefer first-offender programs varied substantia11y. Findings frqn the second offender ana1ysis (N = 7,797) revea1ed that the suspended group had significant1y 1ower rates compared to the restricted SB 38 grOUp on three posttreatment (1-year) accident measures (nona1coho1, fata1/injury and tota1 accidents). The restricted SB 38 group had 91% more nona1coho1 accidents, 39% more fata1/injury accidents, and 35% more tota] accidents than the su5pended group. Resu1ts from the regional ana1ysis indicated that the same significant grOUp differences on a11 three accident measures were present in three regions, but not 1n Los Ange1es (LA) county. 25 12 For a1coho1 (HBD) accidents, the rates between the two groups did not differ significant1y, a1though the rate for the restricted program group was 20% 1ower than that of the suspended group. A difference of this size or 1arger wou1d be expected by chance about 13% of the time. The two groups did not differ significant1y on 1ate-night accidents, but the direction of the difference was Opposite to that for HBD accidents, with the suspended subjects having 16% fewer incidents. Since Wate-night accidents frequent1y invo1ve a1coho1 and are often used as an a1coho1-surrOgate Ineasure, this 1atter finding strong1y suggests that the SB 38/restriction sanction was not any more effective than 1icense suspension in reducing a1coho1-re1ated accidents. The re1ationship between type of sanction and subsequent minor traffic conviction frequencies was moderated by the offender's prior rate of minor convictions. Those suSpended drivers with 2 or more prior convictions had significant1y fewer subsequent convictions than their‘ SB 3B counterparts. However, there were no differences on subsequent conviction frequency between the suspension and SB 38 groups among those with zero prior moving vio1ation convictions. Quite different resu1ts were found for subsequent major or 2-point convictions (inc1uding DUI). The restricted program group had a 24% 1ower rate than that of the suspended group, and this difference was highly significant statistica11y (P = .002). In genera1, the resu1ts were very similar to those obtained by Sad1er and Perrine (1984) using just four p110t counties. Both studies, for examp1e, found that license suspension reduced the accident risk of the offenders to a 1eve1 that was c1ose to that of the average driver. In contrast, the restricted SB 38 group had an accident rate much higher than that of the average driver. The first offender ana1yses (N = 29,097) indicated that first offenders who were given stronger Wicense contro1 sanctions (6-month 1icense su5pension, or 90-day 1icense restriction p1us program) incurred accident and conviction rates that were 1ower than those of offenders given lesser pena1ties. The restricted program group had the 1owest and second to the 1owest rates for ZLI 13 6-month a1coho1 and tota] accidents, whi1e the suspended group had the 1owest tota] accident rate but the highest a1coho1 accident rate. An ana1ysis of the differences by region indicated that the higher a1coho1 accident rate of the suspended group occurred on1y in LA County. On Inyear nona1coho1 accidents, the suspended group evidenced the 1owest rate, and this finding was consistent across different 1eve1s of prior minor convictions and different regions. The suspended and restricted program groups evidenced the 1owest, or second to the 1owest, rates for 6-month and 1-year minor and tota1 convictions. A1though the re1ative effectiveness of the two sanctions varied as a function of prior minor convictions, age, and ZIP code accident averages, the restricted program group had the lowest subsequent minor and tota] conviction rates for a11 categories of these variab1es combined. The restricted program group had the 1owest rate for major convictions, with a rate that was 11.6% Wower than that of the su3pended group (adjusted scores). However, those who received on1y a 1icense restriction (no program) had 10.2% fewer major vio1ations. It is therefore difficu1t to attribute the 1ower DUI rate primari1y to the impact of the a1coho1 program. In comparing first offenders with repeat offenders, it was found that the 1atter had Wower subsequent accident rates but s1ight1y higher major violation rates. The higher major vio1ation rate probab1y reflects a higher proportion of prob1em drinkers among second offenders. The 1ower accident rate for second offenders mfight be attributab1e to their more intensive treatment and 1onger suspension (or restriction) period. Findings from Study B indicated that AB 541 resu1ted in significant1y 1ower a1coho1 accident, tota1 accident and major conviction rates among DUI drivers in 1982 than in 1980-81. These 1ower rates were present despite higher DUI conviction rates in 1982/1983. The present study was Iimited to evaluating on1y 1-year short-term effects; a 1ong-range eva1uati0n wou1d be critica1 in detennining 1f additiona1 1ega1 changes were needed to maintain the positive traffic safety benefits achieved by AB 541. The fo11owing recommendations were presented for consideration: (1) Seek 1egis1ation to adopt administrative 1icense SUSpension ("administrative per Zf 14 se") upon arrest for DUI, (2) If administrative per se is not adopted, consider suspending aH repeat offenders or suspend with a provision that the suspension period wou1d be shortened upon completion of a specified period of participation in an a1coho1 rehabih’tation program (e.g., 6 months), (3) If administrative per se 1's not adopted, seek 1egis1ation requiring that a1] first offenders receive a short-term Hcense su5pens1'0'n (30-90 days) and, in addition, be required to comp1ete' an approved a1coho1 education/treatment program, arid (4) Seek methods 0f increasing the rate of detection and arrest of drunk drivers. Figures 5 - 9 present a summary of the major driving record resu1ts. 12" Q P 10-- M E X 9 R ‘. a-------c ------- I o 1 8'“ x R 0 ‘~ 0 \ C Ia u O D 6 X N R \ Y {I 3k c E 4” 'Il' g #1- Suspension g 2-- 'l- Restriction dc Program S 0 I i Males Females GENDER Figure 5. Adjusted major convictions for suspended ond restricted second offenders by gender. Zto mHsz-oo> r>aoa z>mg 15 M 5" E A P N E . _______________- T 4" 0 1 X O 0 L 3-- -------------------- * D * A R 2 'v ‘ I E 2-- D R E S N *F Suspenflon T 1" S I- Restriction d: Program O J. i 1st 6-mo. 2nd 6-mo. 6-MONTH TIME PERIOD Figure 6. Adjusted total accidents for suspended 9nd restricted second offenders by 6-month. time periods. 5“ P E 5-- R 1 0 4.- "it" 1-Suspension O -)b 2-F‘me 8c Jail Only D R 3" | -0-- 3-«Progrum ac Jail V E 2" -D- 4-Reatriction Only S --G-‘ 5-R'eatriction 8c Program1“ O : : 1st 6-mo. 2nd 6-mo. S-MONTH TIME PERIOD Figure 7. Adjusted total accidents for five first offender groups by two Emmonth time periods. 7/7 o. 16 10.91 Fine & Jail Only Program dc Jail Restriction Restriction 8:Suspension 12-- 10-- a P E R 1 0 0 D R I V E R S A D J U S T E D M A J O R C O N V I C T I O N S Pragrum GROUP Figure 8. Adjusted major convictions by five first offender groups. 0.099 1“ 8 6 0 O. O O O S U B S E Q U E N T A C C O 02 O O D E N T O D D S ThirdSecond OFFENDER STATUS (# of DUI Offenses) First before and after AB 541rung (Evaluated 1 year subsequent to entry ent accident occur utus. ill DUI offender aby convlotion date.) Odds of u subseFigure Qa. 17 0.1 1980-81 E 1982 QM 0.06 004 0.02 mooo Hzmo-oo> fizmcommmcm Flrst Second Third OFFENDER STATUS (# of DUI Offenses) F‘Igure 9b. Odds of a subaequent alcohol accident occurring before and after AB 54-1 by DUI offender status. (Evaluated 1 year subsequant to entry conviction date.) 0.2 1980-81 E 1982 0.16 0.12 0.08 0.04 UJUUO “lZF'IU'-OO> HZWCDITHDWCU) First Second Third OFFENDER STATUS (# of DUI Offenses) Figure 90. Odds of a sub uent ma‘nr conviction occurring before and after AB 54-1 by DUI o fender s utus. (Evaluated 1 year subsequent to entry conviction data.) $3 18 VOLUME.4: AN EVALUATION 0F THE PROCESS EFFICIENCY AND TRAFFIC SAFETY IMPACT OF THE CALIFORNIA IMPLIED CONSENT PROGRAM The Ca1ifornia implied consent (1C) 1aw requires that a motorist who has been arrested for driving under the inf1uence of a1coho] or drugs submit to a chemica] test (b1ood, breath, or urine) to determine the a1coho1 or drug content of his 0r her b1ood. A test refusa1 resu1ts in the automatic 1oss of a1] driving privi1eges for a period of six months to three years, with the 1ength of the 1icense action dependent on how many convictions for DUI or a1coho1-re1ated reck1ess driving vio1ations the refuser has had prior t6 the arrest. Due process of 1aw is provided through administratiVe hearings. This study Was designed to describe the Ca1iforn1a IC system and to answer a number of questions re1ated to the program's operationa] efficiency and effectiveness, the characteristics of its target popu1ation, and its impact on traffic safety. A narrative and f1ow chart were deve1oped describing the major components and decision points of the IC system. Time 1ag and frequency data were obtained from documents 1n the case fi1es for a samp1e of 4,464 motorists who refused a test in 1981 or 1982. The driving records for these refusers Were a1so obtained, and the accident and conviction data were used to determine: (1) whether a conviction was obtained for the re1ated DUI charge, (2) traffic safety rfisk 1eve1s, and (3) the traffic safety impact of the IC 1icense suspension. The driving records for a sma11 samp1e of refusers whose su5pensions were reinstated in October 1984 after being uphe1d in an administrative hearing (n = 392) were used to determine the effects on time 1ags of changes in the IC system subsequent to 1982. The DMV received 31,978 chemical test refusa] reports frmn 1aw enforcement agencies in 1982. Ninety-eight percent (31,285) of these reports resu1ted in 1icense suspensions. Approximate1y 31% (9,672) of those suspended requested hearings. On the average, one out of every two hearings was reschedu1ed. About 27% of those who requested hearings either‘ fai1ed to appear at or cance11ed their hearings. About 92% of a1] hearings resu1ted in suspensions being Uphe1d. 30 19 During 1981 to 1982, the time Wag from refusa1 to the mai1ing of a suspension order was 27.9 days for refusers who did not request hearings and 29.6 days for refusers who requested hearings. However, in October 1984, this time lag had drOpped to 19.9 days (for those requesting hearings). The time 1ag from refusa1 to the mai1ing of a suspension-reinstatement order was 139.9 days and 122.5 days for the 1981~82 and October 1984 periods respective1y. The differences in time lags between 1981-82 and October 1984 appear to be too 1arge to be expWained by seasona] variation, and are probab1y attributab1e to changes in the processing of refusal reports, the decentra1ization of the hearing review process, and fie1d updating of IC actions fo11owing hearings. A1though it has been shortened since 1982, the time 1ag from refusa1 to suspension might be reduced further. In the hearing process, a significant source of de1ay was the high rate of hearing reschedu1ings. 0n the average, one out of every two hearings was reschedu1ed (three out of four when subjects were represented by counse1). Another source of de1ay in the hearing process was the preparation of hearing reports and mai1ing them to the DMV headquarters, which took more than five weeks for 50% of the cases. The activities invo1ved 1n schedu11ng, reporting, and reviewing hearings shou1d be examined in detai] to identify ways to shorten the time 1ag. In 1982, about 60.6% of refusers were convicted of the re1ated DUI charge, compared to a 66.1% conviction rate for a1] DUI arrestees. If the drinking driver popu1ation were aware that refusing a test does not substant1a11y increase the probabi1ity of avoiding a DUI conviction, and that receiving an IC suspension is virtua11y a certainty, fewer refusals might resu1t. The proportion of repeat offenders was much (about 55%) higher for refusers than for nonrefusers. Despite this and other between-group differences, the net tota1 accident risk of refusers and nonrefusers over a 30-month period (combining the 18 months prior and the 12 months subsequent to the beginning of their sanctions) differed by 1ess than 1%. In the subsequent 12 months, both refusers and nonrefusers were found to have higher risks of accident inVO1vement than the genera] driving popu1ation. The resu1ts from an ana1ysis of the traffic safety impact of the IC suspension demonstrated that suspending refusers is an effective counter- 3K 20 measure for this subgroup 0f the DUI popu1at10n. During the 6-month suspension period, refusers whose suspensions were reinstated after an administrative hearing had significant1y fewer a1coho1-re1ated accidents (63.7%), nona1coho1-re1ated accidents (76.5%), and tota] accidents (72. %) than did refusers whose suspensions were set aside. Given the high costs and Wengthy time 1ags associated with the IC hearing process, the Department shou1d exp1ore a1ternatives to 1ower costs and shorten time 1ags without sacrificing the traffic safety benefits a1ready achieved by the current system. One way to reduce the costs of the IC program wou1d be to discourage hearing requests from those who are Iikely to canoe] or fai] to appear. A filing fee (refundable if the subject is uphe1d) might discourage many of the less reso1ute hearing requestors. One promising approach for reducing both time 1ag and costs is ear1y administrative per se suspension accompanied by postsuspension administrative reviews. Law enforcement officers cou1d seize the driver 1icense of a refuser and issue a form serving both as temporary 1icense (good for, say, 7 days) and a suspension notice. Refusers wou1d be suspended ear1ier, and there w0u1d be fewer hearing requests because the suspensfion wou1d remain in effect pending the outcone of the hearing, which wou1d discourage di1atory hearing requests. This approach has been successfu11y used 1n Minnesota for severa] years, both for those who refuse tests and those who fai] them (by having blood a1coho1 concentrations of .10% or higher). Motivated to a 1arge extent by the ear1y suspension criterion for qualifying for the Federal A1coho1 IncentiVe Grant Program, 17 states have adepted 1aws simi1af to Minnesota‘s. Resu1ts summarizing se1ected comparisons between suspended and nonsuspended offenders are summarized 1n Figures 10 and 11. jgiL ‘1. 1-. 21 0.08- M E N 0.06»- T 1‘? _,.. ’3 0.04--- l. _____________ . A c 4 C r' t g 0.02-- I" +Suspen'sion set aside N T -l-- Suspension reinstated S 0 l l i 1st 2nd 3rd S-MONfliPEMOD Figure 10. Toto! accidents for suspension-reinstoted ond_suspension- set-aside subjects by 6-month follow-up period. 0.08-r M E A N T -_ w 0.06 o F P N -- T 0.04- c o N V lc 0'02 "' +Suspension set aside T '0 --I-- Suspension reinstated N s 0 i l I 1st 2nd 3rd 6-MONW4PEWOD Figure 11. Two-point convictions for suspension-reinstated and suspension-aet-aside subjects by 6-month follow-up period. 22 VOLUME 5: THE CALIFORNIA DUI COUNTERMEASURE SYSTEM: AN EVALUATION OF SYSTEM PROCESSING AND DEFICIENCIES Among the major objectives of this study were the identification of defic- iencies in the Ca1ifornia DUI countermeasure system and an empirica] eva1uation of the frequency with which DUI offenders avoid time1y processing or circumvent system countermeasures due to these deficiencies. The methodo1ogy prOposed to achieve these objectives, that of tracking a samp1e of DUI offenders through the DUI system, U150 embodied the genera] objective of the study: to empirica11y describe and ana1yze the f1ow of DUI offenders through the Ca1ifornia DUI countermeasure system. A tota1 of 3,959 DUI offenders arrested by 44 1aw enforcement agencies 1n 7 samp1e counties were tracked through the DUI system from the point of arrest through postconviction countermeasures. A separate samp1e of 701 convicted DUI offenders referred to a1coho1 education/treatment programs 1n the 7 samp1e counties was identified from program provider records and tracked through Department of Motor Vehic1es, court, and program records. Among the resuIts of the empirical ana1ysis of DUI offender f1ow through the DUI countermeasure system were the fo11owing: o There was wide variation in the probabi11ty of conviction for‘ a DUI offender depending upon the county and court in which the offense was adjudicated; the use of sanctions a1so varied wide1y by county and court. o The majority of a1coho1 education/treatment program dropouts were not reported t0 the DMV by the courts, and a substantial prOportion 0F DUI offenders avoided 11cense suspension as a result. o 9% of drivers arrested for DUI were under 1icense su5pension or revocation at the time of arrest; on1y 20% of these drivers were convicted for the offense of driving whi1e suspended or revoked. o A surprisingWy 1arge proportion of DUI offenders were un1icensed (13%) or had mu1tip1e driver records (2.5%). 3L! 23 o The average e1apsed time between DUI arrest and DMV action exceeded 6 months. Over 90% of this time was attributab1e to court processing and reporting. o The statewide DUI conviction rates in 1981 and 1982 were, reSpective1y, 60 and 66%. Inc1usion of reck1ess conviction p1eas 1n these figures increased the reSpective rates to 71 and 76%. o The increase in conviction rate between 1981 (pre-AB 541) and 1982 (post- AB 541) occurred on1y among first offenders. The conviction rate for second offenders actua11y decreased. o 17% of the reck1ess driving convictions resulting from a 1982 DUI arrest were incorrect1y reported as regu1ar (nona1coho1) reck1ess offenses and cou1d therefore not be used as "priors" for license action purposes. o SWightly fewer than 20% of the DUI offenses 1nvo1ving an injury or fata1ity resu1ted in fe1ony arrests and 0n1y 20% of the fe10ny arrests resu1ted in a fe1ony DUI conviction. Based on study findings it was conc1uded that: (1) the probab11ity of punishment for DUI offenses must be increased in order to produce any 1arge sca1e impact on the prob1em of drinking and driving, (2) the citation and conviction rates of those who drive whi1e suspended or revoked must be improved in order for license suspension to remain an effective and credib1e traffic safety countermeasure, (3) in order for the DUI countermeasure system to function as a true system, goaIS and objectives must be deveIOped a1ong with a management information system to assess the achievement of those goa1s and objectives, and (4) improvement is needed in the accuracy of records 1n the DUI countermeasure system. According1y, the fo11owing recommendations for system improvements were offered: (1) 1egislation should be enacted to require administrative per se 1icense suspension upon arrest for DUI and for any conviction of DUI, (2) efforts shou1d be undertaken to improve the prosecution and conviction of drivers known to vio1ate the suspension/revoca- tion order, (3) a coordinating committee or centra1ized agency shou1d be estab1ished to set the goa1s and objectives of the DUI countermeasure system, 3) 24 and a management information system deve10ped to continuous1y assess the achievement of those goa1s and objectives, and (4) the DMV shou1d estab1ish criteria fbr matching accident reports and court abstracts to driver records which maximize the probabi1ity of matching entries to existing driver records without significant1y increasing the number of incorrect matches. Figure 12 describes the vo1ume f10ws and conditionaW probabilities through various branches and paths of the DUI centre] system. 37 fl e a B EB a. Q u . . g Ha... mnrc N E : fi E g 5 5 2: 8 5. 5 8 3 u E s. s. I g l E q Sh S E. s 5 5 a u s- . E E I 3. 3 . 3 s. H a S E E! H 5 6. 5 8 5. 3 3. 5 3 5 2. x l. . _ z. n... 8 5 :: . g l a g Q E fl Earl . E EK . s. G. .- on. E: q . 5. 3L 3- . E 3 r.. _ 1 . u l l h u E .4 E 9. . n- I I E. e. . 3 8. ; E E-fifl 1 ‘ .n B i l. a. r3 .- . Eu E g . E B N E E! “EH n. 5, 3 . 5 8 5 5 Eh ! a. 2 . 5 3. 5. 9. B E B E g a in s no a fl E N A l n. a n. l u g Ema 5-. 9 £ 3 g g un I E . m e a n. .5 fl a c. fl 3 5 2 B aa 5 En i w in s. a . S E H fi 3. 3 3: 2 Ew e 9 . 3 3 : “. R u: a ._ _. u . E . . 5.5 8. R E l ! I z . E d na.. A . Hau s a E E E- _ I H E... o- g a ” B EBE: E s s ea l 3. B E E g a n n a g E E H N R. I S E E S E N _ E u s- ufiflnn . n fl an S B U E B a g s : n . Hulk E E E B fl- E fl. ‘ n : l . _ . =. 5 . . 3. n. _ n 0 5 fl. n an I. £ 8 5 3.. . u . a. .w . E: .q 5 5 8 a h 9 5 5 9. O S E E S . h B E E Ba b 2: 2 : a . E u. 5: . . 5. . 5 3 8 z . z. ac fl F. E «W B_ E BJM . o- huu-W U Su fi 5 E . _ a E . Bu u= 0 E H- Sufi.- E E: S 5. 2 E. I S E E S «: 5, a. I n. H . I x n fl E S S B u s ha g. E i g n u fin fi. m uaa aum u m v uua H an Nmma hmma u fi . n ow m u fi m fi flm 3 0 E Ha n o flu om o uw . NH « M E X g a g E 26 VOLUME 6: AN EVALUATION 0F THE IMPACT 0F A WARNING LETTER FOR FIRST TIME DUI OFFENDERSH The Ca1ifbrnia driver improvement system has historica11y used a warning 1etter (N/L) as the first intervention for persons with unsafe driving records. This study was designed to eva1uate the effect of warning 1etters and pamph1ets on sabsequent accident and conviction rates for first-DUI offenders.. The study assessed the effect of two different factors: type of warning letter and frequency of contact. Two warning 1etters were used; the first was a "standard" warning 1etter intended for use in future DMV negligent operator programs, and the second was an experimenta] "persona1ized" warning 1etter which described the potentia1 consequences of driving whi1e intoxicated and which out11ned a1ternatives to unsafe drinking-and-driving practices. Methods The subject samp1e was composed of 41,914 CaIifornia drivers who had been convicted of a "first“ DUI offense. Consistent with present 1aw, a DUI conviction was considered a "first" offense if no other DUI offenses (1eading to conviction) had occurred within the 5 years preceding the current ‘vio1ation date. Furthermore, on1y first-DUI offenders who possessed a va1id Ca1ifornia driver's 1iCEnse and who were over the age of 21 were e1iqib1e for this study. To assess the effect of type of Warning 1etter, drivers were assigned either to a control group or to one of two warning 1etter treatment groups which received either the "standard" warning 1etter or the experimenta1 warning Ietter. To assess the effect of frequency of contact, a third treatment group was designated to receive two mai1ings of the experimenta] warning 1etter, with only minor variations in the contentvof the first and second letters. It was intended to random1y assign first-DUI offenders to the contro1 and treatment conditions throughout the duration of the subject se1ection process. Unfortunate1y, computer program modifications required for persons assigned to receive the experimenta] warning 1etter were not comp1eted unti1 38 27 eight weeks after the start of the warning 1etter program. Due to this constraint, some assignments had to be nested with respect to time. This confounded the design for assessing the effect of type of warning letter, making it impossib1e to test for the interaction between time period and treatment effects. Criterion Measures The factors of frequancy of contact and type of warning letter'were measured by their effect on five accident and conviction criterion measures c011ected from the subsequent 12-month driver record (i.e., major convictions, tota] convictions, a1coho1-re1ated accidents, tota1 accidents, and number of days t0 first major conviction). Bias ana1yses were conducted to identify re1evant predictor variab1es on which the treatment groups differed significantWy. There a1so existed variabi1ity in the criterion-measures due to characteristics (1.e., covariates) not significant1y reIated to treatment group assignment which cou1d serVe to decrease the abi1ity to detect 1egitimate treatment effects. Covariance analysis was used to statistica11y adjust for the effects of such variab1es. Resu1ts . Separate analyses were performed for the frequency-effect groups and "type of warning 1etter"-effect groups. Stepwise regression ana1ysis was used to identify potentiaW covariates. Age showed a consistent negative re1ationship with a1] the dependent measures, indicative of the greater incidence of accidents and convictions among more youthfu1 drivers. Measures of prior accidents and convictions showed their expected positive re1ationsh1p with measures of subsequent (12-month) accidents and convictions. Subsequent convictions were significant1y related to gender, with greater incidence among ma1e driVers. Effects of Frequency of Mai11nq Separate tests of significance were performed for each of the dependent measures using the factors frequency of ma11ing and samp1ing time period. There were no significant effects of freqmency of mai1ing (one experimenta] N/L vs. two experimenta] W/Ls), with the exception of a significant increase ~ 2? 28 in tota1 accidents for persons who received two mai1ings of the experimenta] W/L. The expectation wou1d be that a second mai1ing of the W/L wou1d have either no effect or a s1ight positive effect. It is conjectured that this significant increase in tota1 accidents is probab1y not meaningfu1 and that there is, in generai, no difference betWeen one or two mai1ihgs of the experimenta1 warning Tetter. Effects of Type of Narninq Letter Tests of statistica] significance were performed on each of the dependent measures using the factors “type of warning Ietter" (contro1, 5%andard, 0r experimenta1) and samp1ing time period. without exception, there weré no treatment effects associated with type of W/L. FurthermOre, the direction of the nonsignificant mean differences was neither consistent nor suggestiVe of meaningfu] interpretation. In genera], the groups who receivéd a W/L, either standard or experimenta]; tended to have an increased ihcidence of a1coh01-re1ated accidents and (major) convictions and a deckeaéed incidence of total accidents and convictions re1ative to the contro] group. These directiOna1 differences are precise1y the opposite of those expected, based upon the hypothesized effect of W/Ls. Conc1usions Based on the resu1ts of these anaIyses, it was cofic1uded that warnfing 1etters are not an effective treatment for first-DUI offenders, as measured by subseqUent accident and conviction criteria, since néither the content (persona1ized or standard) nor the freqUehcy of warning 1etter mai1ings yie1ded significant differences. It is recomménded that none of the warning 1etters be imp1emented as countermeasures for use on the first-offense drunk driving popu1ation targeted in this study. Lfl) 29 VOLUME 8: DEVELOPMENT AND EVALUATION OF A RISK ASSESSMENT STRATEGY FOR MEDICALLY IMPAIRED DRIVERS The primary objectives of this project were the development and evaluation of a strategy for assessing the traffic safety risk of medica11y impaired drivers. The risk assessment strategy deve1oped for this project invo1ved consideration of an exp1icit set of objective and subjective risk factors in medica] condition cases, and was 1mp1emented through the use of a "probab1e risk check1ist." The probab1e risk check1ist was pi1ot tested on 3,722 medica] cases in one of four driver imprOVement regions in CaWifornia from February 22, 1982 through June 25, 1982. Ana1ysis of the pi1ot study data showed that: o The best predictor of departmenta] estimates of risk and 1icensing actions in medica] cases was the risk factor "lack of insight," which is a subjective measure of the Driver Safety Referee's (DSR) c11nica1 impression 0f the driver. This imp11es that current departmenta] eva1uations and actions with reSpect to medica11y impaired drivers are more a function of subjective, c1inica1 assessments {han they are of objective criteria known to be associated with risk (prior accidents, convictions, etc.). o Whi1e genera11y there appears to be an appropriate and rationa] re1ationship between prior driVer record, estimated risk, and 1icensing actions, this does not appear to be the case for drivers with a1coho1- related conditions. A1though drivers receiving a1coho1 probation had extremely high prior mean accidents and convictions, their estimated risk was judged to be on1y s1ight1y higher than average, whi1e their one-year subsequent driver records were the worst of any 1icensing action group. These data suggest that the DSRs are underestimating the risk of medica11y impaired drivers with a1coho1-re1ated conditions. o The reactions of DSRs to the probab1e risk check1fist were genera11y negative, although they do not appear to be opposed, in principle, to the concept of a systematic strategy for assessing the risk of medica11y impaired drivers. LH 3O The p1anned ana1yses on the impact of the probable risk check1ist on DSR 1icensing actions and the predictive va1id1ty of objective versus c1inica1 indices were not comp1eted because of funding 1imitations. Due to the critica1ity of these ana1yses for making departmenta] po1icy and procedura1 recommendations, it was recommended that the ana1yses be comp1eted through future grant funds or as ~part of the department's ongoing research and deve1opment program. The recommended additiona] ana1yses, 1f successfu], shou1d 1ead to imp1ementation of a more re11ab1e and va1id method of assessing traffic safety risk in medica1 condition cases. It was a1so recommended that, as an interim measure, steps should be taken to improve risk assessment of drivers with a1coho1-re1ated medica] conditians. Lp- 31 POLICY ANALYSIS AND RECOMMENDATIONS It is evident, from the preceding summaries and the numerous studies reviewed in the fu11 technical vo1umes, that Ca1ifornia's current DUI contra] system contains considerab1e room for improvement. In this section we wi11 discuss DUI contro1 in the context of modern deterrence theory and systems ana1ysis, fo11owed by a review of two recent nationa] policy studies on DUI contro1. Having estab1ished the necessary conceptua] foundation and po1icy perspective, we wi11 proceed to out1ine the parameters of an optimum, or at 1east improved, process for the contro1 of Ga1ifornia's DUI prob1em. Deterrence Theorx The extent to which 1aws and crimina] sanctions reduce the probabi1ity of (deter) deviant and un1awfu1 behavior is the central province of deterrence theory. Deterrence theorists distinguish between two major types of deterrence-«specific and genera]. The former refers to the effect of a 1aw or sanction po1icy on the subsequent behavior of those who are detected and sanctioned for a given offense. The effect of jai1 or fine on the recidivism rate of convicted drunk drivers is a c1assica1 examp1e of Specific deterrence. Genera] deterrence, on the other hand, refers to a law's impact in deterring the genera1 popu1ation from engaging in the undesirab1e behavior. In the case of DUI behavior, the effects of sobriety checkpoints, i11ega1 per se BAC laws and mandatory jai] sentences on a popu1ation's tendency to engage in that behavior are examp1es of genera] deterrence. These d1fferent-channe1s of effects are diagrammed in Figure 13. It is important to recognize that there may be 1itt1e re1ationship between the two types of effects. A 1aw may be very effective 1n deterring 1arge segments of the p0pu1ation from engaging in deviant behavior, but have no effect on the subsequent recidivism rate of those who are arrested and convicted of the offense. Converse1y, 1t is possible for a sanction to affect its recipients, but have no impact oh the 1arger popu1ation's propensity to engage in that behavior. There is considerab1e evidence and rationa1e to support the contention that emphasis on genera1 deterrence offers more potentia] than dOes specific #3 32 ZOHm ZMmHm N . _ m0 M me m0 ZOH B W MQM HW N bH BO Mh m Dm Q NM ¢ M M U ZH m mm mzm m mo Q M MM H ZD M h o M OH b E M M N B ZN D de me 20 HUM MN W U H hH UN mm ' I u I T I I I I I I I I ‘ I I I I I I I I I I I I ' I I I I ' I I I l l l a r- l a l oHumb m a l l l l l l l l l l l l lv. sz Ha¢noH > n an w szHmn qmwo s m m o a¢A O H > oa mm¢ m a . w2OHamanmom ;nwaum mm a mnwpw m m m a mum m a OH MHu m mm yzmzom zou waH onmp m 5 8 % mnHaozmm «M a mmmuo m n z onm uz nm .nmmm m m qu . z m m a uguu unm u navnmmu - AMHamma om mF m n nmfl m 4L9 33 deterrence. Genera] deterrence appIies to the entire population at risk for a given deviant behavior/sanction po1icy, whereas specific deterrence app1ies on1y to the deviant individua1s who are detected and sanctioned for the behavior. In the case of drunk driving, such individua1s represent on1y a veny sma11 proportion of the drinking/driving popu1ation and these "se1f- se1ected" individua1s tend to be resistant to modification. To be effective, both deterrence mechanisms are dependent on the presence of a sufficient subjective perception of detection which, in turn, is a partial function of the objective probabi1ity that a given incident of' impaired driving wi11 resu1t in arrest and punishment. Deterrence theorists have frequent1y emphasized that increasing the severity of punishment, in the absence of sufficient subjective probabi1ity of detection, has 1itt1e deterrent va1ue and may even have undesirabTe system consequences. Ca1iforn1a's adoption of a .10% per se BAC 1aw primari1y Operates to increase genera] deterrence, and there is evidence (Vo1ume 3) that it has had both genera] and specific deterrent effects. Perhaps the sinQTE most important po1icy recommendation to emerge from this study (Vo1umes 3 and 5) was for adoption of an administrative per se 1icénse suspension statute. The deterrence potentia] of such a statute stems from its mu1tip1e effects on a1] facets of deterrence - probabi1ity of detection, swiftness, probab11ity of receiving the appropriate sanction, reduced exposure, and increased severity. System Ana1ysis and Program Manaqement A1though most wou1d agree that deterrence (0f impaired driving) and traffic safety are the primary termina1 objectives of 1aws against impaired driving, there are constraints and subobjectives which must a1so be satisfied. A number of investigators have commented that the DUI contro] process is not rea11y a system since the invo1ved agencies operate re1ative1y independent1y and pursue, in some cases: conf1ict1ng objectives (Finkelstein & McGuire, 1971). A1though the existence of mu1tip1e objectives and constraints is a rea1ity that must be accepted, this shou1d not mi1itate against moving toward a more systems-oriented approach to DUI contra]. 4r 34 It may be informative. to consider‘ the forma1 requirements of any socia] contra] process if 1t is to function as a true “system.“ 1. The process must have some u1timate purpose and set of goa1s. 2. The actions of the operators must have some causa1 inf1uence 1n promoting progress toward the termina] goa1s. 3. There myst be accepted measures of "system performance" for gauging the system's effectiveness 1n achieving its centre] purpose and objectives. 4. The system managers must share a common set of assumptions and underlying axioms regarding the nature of the prob1ems, causes and methods of contra]. 5. There must be a management information system for providing feedback on the system's effectiveness 1n achieving its purpose and goa1s. 6. Where a mu1tip1icity of objectives and constraints exist, there must be some method of assigning priorities and allocating resources which contribute toward achieving the system's u1timate purpose. A rnacro-i11ustration of the interreIation of the functions of the major organizational entities invo1ved in drunk driver contro] is shown in Figure 14. To 111ustrate some of the attributes Iisted above, it is necessary to superimpose on this diagram a variety of management functions designed to execute, monitor and contra] the entire process. Tb the extent that pub1ic safety is accepted as the u1timate objective of DUI control, this management process can be viewed as a form of risk management. Figure 15 shows alvery simp1ified diagram of a risk management process for driver contro]. The existence of quantifiable measures of system performance and a management information system for providing "feedback" to various 1eve1s of managers and po1icy [nakers are crucial e1ements to any risk management process. The absence of a feedback system makes 1t impossib1e to monitor system performance, impossib1e to assure qua11ty contro], and difficult to imp1ement Lib ' 35 Figure l4 OBJECTIVE 0F CALIFORNIA ENFORCEMENT/DRIVER CONTROL PROCESS AS A SYSTEM DRIVING INFRMTION CALIFORNIA $ / ENFonchENT coupLEx\ CliP & LOCAL POLICE I DETECTlON x l / \ / TRAFHc Anwnlcmow $ COURTS a I {/ \ _____.___.--|h-- CONTROL OBEY Aws REMOVAL 0F UNSAFE DRIVERs DRI VER IMPROVEHENT REDUEED AEEIDENTS \/ L17 36 Figure 15 A RISK MANAGEMENT MODEL OF DRIVER CONTROL I “““““““““ E? DRIVER CONTROL SUPERSTRUCTURE (POLICE, COURTS a nMV) q; RISK _ ANALYSIS WP RISK _ ASSESSMENT : q7_ CDUNTERMEASURE _ DEVELOPMENT 1L RESOURCE ASSESSMENT & = ALLOCATION STRATEGIES rb MANAGEMENT INFORMATION - & = EVALUATION ' SYSTEM ESTABLISHMENI 0F RISK THRESHOLDS IDENTIFICATION 0F HIGH RTSK‘DRIVERS IDENTIFFCATION 0F EFFECTIVE TREATMENT AND SANCTFONS INCREASEDLSAFETY BENEFITS PER DOLLAR 0F EXPENDITURE ITERATIVE REFINEMENT AND MAXIMIZATIDN 0F SAFETY BENEFITS 37 the corrective actions and innovations required for improvement and coherent p1anning. As a first step toward promoting a "systems orientation" toward DUI contro1 in Ca1ifornia, this Department has received a grant from the Office of Traffic Safety (OTS) entit1ed Development of An Improved Management Contro1 System for DUI Drivers. It is be1ieved that 1mp1ementation of the system deve1oped from this grant wi11 do much to improve and maintain system performance and process quality within acceptab1e thresho1ds. It is important to recognize that the above grant W111 Focus on administrative and process measures, rather than on the system's effectiveness in reducing drunk driving and DUI-re1ated crashes. This 1atter object1Ve is the gubject of another‘ OTS grant entitWed DUI Data Base and Recidivism Trackinq System. Neither of these grants, however, W111 provide a basis for identifying the innovations and po1icy changes needed for achieving major reductions in drunk driving and DUI-re1ated crashes. Fortunate1y, there already exists a body of empirica] evidence and theory to provide the necessary po1icy guidance. Some of this evidence was provided in the previous sections of this monograph and 1n the detai1ed 11terature reviews presented in the technica1 reports for each study vo1ume. Additiona] support can be found in the recommendations of two recent nationa] p011cy monographs on drunk driving--one by the President's National Commission Against Drunk Driving and the other by the American Bar Assocfiation. The recommendations of these'studies are presented be1ow. Report of the Nationa] Commission Aqainst Drunk Driving Based on expert testimony and a review of the pertinent 1iterature, this presidentia1-appointed commission offered 19 "high priority" recommendations for combating the DUI prob1em. The resuIts of a survey of each state's status on the recommendations were presented in the Commission's 1986 progress report. A "scorecard" of the survey resu1ts reproduced from the Commission's report is shown in Tab1e 1. Ca1ifornia is shown as conforming to 13 of the 19 recommendations. It wou1d be more accurate, however, to reduce this number to 12, since it is known that suspended vioWators are frequent1y not prosecuted for driving with a suspended 1icense and, eVen when convicted, they frequently avoid the mandatory jai1 sentences authorized under Ca1ifornia statutes (Recommendation 16). Severe] of the areas of H‘f 0 5 T a b l e l N A T I O N A L C O M M I S S I O N A G A I N S T D R U N K D R I V I N G C h e c k l i s t o f S e l e c t e d D U I C o u n t e r m e a s u r e s N o v e m b e r 1 0 , 1 9 8 6 o M A S S A C H U S E I T Y a m : N . c n m u u n N . n M a T a ' P E N N s ' e r A N M P 1 1 5 8 1 0 n l c o R H D n E I S L A N D - S . C A H O U N I I M I S S I S S I P P I ' NEWJEH52?“ N E W M E X I C O ‘ O K L A H O N M O R E G O N SDAKOTA T E N N E S S E E ( g s ( o z u - o “ . 1 2 ' 0 c o a n i z o n n I fl o l m m K E N T u c x v m u m m - N a n n n s x n a g e 2 | z s e a l b e l t l a w a d m i n i s t r a t i v e 3 . l i c e n s e T 4 . 1 0 o r l o w e r p e r s a l e v e l T 5 o p e n c o n t a i n e r l a w T 6 d r a m s h o p s l a ‘ u t e f 7 v i c t i m r e s l i l u l l o u T a u s e r f u n d e d p r o g r a m s T g , - s o b r i e l y c h e c k p o l n l s b r e a l h l e s t l a w t e a l r e f u s a l a d m m e d 1 - i n c o u r l f e l o n y , 1 3 . d e a t h a l l e a s i 9 0 d a s 4 - l i c e n s e S I R , f r s l o fi e n s e w i t h d r a w y n u i h l i c e n s e . 1 5 - D U I : o n v l c l l o n a n d t e s t r e l u s a l d r f v l n g o n 1 6 - l i c e n s e 7 . s e n t e n c e 1 8 . D U I 1 9 . a n d W A S H I N G T O N ‘ W . V l R fl r N - ‘ A W I S C O N S I N 4 4 2 5 2 2 4 3 1 7 2 8 a 7 4 2 5 0 2 6 4 5 1 3 3 9 13 2 3 2 5 2 4 5 1 3 3 S u r v e y w o r k p e r i m r n e d f o r l h e C o m m i s s i o n o = I . s _ i a fl v e u r a d r n i n i s t r a u v e m e a s u r e a p p r o v e d : i n c l u s [ u t u r z e f l e c l i v e d a l e s . 1 ' = d e n o t e s A l c o h o l T r a i fi c S a l e l y I m e n l l v g G r a n t F u n d s ” d 2 3 u . s . c 4 0 8 . S t a r s ; m m n a m e s a s g e r i s n e d n a v e q u a n t u m r m t h e s e C u s . O B p e r s e i e v e l m O r e g o n . U l a h . b y A l l s l a t e I n s u r a n c e C o m p a fi y 8 8 39 nonconformance represent countermeasures which have 1arge deterrent potent1a1s. Specifica11y: o Recommendation #3 - administrative per se Wicense suspension o Recommendation #12 - exc1usion of DUI p1ea bargaining 0 Recommendation #14 - minimum 90-day 1icense suspension for first offense With respect to Recommendation 17, the Commission's report shows Ca1ifornia as not having mandatory presentence investigation (PSI), which is sti11 true. However, SB 2206 - Watson (1986) was enacted into 1aw on 1/1/87 estab1ishing PSI standards, a funding mechanism and discretionarg authority for judicial use. The needs and benefits of a PSI requirement were not eva1uated by any of the studies described in previous sections, but were assessed 1n a 1975 DMV study (Epperson, Harano and Peck, 1975). A1though we do not be1ieve that PSIs offer a great dea1 of deterrent potentia], they can resu1t in a more object1Ve and rationa] sanction decision and are perhaps defensib1e on these grounds. ABA Study of Drunk Drivinq Laws and Enforcement The American Bar Association conducted a comprehensive review 0f the 1ega1, enforcement, administrative, and sanctioning considerations re1at1ve to DUI contro1 in the United States. The fo11owing is a summary of major conc1usions and recommendations contained in their 1986 fina] report. Sobriety checkpoints represent a promising deterrent strategy, at 1east over the short term. o B1ood a1coho1 "per se" 1aws at BAC 2_ 0.10% shou1d be established in setting the maximum 1ega11y permissab1e a1coho1 content er driving. o The minimum drinking age shou1d be 21 in a1] states. e Server 1iabi1ity and dram shOp 1aws shou1d be enacted and supported. o Legis1ation shou1d be supported a110wing re1evant evidence of driver impairment from a1coho1 or drugs to be admitted in civi] cases arising from traffic accidents. S\ 40 e Mandatory minimum ja11 terms shou1d be supported for mu1tip1e offenders, supp1emented by other punitive and rehabi1itative sanctions. o Subjective judicia] discretion in sanctioning first offenders should be reduced or e1iminated. Instead, sanctions (inc1uding ja11) shou1d be based on objective criteria such as a first-offender's blood a1coh01 1eve1 and past driving record, and "aggravating circumstances," such as an accident invo1vement. Any additiona] “individua1ized” sanctions above mandatory minimums shou1d be based on presentence investigation reports (PSI). o Charge-reduction negotiations shou1d be reduced or e1iminated. e State impiied consent laws shou1d be amended, where necessary, to authorize po1ice to require (force) drivers invo1ved in serious accidents to submit to chemica] tests when evidence of probab1e impairment exists. o Administrative per se 1icense suspension 1aws shou1d be supported, subject to certain due process procedures. o Pena1ties for driving with a suspended/revoked 1icense should be increased and more strict1y enforced. Convictions for drunk driving whi1e under 1icense suspension shou1d be considered an “aggraVating factor" 1n enhancing sanctions for the DUI offense. A comparison of the recommendations 0f the above two po1icy reviews indicates a 1arge degree of concordance between the two groups and, in turn, con« currence with the conc1usions and recommendations contained in the preceding sections of this monograph. Having estab1ished a reasonab1y compe111ng consensus as to the structure of an "idea1" DUI centre] program, it is appropriate to review California's progranl in 1ight of this nuc1eus of optimum characteristics and then prOCeed to out1ine desirab1e a1terations in Ca1if0rnia's statutory and administrative po1icy. 9’} 41 Defects in the Current Adjudication/License Contr01 Process A detai1ed f1ow chart of Ca1ifornia's DUI contro] systems, from the point of arrest to DMV receipt and action, was presented in Vo1ume 1. This descrip- tion ref1ects statutory and administrative po1icy as of 1982. It therefore daes not ref1ect changes which have occurred during subsequent years, and 1t a1so provides 1itt1e detai] on the-process of reinstating drivers from sus- pension. Ne have therefore deve1oped two charts for use in guiding this discussion. The first is a tree diagram whose graphics are based on those of the Automobi1e Club of Southern Ca1ifornia's "DUI Tree of Knowledge." It shows the array of sanctions under current law for convicted DUI offenders having varying numbers of prior convictions (Figure 16). The second chart is a f1ow diagram showing the postc0nviction DMV process in considerab1e detai] (Figure 17). Just a cursory g1ance at Figure 16 is sufficient to a11ow the conc1usion that Ca11fornia's sanction po1icy is high1y comp1ex and provides a great dea] of judicia1 discretion. A more deta11ed inspection a1so indicates that the system is not consistent with some of the recommendations from the above two po1icy studies. Probab1y the most notab1e conf1ict re1ates to the recommendation for a mandatory license suspension for first offenders. Although Figure 16 indicates that courts have discretionary authority to sus- pend first offenders, the resu1ts presented in Volume 5 indicate that on1y 3% of first offenders actua11y receive a suspension. Perhaps more noteworthy is the fact that Ca1ifornia 1aw does not require suspension of second offenders. As indicated by the tree diagram, second offenders who enro11 and comp1ete a one-year rehabiTitation program receive on1y a 1icense restriction. The sanction configuration is further'comp1icated by the fact that the courts use sanctions that are not authorized by statute, at 1east insofar as this can be inferred from abstracts of conviction reported by the courts. In Vo1umes 3 and 5 of the DUI systems study, it was found that some first offenders have their 1icenses restricted without a1so being required to attend an a1coho1 education program, and that mandatohy ja11 sentences are not a1ways given. Another questionab1e sanction, though permissib1e under current 1aw, is to assign first offenders to an education program without a1so restricting the offender's driving privi1ege. This is a very common1y used sanction, as shown in Vo1umes 3 and 5. 53 4. 5 1 2 9 5 « o 0 3. 5 0 5.2L : L o : B h oLn t_ w u t u t . a fi n . 6 .. E n 2 9. 1 .6 8 no t_ h m om . a_ E o E uu 5 2 : 5 3 E .3 8 c. 2 9 5 5. 2 3 3 8 5. E u» : 5 9. . u em u : S v 3 3 3 2 3 .6 1 : 3... v e i n : 5 B : I t : :6 . : ¢ l = 3 f lu... b 5. 5 . o 93 n E 1 E S Q « a h . uaa h Y- . I I : . a E. S E fln u n . 5 £ 2 5 h . 6 1 . n Is l f é 2. L 8 5. u... £ . $ b. t i ! uI-« L. : 1 1 u : 3 n: t r a i uo $. 3 3 5 2 1 $ : 3. 4 . 2 3 2 a 8 : 3 9: o: L n. 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E S E B E E 5 2 E e. m : nw uu fim H un E 3 5 0 u o Em um ufl n w a ne .wH a u dmd h 34 43 An ana1ysis of Figure 17 pinpoints some other defects in the system. Note, for example, that second offendefis assigned to SB 38 programs maintain their (restricted) 1icense Drivi1ege fo11owing program comp1etion without having to fi1e and maintain evidence of proof of insurance. Another prob1em re1ates to qua1ity contro] and verification of program comp1etion. In first-offender programs, the courts are theoretica11y responsib1e for determining com- p1iance. However, there is no expWicit requirement to monitor comp1etion status, to notify DMV of nonattendance, or to impose jai1 and/or 1icense suspension. The system for monitoring comp1iance varies from court to court and is genera11y not re1iab1e. In some cases, offenders assigned to a program neVer show up and this fact does not become known t0 the courts. In the case of second-offender programs, the rehabi1itation providers report drapouts direct1y to DMV, which then issues 1icense suspensions. As in the case of first offenders, reporting has been neither re1iab1e nor time1y. The entire process is further comp1icated by the fact that the court can readmit dropouts and noncomp1iers back into the program up to two times. Each dr0pout and readmission resu1ts in imposition and then termination of 1icense suspension. If first-offender and repeat-offender programs continue as sanction options, we recommend the fo11ow1ng changes: e Positive reporting of comp1etion status to DMV shou1d be required. Fai1ure to receive comp1etion reports within a specified time period wou1d result in 1icense suspension. n Offenders who drop out or do not comp1y with program requirements should not be a11owed to have the ensuing 1icense suspension terminated upon readmittance t0 the program. Reca11 that the process f1ow chart shown in Vo1ume 1 was based on the system as constituted in 1982. A comparison of Figure 17 with that f1ow chart (Figure 2) revea1s severa] changes worthy of mention. 1. Legis1ation effective on 7/1/85 requires that four-time offenders and repeat fe1ony offenders who have not comp1eted an approved one-year SB 38 44 I E I i ( 1 5 3. 5 . I l n 5 - « : ng . 2 j . l l. s h i n ? . I_ k 1._ h l | l_ l l. . l . 2 } l . t l . h. l l l. ii 4 3 > }. u n co nun Hu b n fl uu fl fiou n fi om Sn» u n 9 3 : 3 . 6 3 Em a n u a .hn Eu : Sb 45 program are required to comp1ete a program prior to being reinstated. The, Department must a1so conduct reentry interviews t0 estab1ish the fitness of such offenders to drive before reinstating their 1icense privi1ege. 2. Legis1ation effectiVe on 7/1/85 extends to 18 months the 11cense suspension for two-time offenders who do not enro11 fin, and comp1ete, an SB 38 a1coho1-rehabi1itation program. 3. Legis1ation effective on 1/1/87 changes the counting period for DUI priors from 5 t0 7 years. 4. Legis1ation effective on 1/1/87 makes it un1awfu1 for a minor to drive with a BAC of .05% or more. Offenders are required to comp1ete an a1coho1 education or community service program. 5. Legis1ation effective on 1/1/85 requires that minors convicted of DUI comp1ete a one-year a1coho1 treatment program. 6. Legislation effective 0n 1/1/84 requires that minors convicted of DUI have their 1icenses revoked for 1 year, to age 18, or for the usua] period prescribed by 1aw, whichever is 1onger. Some Improved System A1ternatives A number of recommendations for improving Ca1ifornia's DUI contro] system were presented in Vo1umes 3 and 5 of the DUI systems study (Tashima & Peck, 1987; He1ander, 1986). Specific recommendations pertaining to the 1mp11ed consent 1aw are contained in Vo1ume 4 (Sad1er, 1986). These recommendations are summarized in the ear1ier sections of this report. Based on these resu1ts and the considerations presented above, we can out1ine some recommended policy changes. The recommendations are organized around statements of end purposes, as described be1ow. I. Steps shou1d be taken to increase the probabi1i§x_of beinq detected for imgaired driving. In addition to the obvious option of increasing the II. 46 number of enforcement personne1, three additiona1 measures deserve consideration and/or increased imp1ementation. A. Use of prearrest breath screening devices when evidence of probab1e impairment exists in investigating traffic v101ations and accidents. It has 1on9 been known that the routine interaction between officer and driver is not a re1iab1e method of identifying those drivers who shou1d be required to take a fie1d sobriety test (FST). Heavy drinkers can appear very norma] and a1coho1 odor can be concealed or virtua11y absent in the presence of substantia] BAC 1eve1s. As a resu1t, the present system of administering chemica] tests 0n1y to those who take and fai1 an FST resu1ts in a substantia] fa1se negative rate (not detecting persons who are tru1y impaired). B. Use of sobriety checkpoints. The Ca1ifornia Supreme Court has recently uphe1d the constitutionality of the CHP's system of estab1ishing roadb1ocks or checkpoints to test random samp1es of drivers for impairment. Use and expansion of this system shou1d be encouraged. C. A11 10ca1 and state traffic enforcement personnel shou1d uti1ize the threp-test FST configuration (gaze nystagmus, wa1k and turn, and one-1eg stand) found to have maximum discriminating power (sensitivity and Specificity) for detecting a1coho1 impairment. Any FST shou1d inc1ude these three tests (O1son, 1986). Steps shou1d be taken t0 increase the probabi1ity of being convicted of the origjna] DUI charge. The fo11owing strategies shou1d be 1mp1eménted. A. P1ace additiona1 constraints on the prosecutor's and court's authority to p1ea-bargain DUI charges to a 1esser charge. B. Increase prosecution for driving with a DUI-suspended 1icense; uti1ize the "constructive proof" concept as evidence of receipt of 1icense suspension when signed proof is unavai1ab1e. This concept, III. 47 which is current1y ref1ected in CVC 14601, a11ows proof of service to be inferred from certification that the suspension order‘ was mai1ed to the driver's address of record. Decrease subjective judicia] discretion and the number of sanction Options avai1ab1e to the courts; e1iminate judicia] authority to impose or waive Wicense contro] sanctions; 1icense contro1 sanctions shou1d be mandated by statute. Require presentence investigations and develop sanction options based on the PSI standards deve1oped by OTS pursuant to SB 2206- Watson (1986). High BACs (0.20% and above) and a history of accident invo1vement and moving vio1ations shou1d be the major factors in requiring enhanced sanctions and referra] to education and treatment programs. Steps should be taken to increase the impact of 1icense suspension as a A. DUI deterrent. A mandatory administrative per se 1icense suspension 1aw shou1d be enacted to assure the prompt suspension of a1] chemica1-test refusers and a1] offenders with BACs of 0.1 % or more. If the above 1aw is not enacted, then the a1ternative shou1d be to adopt 1egi51ation imposing mandatory 1icense suspension upon conviction for gflx DUI offense. Enro11ment in DUI educationa] or rehabi1itation programs shou1d not be used as an a1ternative to prescribed 1icense contro] actions. Instead, postconviction treatment programs shou1d be used as an additiona] countermeasure for offenders who qua1ify under approved PSI standards. As an incentive to promote treatment, consideration shou1d be giVen to redueing the 1ength of the 1icense suspension upon entry into, and completion of, a certified a1coho1 treatment program. In the same way, other promising countermeasures, such as ignition inter1ock devices, shou1d be used on1y as additiona], not IV.‘ 48 a1ternative, actions, unti] their effectiveness, if any, can be estab1ished. A demonstration-project (AB 3939, Farr, 1986) is current1y in progress to provide this eva1uation for ignition inter10ck drivers. First offenders with high BAC 1eve1s (0.20% and aboVé) should be subject to the same 1icense contra] sanctions and rehabi1itation reguirements as second offenders. Legis1ation shou1d be enacted to accomp1ish this. Steps shou1d be taken to improve the communication and coordination Tinkaqes between the po1ice, courts, treatment providers and DMV. Legis1ation shou1d be enacted to accomp1ish the fo110wihg: A. D. A System of "positive reporting" of program comp1e£ion shou1d be estab1ished in p1aCe of the current negative reporting system (i.e., reporting on1y noncompliance and inferring comp1etion from the absence of a negative report). A statewide te1ecommunication system shou1d be estab1ished a11owing e1ectronic inputting of court abstracts to DMV's driver record data base and direct access to an offender's DMV'driver record. The current 1aw, a11owing secOnd offenders enro11ed in SB 38 programs to have their Ticense restriction removed after 6 nmnths and aTTowing program dropouts- to be readmitted_ up to two times, shou1d be abo1ished. The modification and readmitting authority unnecessari1y Comp1icates the commUnication/controT process and cannot be justified in view of the present empirica] evidence. Courts shou1d be required to serve suspension and revocation orders upon conviction in cases where the suSpension is mandated by statute. In addition, offenders who circumvent 1icense suspension by enro11ing in an SB 38 treatment program shou1d be required to 49 fi1e and maintain proof of insurance. Legis1ation (AB 328, Frazee) has been introduced in the 1987 1egis1ative session to imp1ement these changes. A11 forms of preconviction diversion of DUI offenses, inc1uding juveni1e offenses, shou1d be prohibited. Under existing We1fare and Institutions statutes (Section 1654), juveni1e offenders can be p1aced on informa1 probation and avoid having the offense reported to DMV. The use of vehic1e impounding shou1d be great1y expanded. Under current 1aw (CVC 23195), courts have discretion to impound veh1c1es registered to convicted DUI offenders under very 1im1ting circumstances. The authority is rare1y used and the impounding is fbr on1y a brief period (30-90 days). Consideration shou1d be given to enacting 1egis1ation requiring the DMV to revoke the registration of any three-time DUI offender who is convicted of a traffic vio1ation or invo1ved in a reportable accident whi1e under reVOcation for a prior DUI offense. Simi1ar1y, any drivers convicted of drunk driving whi1e under su5pension should have their vehic1e registration revoked. Co-registrants wou1d be required to register the vehic1e under the stipu1ation that use by the revoked party wou1d resu1t in impounding of the vehicle. Steps shou1d be taken to deve1op and imp1ement a management information system for monitoring system performance and providing periodic status reports to the various organizations having reSponsibi1ity for traffic safety and traffic 1aw enforcement. Two OTS grants currently 1n progress at DMV are designed to: A. Estab1ish process and qua11ty objectives and a system for tracking DUI incidents from point of arrest to DMV action. Process measures wou1d be tabu1ated by county and court for 1nc1usion in an annua1 "state of the DUI contra] system" report. (A 50 B. Estab1ish a system for measuring the impact of DUI sanctions on recidivism rates and prOviding counties with periodic state and 1oca1 recidivism norms. Tab1e 2 presents an overview. of the key e1ements and rationa1e for an improved system. Based on the evidence presented fin the previous chapters, there is noqquestion that the preposed mode1 wou1d resu1t 1n a substant1a1 reduction fin DUI rates and DUIsrelated traffic accidents. é ” ) P R O C E S S l . D e f e c f l o n o f I m p a i r e d d r i v e r l l . A d j u d i c a f l o n p r o c e d u r e s P R O B L E M / D E F I C I E N C Y . I n s u f f l c l e n f p r o b a b l l l f y o f d e f e c + l o n A a r r e s f . C o n v l c f f o n r a f e + 0 0 l o w . S u b o p f l m a l s a n c + l o n s . F a f i u r e + 0 p r o s e c u + e f o r d r l v l n g w l f h s u s p e n d e d l l c e n s e . U s e o f l n a p p r o p r i a f e a n d n o n s + a + u + o r l l y p r e s c r i b e d s a n c f l o n s . T A B L E 2 E L E M E N T S 0 F A N I M P R O V E D D U I C O N T R O L S Y S T E M C A U S E l n a d e q u a + e n u m b e r o f + r a f f l c e n f o r c e m e n f p e r s o n n e l . l e f l c u l f y I n d e t e r m i n i n g p r o b a b l e c a u s e o f l m p a l r - m e n f f r c n r o u + i n e o b s e r v a - T l o n . E x c e s s i v e p l e a b a r g a i n i n g . T o o m a n y s a n c + l o n o p + l o n s . L a c k o f e m p l r l c a I I y - a n c h o r e d s e n f e n c l n g g u l d e l l n e s . C o u r + u n a w a r e o f d r i v e r ' s l i c e n s e s + a + u s . L a c k o f p r o o f o f s e r v l c e o f s u s p e n s i o n o r d e r s . 2 DJ u m M o r e e f f l c l e n + a l l o c a + l o n o f f r a f f l c p o l i c e I n f l e l d . I n c r e a s e d p e r s o n n e l . S o b r l e + y c h e c k p o f n f s . P r e a r r e s + b r e a + h s c r e e n l n g d e v l c e s . U s e o f o p f l m u m F i e l d S o b r l e f y T e s f b a + f 3 r y . D e c r e a s e n u m b e r o f s a n c + l o n o p + | o n s a n d s u b j e c f i v e j u d i c i a l d I s c r e + l o n . R e q u i r e p r e s e n f e n c e | n v e s + | * g a f l o n a n d u s e o f P S I g u i d e - l l n e s I n d e + e r m l n l n g s a n c f l o n s - E l l m l n a f e c o u r + d l s c r e f l o n o v e r l m p o s l f l o n o f l i c e n s e s u s p e n s i o n s . N a r r o w + h e c o n d | + l o n s u n d e r w h i c h D U I o f f e n s e s c a n b e r e d u c e d + 0 a I e S s e r c h a r g e . F r o s e c u f e 1 4 6 0 1 c a s e s w l f h o u f s i g n e d p r o o f I f o r d e r m a i l e d 1 o a d d r e s s o f r e c o r d ( s e e I V f o r r e l a + e d r e c o m m e n d a f l o n ) . D e + e r m l n e l i c e n s e s f a f u s a f T i m e o f a r r e s f a n d p r i o r + 0 a d j u d i c a - + I o n . C l + e a n d b o o k f o r V . C . 1 4 6 0 1 . R A T I O N A L E / S U P P O R T P a g e s 2 2 - 2 4 , 3 1 - 3 3 a n d 4 5 - 4 6 . S e e r e f e r e n c e s 1 , 1 7 , 3 1 , 3 7 , 4 4 a n d 4 7 . P a g e s 2 2 - 2 4 a n d 3 7 - 4 6 . S e e r e f e r e n c e s 1 , 1 7 , 3 2 a n d 3 3 . S o l u f l o n # 2 e m b o d i e d I n r e c e n f l y e n a c f e d l a w ( v . 6 . 2 3 2 0 5 ) b u + u s e l s d l s c r e f l o n a r y . A u + h o r l + y f o r s o l u + l o n £ 5 e x l s + s I n s f a + u f e b u + l s s e l d o m u s e d . I S 4 fl P R O B L E M / D E F I C l E N C ‘ ! l n a d e q u a f e a n d l n s u f f l c l e n f u s e o f U c a n s e s u s p e n s i o n a s a s a n c t i o n . T A B L E 2 ( C o n f l n u a d ) E L E M E N T S W A N I M P R O V E D D U I ( D N T R O L S Y S T B d C A U S E L e n g t h y d e l a y s b e h e e n D U I a r r e s + a n d n l ' f h d r a w a l o f d r l v l n g p r i v i l e g e . V l H - u a l n o n u s e o f l i c e n s e s u s p e n s i o n f o r f l r ' s f o f f e n d e r s . I n s u f f l c l e n + u s e o f l i c e n s e s u s p e n s l n n f o r r e p e a + o f f e n d e r s . 2 v 4 S O L U T I O N E n a c t a r : a d m l n l s f r a fl v e s u s p e n s i o n s + a + u + e # I g g r l n g s u s p e n s i o n u p o n a r r e s f . E n a c f l e g i s l a fl o n r e q u i r i n g a l l c o n v i c t e d D U I o f f e n d e r ' s ( I n c l u d i n g f l r s f ) + 0 b e s u s p e n d e d u p o n c o n v i c - H o n . F l r s + o f f e n d e r s . w H ' h B A c ' s a b o v e 0 - 2 0 2 s h o u l d r e c e i v e s a m e l i c e n s e c o n f r o l s a n c fl o n s a s r e p e a ' r o f f e n d e r s . U s e a l c o h o l e d u c a fl o n a n d + r e a + m e n + p r o g r a m s a s s u p p l e m e n + s 1 ’ 0 , r a f h e r ‘ 1 ‘ t h s u b s fl ‘ m ‘ r e s f o r , l i c e n s e s u s p e n s i o n ; r e d u c e I e n g + h o f s u s p e n s l o n f u r p r o g r a m g r a d u a t e s a s a n I n c e n fl v e + o p r a n o + e fi r e a ‘ h n e n ‘ r . I m p o u n d v e h i c l e s o f s u s p e n d e d d r u n k d r i v e r s u h o r e c l d l v a ' r e w h i l e u n d e r s u s p e n s i o n . R A T | O N A L E / S U P P O R T P a g e s 1 1 - 1 9 , 1 8 6 2 0 , 2 2 - 2 4 a n d 3 7 % 8 . S e e r e f e r e n c e s I , 6 . 7 , 8 , I 7 , 3 | , 3 2 , 3 8 , 5 0 , 5 1 , 5 3 a n d 5 4 . P a r - H a l a u + h o r l + y f o r s o l u f l o n : 4 r e s l d e s I n V . c . S s c H o n s 2 3 2 0 6 - 5 a n d 2 3 2 0 5 , a n d s u p p o r f l n g d a f a a ' r e c o n ‘ f a ' l n e d I n r e f e r e n c e 8 . D l s c r e f l o n a r y a e r h o r ' H y f o r I m p o u n d l n g V e ' h l c l e s r e s l d e s l n V . C . S e c t i o n 2 3 1 9 5 . T h e D M V c u r r e n - H y r e c e i v e s B A C l e v e l o n n b s f r a c f s o f c o n v l c fl o n b u + I n f o r m a fl o n l s l n c a n p l e + e a n d c a n o n l y b e u s e d f o r r e ' s e a r ' c h p w ' p o s e ' s . P R O C E S S I l l . L i c e n s e c a n ‘ r r o l . I V . I n f a r a g e n c y . . c o o r d l n a - H o n T i m e d e l a y s I n l n p u H - l n g a n d r e + r l e v l n g I n f o b e fi e e n a l c d m l p r q r ' a m p r o v i d e r ' s , D M V a n d c o u r t s . P r o g r a m c u n p l e f l o n s f a f u s n a f r e l [ a b l y m o n H o r e d ; d r o p o u f s n o f r e p o r f e d + 0 M W . $ 3 3 r e a d m i s s i o n s f a n d a r d s + 0 0 l a x . S a n e D U I c a s e s n o + r e p o h ‘ e d 1 ' 0 D M V . P u b l i c e x p o s e d 1 0 I n c r e a s e d u n i n s u r e d d r l v e r r i s k s . L a w a g a i n s - r d r l v l n g t h s u s p e n d e d l i c e n s e n c f a d e q u a - t - e l y e n f o r c e d - D r l v e r s l i c e n s e f r e q u e n f l y n o f p i c k e d u p a n d s l g n e d p r o o f o f s u s p e n s i o n n o + o b f a l n e d . L a c k o f s + a + e ~ l d e l n + e r a c r l v e + e l e c u 1 m u n l c o f l o n n e ‘ h v o r k a n d D U I + r a c k l n g s y s + a n . S y s + e n o f n e g a fl v e r e p o r - H n g d o e s n o r r e l i a b l y I d e n fl f y m ' n p l e fl c n s f a ' h J s . W e l f a r e a n d l n s fl ‘ f u fl o n s C o d e p e r m l ‘ f s p r e c o n v l c f l a n d l v v e r s l o n o f J u v e n i l e o f f e n d e r s - C o u r + s f r e q u e n fi y d o n o l - p i c k u p T h e d r i v e r ' s l i c e n s e o r e x e c u + e p r o o f l n c a s e s w h e r e d r t v e r l s a l r e a d y s u s p e n d e d o r u ” ! b e s u s p e n d e d u p o n c o n v l c f l c n . C o u r t s c a n c u r r e n fl y r e a d m l ' r p r o g r a n d r o p o u + 5 a n d n o n - c a a n e r s h o fl m e s a n d c a n s h o r f e n l i c e n s e r e s ‘ h ' l c f l o n 1 ' 0 6 m o n + h 5 . S B 3 8 p a r t l c l p a n f s c a n d r ' l v e w l + h o u + m a l n f a l n l n g e v i d e n c e o f I n s u r a n c e ( p r o o f ) - 2 A . V I u E x p a n d a n d e n h a n c e c u r r e n f s + a + e v l d e c o u r ‘ t - D M V f e l e c a r p m u n l c a ‘ f l o n s y s + e n . R e m o v e a l l D U I c a s e s f r a n p u r v l e u o f s e d l o n 1 6 5 4 o f + h e W e l f a r e a n d l n s + l + u + l o n s C o d a H a v e c o u r + s e x a c u f e s u s p e n s i o n o r d e r l n c a s e s I h e r e s u s p e n s l o n l s m a n d a + o r y u p o n c o n v i c t i o n . ( T h l s - l e g i s l a ‘ H o n h a s b e e n l n l f l a f e d . ) E n h a n c e c o u r f v e r b a l n o f l c e a n d l i c e n s e p l c k - u p p r o c e d u r e s ( f o r m D L 3 1 0 ) . ( T h i s h a s b e e n d o n e . ) E n a c f l e g l s l a fl o n + 0 p r e v e n + r e l n s f u + e n e n + o f l i c e n s e p r i v i l e g e f o r S B 3 B d r o p o u ‘ f s u h o a r e r e a d m l ‘ H ' e d f n i ’ o E 3 3 p r o g r a m s . E n a C f I e g l s l a ‘ H o n + 0 r e q u i r e + h a + $ 3 a a - H ’ e n d e e s f i l e I n s u r a n c e p r o o f I n o r d e r + 0 a v o i d l i c e n s e s u s p e n s i o n . ( T h i s l e g i s l a fl o n h a s b e e n e n a c t e d . ) P a g e s ) 8 - 2 0 , 2 2 - 2 4 a n d 4 1 - 4 9 . S e e r e f e r e n c e s I 7 , 5 0 a n d 5 3 . H o + e = A n I m p r o v e d T e l e c a n m u n l c a - H o n s y s f a n l s c u r r e n fl y I n o p e r a fl c n a n d u n d e r c o n fl n u a l d e v e l o p m e n t + h r o u g h p u r - H a l s u p p o r f f r o m + h e O f f l c e o f T r a f f i c S a f e i - y . Z S P R O C E S S V . M a n a g e m e n - l n f o r m a fl o n s y s + e m P R O B L E M / D E F I C l E N C Y A b s e n c e o f m e a s u r e s o f s y s + a n p e r f o r m a n c e . A b s e n c e o f d a f a o n + h e o o e r a ‘ H n g c h a r a c t e r l s fl c s , p r o c e s s q u a l H - y a n d l r n p a c + o f D U I c o n f r o l a g e n c i e s , s a n c f l o n s a n d c w n ' f ' e r b m e a s u r e s . T A B L E 2 ( C o n + I n u e d ) E L E M E N T S 0 F A N I M P R O V E D U I m N T R O L S Y S T E M C A U S E L a c k o f a c o h e r e n + s e + o f e x p l c h ' s y s + e n o b j e c t i v e s a n d g o a l s . L a c k o f a m e c h a n i s m f o r m n H o r i n g s y s ‘ f e m p e r f o r m a n c e a n d f o r p r o v i d i n g f e e d b a c k 1 ' 0 d e c i s l o n m a k e r s . N o n a v a l l l b l l H ' y o f d a + a o n I n d i v i d u a l a r r e s ‘ l ' s w h i c h h a v e n o r r e s u l + e d I n c o n v c h o n s . L a c k o f d a + a o n r e a s o n s f o r n o n - p r o s e c u fl o n a n d n o n c o n v l c ‘ H o n o f D U I o f f e n s e s . 1 . 2 . 3 . S O L U T l O N E s ‘ f a b l l s h a + a s k f o r c e f o r d e v e l o p i n g s p e c i f i c s y s ‘ f e m a n d s u b s y s - f a n o b j e c t i v e s a n d p e r f o r m a n c e m e a s u r e s . D e v e l w a m a n a g e m e n + l n f o r m a fl o n s y s + e m f o r p r o v l d l n g f e e d b a c k o n s y s f e m p r o c e s s p a r a m e f e r s f r a n p o l n + o f a r r e s + + h r o u g h D M V a c fl o n ( i o c a l l y a n d s + a 1 ' e w l d e ) . D e v e l o p a s y s ‘ r e m f o r m e a s u r i n g + h e l m p a c f ( l o c a l l y a n d s f a f a w l d e ) o f D U I s a n c H o n s o n r e c l d l v l s m a n d a c c l d e n + r a f e s . R A T l O N A L E / S U P P O R T P a g e s 2 2 - 2 4 a n d 3 3 - 3 7 . S e e r e f e r e n c e s 1 7 , S d a n d 5 3 . 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Magbsoodloo, 5., & BrOWn, D. B. (1985a). Impact of drunk driving 1eg1s1at1on in the State of A1abama. Transportation Research Record-1G47. Washington, DC: Transportation Research Board, Nat1ona1 REEEEFEH‘EEUncfi]. pp. 29-32. Maghsood1oo, S., & Brown, D. B. (1985b). Impact of drunk dr1ving 1e islation in the State of A1abama. A1abama: Auburn Un1vers1ty, epar ment of Industr1a1 Engineering. Mann, R. E., Leigh, G., Vingi1is, E. R., & DeGenova, K. (1983). A critica] review of the effectiveness of drinking-driving rehabi1itation programmes. Accident Analysis and Prevent1on, lg, 441-461. Nationa] Commission Against Drunk Driving. (1986). Pro ress Re ort on Recommendations Proposed by the Presidentia] Comm15510n on Drunk ur1v1ng, wa3h1ngton DC: Author. Nationa] Highway Traffic Safety Administration. (1986). Reducin highway crashes through administrative 1icense revocation, Masfiingffin DE: Author. Nationa] Transportation Safety Board. (1984). Deficiencies in enforcement, judicia], and treatment programs re1ated to repeaf 0¥Fenaer firunk dr1ver5. ”Washington, DC: Author. Nicho1s, J. L., Weinstein, E. B., E11ingstad, V. 3., Struckman-Jchnson, D. L., & Reis, R. E. (1980}. The effectiveness of education and treatment programs for drinking drivers: A decade of evaluat1on. Paper presented at the 8th Internat1ona1 Cbnference on Alcohol, Drugs, and Traffic Safety, Stockholm, Sweden. Nicho1s, J. L., Weinstein, E. B., E11ingstad, V. 8., & Struckman- Johnson, Q.'L. _(1978). The specific deterrent effect of ASAP education and rehab111tat1on programs. Journa1 of Safety Research. 19: 177-187. Office of Traffic Safety. (1983). Interim report to the Legislature: Ca1ifornia's first DUI offender proqrams. Sacramento, CA: Author. O1son, P. L. (1986). Identifying a1coho1-impaired drivers. The UMTRI Research Review, 16 (5), Ann Arbor, MI: University of chhigan Transportation ReséEFch Institute. (0%" 38. 39. 40. 41. 43. 44. 45. 46. 47. 48. 49. 50. 57 Peck, R. C., Sad1er, D. 0., & Perrine, M. w. (1985). The comparative effectiveness of a1coho1 rehabi1itation and 1icensing contro] actions for drunk driving offenders: A review of the 1iterature. A1coho1, Drugs and Driving, l, 15-39. Peck, R. C. (1984). A statistica1 eva1uation of the traffic safety imgact of AB 541. Unpubl1shed manUSCript. Peck, R. C. (1983). The traffic safety impact of Ca1iforn1a's new drunk drfivfin 1aw (AB 54]): An evaluation of the f1rst n1ne months 0+ EfiifiFfififiEE'TafififiFf‘Nb.‘B?]. Sacramento, CA: California Department of Mofor Eefific1es. Peck, R. C. (1981). [Review of "An appraisa] of San Diego County SB 38 participant DUI recidivism and traffic accident invo1vement."] .Abstracts and Reviews in A1coho1 & Driving) g'(10), 3-5. Perrine, M. w. (1984). Ana1ysis of DUI processing from arrest through post-conviction countermeasures. VoWume ‘1 of An evaluation of the Ca1iforn1a dFunk driving countermeasure system (Raport No. BET. bacramento,‘tfi: California Department of Motor Vehicles. Popkin, C. L., Li, L. K.. Lacey, J. H., Stewart, R. J., & NaT1er, P. F. (1983). An initia1 evaluation of the North Carolina a1cohol and drug education‘f?€7ffi€‘§fififioIs (Volume 1, Technical Report). Chape1 H111, NC: University‘fi? North Caro1ina Highway Safety Research Center. Presidentia] Commission on Drunk Driving. (1983). Presidentia] commission fina1 report on drunk drivinq. Washington, DC: Author. Reis, R. E. (1982a). The traffic safety effectiveness of education programs for first offense drunk drivers {Contract No. DUI H5-b-Ul4f471 wasfijflgtOH. DC: Nationa1 Highway Traffic Safety Administration. Reis, R. E. (1982b). The traffic safety effectiveness of educationa] r0 ramg for mu1tip1e offense drunk drivers (Contract No. DOT -- ~u1414;. wash1ngton, DC: Nation51 Highway Traffic Safety Administration. Ross,'H. L. (1982). Deterfing the drinking driver: Lega1 po1icy and socia] contro1. Lexingfbn, MA: D. C. Heath and Company. Ross, H. L. (1976). The neutra1izatign of severe ena1ties: Some traffic 1aw studies. Law and Society Rev1ew, lg, 403-4 3. Sad1er, D. D. (1986). An eva1uation of the process efficiency and traffic safety impact of the Ca11fornia implied consent program: Vo1ume H of An eva1uation of the'_CaI1forn1a drunk dr1v1ng countermEESUFE ento, LA: Lal1torfi1a Uepartment of Motor VEhicles. Sad1er, D. D., & Perrine, M. N. (1984). The long-term traffic safggx impact of a pilot a1coho1 abuse treatment as an a1ternat1Ve to l1cense su5pen510ns: VoTume 2 of An eva1uat1on of the Ca11f0rn?a drunk driving countermeasure system (Report No. QB}. Sacramento, CA: uaII?OFHIa Départment of Motor Veh1c1es. W 51. 52. 53. 54. 58 Sa1zberg, P. M., Houser, R., & K11ngberg, C. L. (1981). License revocation and a1coho1ism treatment programs for habitua1 traffic of?enders (Report No. 49}. Olympia, WA: Nash1ngton Department or Eicensing. Sa12berg, P. M., & Pau1rude, S. P. (1983). Leqa1 sanctions fgr drivigg whi1e intgxicated: Effect of the 1980 Nash1ngton law on drunk dr1v1ng rec1d1V1sm {Report No. 51). OWympia, NA: washington Department 0f [icensTfigT Tashima, H. N., & Peck, R. C. (1986). An eva1uation of the specific deterrent effects of a1ternative sanctions for‘ first and re eat DUI offenders: VoWume 3 of An Evaluat1on of the Lal1torn1a arfifiégfl?fivTfi§ Eggfig?figfiasure system. Sacramento,"tfi: Ca]1fornia Department of Motor e . Vote‘,.H. L., Jr., & Shapiro, P. (1983). Highway accidents in Sweden: Mode 11ng the process of drunken driving behaviour and contro]. Accident AnaIysis and Prevention, ]§, 523-533. EXHIBIT H 45 Bill History "‘3 I” fl . (/1 I (?IWZIIY. I LEGISLATIVE INFORMATION Page 1 of 1 Home Bi” Information California Law Publications Other Resources My Subscriptions My Favorites AB-3234 Public Safety. (2019»2020) Date I Action 09/30/20 Chaptered by Secretary of State - Chapter 334, Statutes of 2020. 09/30/20 Approved by the Governor. 09/15/20 Enrolled and presented to the Governor at 3 p.m. 08/31/20 In Assembly. Ordered to Engrossing and Enrolling. 08/31/20 Read third time. Passed. Ordered to the Assembly. (Ayes 27. Noes 10. Page 4548.). 08/30/20 Read second time. Ordered to third reading. 08/30/20 Ordered to second reading. 08/30/20 (Ayes 29. Noes 10. Page 4459.) 08/30/20 Withdrawn from committee. 08/24/20 In Senate. Read first time. To Com. on RLS. for assignment. 08/24/20 Read third time. Passed. Ordered to the Senate. (Ayes 43. Noes 26. Page 5183‘) 08/24/20 Assembly Rule 63 suspended. (Ayes 55. Noes 12. Page 5181.) 08/24/20 Read third time and amended. Ordered to third reading. (Page 5165.) 08/12/20 Read second time. Ordered to third reading. 08/11/20 Read second time and amended. Ordered returned to second reading. 08/10/20 From committee: Amend, and do pass as amended. (Ayes 5. Noes 3.) (August S). 08/03/20 Joint Rule 62(a), file notice suspended. (Ayes 48. Noes 25. Page 5069‘) 08/03/20 Re-referred to Com‘ on PUB. S. pursuant to Assembly Rule 77.2. 08/03/20 Read third time and amended. Ordered to third reading. (Ayes 40. Noes 18. Page 5067.) 08/03/20 Assembly Rule 63 suspended. (Ayes 56. Noes 16. Page 5059.) 08/03/20 Ordered to third reading. 08/03/20 From inactive file. 08/03/20 Assembly Rule 78 suspended. (Ayes 56. Noes 16. Page 5059.) 06/08/20 Ordered to inactive file at the request of Assembly Member Glorla. 06/08/20 From Consent Calendar. 06/03/20 Read second time. Ordered to Consent Calendar. 06/02/20 From committee: Do pass. To Consent Calendar. (Ayes 18. Noes o.) (June 2). 05/19/20 Re-referred to Com. on APPR. 05/18/20 Read second time and amended 05/14/20 From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 8. Noes 0.) (May 12). 05/05/20 Re-referred to Com. on L. GOV. 05/04/20 From committee chair, with author's amendments: Amend, and re-refer to Com. on L. GOV. Read second time and amended. 04/24/20 Referred to Corn. on L. GOV. 02/24/20 Read first time. 02/22/20 From printer. May be heard in committee March 23. 02/21/20 Introduced. To print. file:///C:/Users/sleung/AppData/Local/Temp/ 1/94K8NSH8 .htm 8/12/2021 Bill Analysis Page 1 of 1 (iv (rz/flzrnmrarr"? LEGISLATIVE INFORMATION Home B“anormation California Law Publications OtherResources My Subscriptions My Favorites AB-3234 Public Safety. (2019-2020) BIII AnalvslsWWW 20- F] rAn I 2 - h n file:///C:/Users/sleung/AppData/Local/Temp/1/9UBX6TVF.htm 8/1 3/2021 Exhibit H1 46 AB 3234 Page 1 Date of Hearing: May 12, 2020 ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT Cecilia Aguiar-Curry, Chair AB 3234 (Gloria) - As Amended May 4, 2020 SUBJECT: Subdivision Map Act. SUMMARY: Defines small lot subdivisions and authorizes local govemments to adopt small lot ordinances that streamline certain provisions of the Subdivision Map Act (SMA) for subdivisions 0f land that meet the definition of a small lot subdivision. Aligns SMA approval of tentative and parcel maps for housing development projects With provisions of the Housing Accountability Act (HAA). Specifically, this bill: 1) Defines a small lot subdivision as a subdivision of land that meets the following: a) The subdivision 1's located on a site that includes all of the following features: i) The site is an infill site, defined as a site that was either previously developed oris a vacant site where at least 75% of the pen'meter of the site adjoins parcels that are developed with qualified urban uses; ii) The site is located in an area 0r designated place identified as an urbanized area or urbanized cluster by the United States Census Bureau; iii) The site is zoned for, 0r has a general plan designation that allows for, single-family dwelling units, multifamily dwelling units, or mixed-use developments; iv) The site is less than five acres; V) The site’s minimum lot size is no smaller than 1,200 feet, unless a smaller size is approved by the local agency; and, vi) The site’s maximum lot size is 2,000 square feet orless. b) The subdivision is located on a site that does not include any ofthe following features: i) The site does not include parcels created Within the past 10 years, unless the parcel was created as the result of the plan of a redevelopment agency; ii) The site does not require more than one parking space per parcel; iii) The development ofthe site does not require the demolition or alteration 0f any of the following types ofhousing: (1) Housing that restricts rents t0 levels afiordable to persons and families 0f moderate, 10W, 01‘very low income; (2) Housing that is subject t0 rent or price control; 0r, (3) Housing occupied by tenants within the last seven years. 2) 3) 4) 5) 6) 7) 8) AB 3234 Page 2 iv) The site does not include a parcel Where the owner ofresidential property has withdrawn accommodations for rent 0r lease within the last 15 years; c) The site does not contain either of the following: i) A historic structure that is 0n a national, state, or local historic register; 0r, ii) Tribal Cultural Resources identified pursuant t0 the city, county, or city and county’s consultation with aCalifomia Native American tube, undertaken in compliance with the Califomia Environmental Quality Act (CEQA). Authorizes a city or county to provide for the creation of small lot subdivisions provided that the city 0r county adopts a small lot subdivision ordinance that includes provisions that: a) Incorporate the definition ofsmall lot subdivision specified in 1), above; and, b) Allow for concunent processing ofgrading permits, building permits and other approvals necessary to commence construction upon approval 0f a parcel map. Allows a city 0r county that adopts a small lot ordinance pursuant to 2) above, to require smaller lots, less parking, 0r greater density than the levels established in the small lot subdivision definition specified in 1), above. Provides that an action by a city or county t0 adopt a small lot subdivision ordinance that meets the requirements outlined in 2) and 3), above is not subject to CEQA. Amends the SMA to allow a small lot subdivision to be eligible for a parcel map and prohibits a local government fiom requiring: a) A tentative and final map for aparce] that is created in connection with a small lot subdivision; 0r, b) A tentative map in connection with a parcel map for a parcel that is being created in connection With a small lot subdivision. Extends limitations on improvements local governments can require for subdivisions of less than five parcels, t0 small lot subdivisions that meet the definition in 1), above. Requires a local government to ministerially approve a parcel map created in connection with a small lot subdivision that meets the definition in l), above. Requires a local government t0 approve a tentative map or a parcel map for a housing development project if substantial evidence in the record demonstrates the following: a) The proposed map, and the design or improvement of the proposed subdivision is consistent with the objective standards contained in the applicable general and specific plans and all applicable zoning and design review standards; b) That the design ofthe subdivisions orthe proposed improvements would not result in specific adverse impacts to public health and safety, 0r that feasible methods can be applied to mitigate the adverse impact; or, C) AB 3234 Page 3 That the design ofthe subdivision 0r the proposed improvements will not conflict with specified easements acquired by the public for access through, or use of property Within the proposed subdivision, unless the governing body finds that substantially equivalent altemate easements will be provided. 9) Provides that no reimbursement is required by this bill, pursuant to Section 6 of Article XIIIB of the California Constitution, because a local agency 0r school district has the authority t0 levy service charges, fees, 0r assessments suficient to pay for the program or level ofservice mandated bythis bill. EXISTING LAW: 1) Planning and Zoning Law requires every city and county to adopt a general plan that sets out planned uses for all ofthe area covered by the plan, and requires the general plan to include seven mandatory elements, including a land use element. 2) 3) 4) Requires major land use decisions by cities and counties, such as development permitting and subdivisions ofland, to be consistent with their adopted general plans. Requires, under CEQA, lead agencies with the principal responsflaility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, 0r an environmental impact report (EIR) for this action, unless the project is exempt fiom CEQA. Provides, pursuant to the SMA, the following related to the subdivision ofland: a) b) C) d) e) Requires a city or county to require a tentative and a final map for all subdivisions of land creating five 01' more parcels, except for subdivisions which meet specified conditions; Requires a city 01‘ county to require a parcel map for subdivisions meeting specified conditions; Allows a city or county to require a tentative map where only a parcel map is required; Limits the improvements a city 0r county may require for a subdivision of land that is less than five parcels; and, Requires a legislative body 0f a city 0r county to deny approval of a tentative map or a parcel map if it makes any 0f the following findings: i) That the proposed map is not consistent with applicable general and specific plans; ii) That the design 0r improvement of the proposed subdivision is not consistent With applicable general and specific plans; iii) That the site is not physically suitable for the type 0f development; iv) That the site is not physically suitable for the proposed density of development; AB 3234 Page 4 V) That the design 0fthe subdivision 0r the proposed improvements are likely to cause environmental damage, injure Wildlife, or are llkely t0 cause serious public health problems; 0r, Vi) That the design 0fthe subdivision or the type ofimprovements Will conflict with certain easements providing access through 0r use ofpropeny within the proposed subdivision. 5) Establishes the HAA, which provides that When aproposed housing development project complies With applicable, objective general plan, zoning, and subdivision standards and criteria in eflect at the time that the housing development project’s application is complete, but the local agency proposes t0 disapprove the project or to impose a condition that the project be developed at a lower density, the local agency shall base its decision regarding the proposed housing development project upon specified written findings. FISCAL EFFECT: This bill is keyed fiscal. COMMENTS: 1) Background. State Planning and Zoning Law, the Califomia Environmental Quality Act, the Subdivision Map Act, and the Housing Accountability Act all establish parameters that govern local development. a) b) Planning andZoningLaw. Planning and approving new housing is rminly alocal responsfloility. The California Constitution allows every city and county to “make and enforce within its limits, all local, police, sanitaIy and other ordinances and regulations not in conflict with general laws.” It is fiom this fimdamental power (commonly called the police power) that cities and counties derive their authority to regulate behavior t0 preserve the health, safety, and welfare of the public - including land use authority. State law provides additional powers and duties for cities and counties regarding land use. The Planning and Zoning Law requires every county and city to adopt a general plan that sets out planned uses for all 0fthe area covered by the plan. A general plan must include specified mandatory “elements,” including ahousing element that establishes the locations and densities ofhousing, among other requirements. Cities’ and counties’ major land use decisions - including most zoning ordinances and other aspects ofdevelopment permitting including subdivisions 0f land -must be consistent With their general plans. California Environmental QualityAct. CEQA requires a lead agency to prepare and certifil an EIR on a project that it proposes to carry out 0r approve that may have a significant efiect on the environment. Alternatively, the lead agency may adopt a negative declaration if it finds that the project will not have a significant efiect on the environment. Amendments t0 zoning ordinances and general plans are considered projects and are therefore subject to CEQA review. Generally, an EIR must accurately descrlbe the proposed project, identify and analyze each significant environmental impact expected t0 result fi'om the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range ofreasonable altematives to the proposed project. If mitigation measures are d) AB 3234 Page 5 required 0r incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures. The Subdivision MapAct. The SMA establishes a statewide regulatory fi'amework for controlling the subdividing of land, which generally requires a subdivider to submit, and have approved by the city 0r county in Which the land is situated, a tentative map. Cities and counties approve tentative maps that are consistent with their general plans, attaching scores ofconditions. Once subdividers comply with those conditions, local oficials must issue final Imps. Approving tentative maps is a discretionary action. However, once the conditions 0f atentative map are met, a final map is typically approved ministerially. For smaller subdivisions (lot splits), the level 0f improvements local governments can require for the subdivisions are statutorily limited and local oficials issue parcel maps rather than tentative and final maps. Parcel maps may be approved through a one-step discretionary process at the local level. However, local governments may, at their discretion, require a tentative parcel map followed by final parcel map for these subdivisions. The HousingAccountabilityAct. The HAA was enacted in 1982 in response to concerns over a growing rejection ofhousing development by local governments due t0 not-in-my-backyard (NIMBY) sentiments among local residents (SB 201 1, Greene). The HAA, also known as the “Anti-NIMBY” legislation, restricts a local agency’s ability t0 disapprove, 01' require density reductions in, certain types ofresidential projects. The HAA limits the ability oflocal govemments t0 reject or render infeasible housing developments based 0n their density without athorough analysis 0f the economic, social, and environmental efi‘ects of the action. When a proposed development complies With objective general plan and zoning standards, including design review standards, a local agency that intends t0 disapprove the project or approve it on the condition that it be developed ata lower density, must make written findings based on substantial evidence that the project would have a specific, adverse impact on the public health 0r safety and that there are no feasible methods to mitigate or avoid those impacts other than disapproval ofthe project. 2) Author’s Statement. According to the author, “One primary factor contnbuting t0 Califomia’s housing and homelessness crises has been the underproduction ofhousing units in the state. Large parcels of developable land are often underutilized, particularly in 3) urbanized, infill areas, because the process for subdividing the lot can be too cumbersome and make the project infeasible. AB 3234 establishes an opt-in small lot subdivision fiamework for local agencies to consider adopting. The framework limits the number of improvements an agency may impose upon a subdivided parcel while ensuring this time- certain process is limited to urban infill areas where the supporting infiastructure already exists. By providing housing development project proponents the needed certainty when considering whether t0 subdivide a parcel, this bill maintains local control of planning decisions While helping to spur the production ofdesperately needed housing units. ” “Missing-Middle” Housing. The cost of housing in California is the highest of any state in the nation. Additionally, the pace of change has far outstripped that in other parts 0f the country. While housing in California was 30% more expensive than the U.S. average in 1970, now it is 250% more expensive. Although incomes have also increased over that 4) AB 3234 Page 6 period, they have done s0 at a much slower pace. The result is that housing has become much more expensive. Only 28% ofhouseholds can buy the median priced home. More than half 0f renters and 80% of low-income renters are rent-burdened, meaning they pay more than 30% of their income towards rent. According t0 a 2016 McKinsey Global Institute report, Californians pay $50 billion more per year for housing than they are able to afi‘ord (nearly $3,000 per household). One of the many reasons that housing is too expensive is the type ofhousing that is being built. Almost all ofthe housing built in California is single-fimily (which can be an ineflicient use ofland) and mid- and high-rise construction (which is expensive to build). One strategy t0 reduce the cost ofhousing is to facilitate the construction 0f “missing- middle” housing types that accommodate more units per acre, but are not inherently expensive to build. This includes medium-density housing, such as duplexes, fourplexes, garden apartments, town homes, and so forth. In addition t0 being land-eflicient while being less expensive t0 build, these housing types have several other benefits, includinngeing more contextually similar to existing single-family neighborhoods; a) Providing sufliciem density to support the shops, restaurants, and transit that are associated with walkable neighborhoods; b) Helping expand the pool ofhomebuilders, since the construction and building maten'als are comparatively less complicated than larger mid- and high-rise stmctures; and, c) Being naturally less expensive in the market because each living unit is typically smaller than a single- fimily home, thereby helping increase access t0 opportunity and facilitating neighborhood equity and inclusion. A major reason that these units are not being built is that not enough land is designated for multi-family housing under local zoning. A 2019 Terner Center survey of Califomia cities and counties revealed that only 7% 0f local jun'sdictions zoned more than half their land for multi-family housing, and only 35% zoned one quarter of their land for multi- family housing. Additionally, even when land is properly zoned to allow the development of smaller units, existing maps may need t0 be subdivided into smaller parcels t0 allow for smaller homes that based on their size are “afi‘ordable by design.” Several cities have sought to encourage the development of smaller “starter homes,” such as town homes and bungalows in single family neighborhoods, as well as in areas zoned for commercial and multifamily development that remain undeveloped 0r underdeveloped by adopting small lot ordinances that streamline the development process for smaller homes. This bill seeks t0 encourage the development of small lot homes by exempting from CEQA ordinances that streamline aspects of the subdivision process under the SMA and meet certain objective standards. Small Lot Ordinances. In response to the growing housing affordability crises, several cities have considered adopting small lot ordinances t0 allow streamlined development of smaller single-family homes that can be built at a greater density than traditional single- family neighborhoods. 5) AB 3234 Page 7 Notably, the City of Los Angeles developed a small lot ordinance in the early 20005, to encourage the development 0f smaller townhomes and bungalows on undeveloped lots within the City. The ordinance reduced the minimum lot size substantially for single family homes and allowed snull lot homes t0 be built in undeveloped commercial and multifamily lots. Since 2010, 1,413 small lot units have been issued a certificate ofoccupancy in the City ofLos Angeles. Small lot subdivisions in the City are permitted at the existing residential density allowed in the zone. The City has found that approved small lot subdivisions in multifamily residential zones have an average density of39 dwelling units per acre and approved small lot subdivisions in medium or medium-high density multifamily zones have an average density of61 dwelling units per acre. While this density is lower than the maximum density allowed for in these zones, it is substantially higher than the eight-unit-per- acre density in single-fimily zones in the City ofLos Angeles. Local ordinances and eflons notwithstanding, under the SMA, creating higher density small lot homes on undeveloped parcels typically requires a developer t0 go through a two-step tentative and final map process before construction can proceed. This is the case even if the small lot homes would achieve the same density as a multifamily dwelling complex built on the same existing parcel. For example, a one acre parcel in an area zoned for a density 0f 20 units per acre could be used to create a 20 unit apartment complex. However, to develop small lot homes at the same density on that parcel, the SMA requires a developer to first apply for a tentative and final map to create 20 separate lots before small lot homes can be built. This bill seeks to streamline the subdivision process under the SMA by permitting jurisdictions to allow subdivisions designed t0 create small lot homes that comply with objective requirements to use a single-step parcel map approval process. Tentative andParcel Maps. For large subdivisions (five parcels 0r more), a city is required t0 issue a tentative and final map. Tentative maps are discretionary actions and cities may attach conditions to the map prior to approval Once a developer meets the requirements ofa tentative map, a final map will be issued. For smaller subdivisions, a parcel map may be issued, which allows for a simpler one-step process. A parcel map does not require the issuance of a tentative map. However, under the SMA, local governments may require a tentative map in connection with aparcel map. This makes the issuance of a parcel map a two-step process and more similar to the tentative and final map process required for larger subdivisions. This bill seeks t0 streamline the subdivision process for small lot subdivisions that are less than five acres in size by: a) Extending the parcel map process t0 small lot subdivisions that would otherwise be required to obtain a tentative and final map; and, b) Making the issuance of a parcel map for a small lot subdivision a one-step ministerial process for small lot subdivisions that meet the objective criteria in the bilL The objective standards that a subdivision must meet under the bill are designed to ensure that small lot subdivisions are only eljglble for a one-step ministerial parcel map if they include certain attributes that protect low-income households, the environment, and cultural resources. These criteria include requirements that the parcel t0 be subdivided: a) Is an urban infill project; 6) AB 3234 Page 8 b) Does not involve the elimination 0f 10w income or deed restricted housing; c) Meets maximum size requirements; and d) Does not disturb historic or Tubal Cultural Resources. These provisions efi‘ectively limit the applicability of the bill t0 urban infill areas where the suppofiing infiastructure improvements that are nonnally required in the subdivision process already exist. In addition t0 meeting these criten'a, a small lot subdivision is only elimble for the streamlined parcel map process provided for in the bill if the city or county where the land will be subdivided elects to adopt a small lot ordinance that incorporates the provisions ofthis bill. Overlapping Provisions in the SMA and the HAA. The SMA requires a city or county to disapprove tentative and parcel maps, if the proposed subdivision does not meet specified criten'a. The listed criteria includes objective standards as well as standards that may be subjective in nature, including Whether the site is “physically suitable” for the development. In efiect, if the city or county finds that a development is not physically suitable, under the SMA, it must disapprove the tentative or parcel map, efiectively denying any project that is contingent upon the map approval. In contrast, under the provisions ofthe HAA, When a proposed housing development project complies with applicable, objective general plan, zoning, and subdivision standards and criteria in eflect at the time that the housing development project’s application is completed, a city or county can only disapprove the project if the local agency makes a finding that project will have a “specific adverse impact” and that there is no feasible method to mitigate or avoid the adverse impact. “Specific adverse impact” means a significant, quantifiable, direct, and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date the application was deemed complete. Efiectively under the HAA, subjective standards cannot be a basis for denial of a housing development project. While the SMA requires a local government to disapprove atentative 0r parcel map that is not physically suitable, the HAA prohibits a local government fiom disapproving ahousing development project based on subjective standards. Whether a site is “physically suitable” is not necessarily an objective standard, creating a potential conflict in how these two laws are implemented when ahousing development project requires atentative or parcel map. This ambiguity regarding the predominance 0f the SMA 0r the HAA has led to litigation between developers and local govemment. See: Eden Housing, Inc. v. Town ofLos Gatos, County of Santa Clara Superior Court, Case No. 16CV300733, and Honchariw v. County ofStanislaus (201 1) 200 Cal. App. 4‘“ 1066. Ofnote, the County of Stanislaus denied a housing development project on the grounds that the site was not physically suitable and therefore must be denied under provisions ofthe SMA. The County of Stanislaus argued that unless and until the County Board of Supervisors makes all of the findings required under the SMA, then the written findings that must be made pursuant to the HAA in order t0 deny a project are not required. In Honchariw v. County QfStanislaus, the court found otherwise and held that a finding that a project is not approvable under the SMA does not relieve a city 0r county from compliance with the HAA for housing development projects. 7) 8) 9) AB 3234 Page 9 While the coun held that the County did not proceed in the manner required by law by denying the approval without making the findings 0f the HAA, or otherwise demonstrating that the project violated objective standards, the court did not specifically define "objective" for purposes 0f compliance with the HAA. However, while reviewing the history of the HAA, the court explained it had been "amended to strengthen the law by taking away an agency's ability to use what might be called a 'subiective' development 'policy' (for example, 'suitability')..." supporting the idea that that physical suitability is not an objective standard. Last year, SB 330 (Skinner), Chapter 654, Statutes of 2019, amended the HAA to define, until 2025, "objective" as "involving 110 personal or subjective iudgment by apublic oficial and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the development applicant or proponent and the public oficial." This bill seeks to resolve statutory ambiguity between the SMA and the HAA. The bill amends the SMA to clarify that a tentative 0r parcel map for a housing development project, as defined under the HAA, can only be disapproved on the basis ofobjective findings that are consistent with the HAA. RelatedLegislafion. This bill includes provisions that are substantially similar to provisions in AB 2666 (Boemer Horvath) and AB 3 155 (Robert Rivas), which were referred to the Housing and Community Development Committee. Should all three bills move forward, the authors should work to resolve any overlapping 0r conflicting provisions in their legislation. Committee Amendments. The Committee may wish to consider a number oftechnical amendments t0 the bill: a) The author and sponsor intend for the provisions streamlining the subdivision process to only be applicable in a city or county that opts-in to the provisions ofthe bill by adopting an ordinance. In the bill’s amendments to Government Code Sections 6641 1.1, 66426, and 66428, it is not entirely clear that the streamlined provisions are only applicable in a city orcounty that adopted an ordinance. The Committee may wish to consider an amendment to those sections clarifying that the streamlined SMA provisions are only applicable in a city 0r county that adopts an ordinance pursuant to proposed Section 66462.1. b) The language includes an elroneous reference t0 a nonexistent section of the Government Code (Section 65913.6). The Committee may wish to consider an amendment removing this reference from the bill. Arguments in Support. The American Planning Association, California Chapter (APA California) writes, “AB 3234 allows local jurisdictions to create ordinances to review and approve small lot subdivision developments that would receive a streamlined, ministerial approval. Specifically, these developments would require only a parcel map if the development is located 0n an infill site, is zoned for single-family, multi-family ormixed-use and is no larger than five acres. The bill also sets reasonable restrictions on minimum and maximum lot size square footage and parking requirements calibrated to ensure reasonable densities and compact development to promote lower cost construction and home ownership opportunities. Importantly, the bill also applies anti-displacement protections and protections for historical and tribal cultural resources. APA California believes that the streamlined AB 3234 Page 10 approval of small lot developments will encourage expedited housing development that Californians desperately need. Encouraging streamlining ofdevelopments With smaller lots creates a path t0 produce higher density, smaller units that are intended to be more afiordable by design. .. “Under existing law, a local jurisdiction may not approve a tentative map or parcel map unless it makes specified findings, including some findings that are not objective. However, a court ofappeal decision - Honchariw V. County of Stanislaus (201 1) 200 CaLApp.4th 1066 - ruled that Map Act findings that are not objective cannot be used to deny a project under the HAA. This leaves public agencies in an impossible situation when it feels that subjective Map Act criteria has not been met: approve the project under the HAA in violation of the Map Act, 0r deny the project as required by the Map Act in violation ofthe HAA. “AB 3234 Will make the traditional Map Act findings inapplicable to residential subdivisions. Instead, the bill would replace those findings with objective standards for residential development projects, including that the proposed map is consistent With objective standards contained in applicable general plan, specific plans and all applicable zoning and design review standards. This amendment would hannonize the Map Act’s requirements with the HAA, filrther advancing the state’s goal ofpromoting housing development for all” 10) Arguments in Opposition. None on file. REGISTERED SUPPORT / OPPOSITION: Support American Flaming Association, California Chapter [SPONSOR] Bay Area Council California Association of Realtors California Building Industry Association California Community Builders California YIMBY Opposition None on file Analysis Prepared by: Hank Brady /L. GOV. / (916) 319-3958 Exhibit H2 47 AB 3234 Page 1 Date of Hearing: June 2, 2020 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 3234 (Glon'a) - As Amended May l8, 2020 Policy Committee: Local Government Vote: 8 - 0 Urgency: N0 State Mandated Local Program: Yes Reimbursable: No SUMMARY: This bill authorizes cities and counties to adopt small lot ordinances, exempt fiom CEQA, to create small lot subdivisions 0n infill sites less than five acres in size that meet celtain requirements. This bill also aligns Subdivision Map Act (SMA) approval oftentative and parcel maps for housing development projects with provisions ofthe Housing Accountability Act. FISCAL EFFECT: No state costs. Certain provisions 0f this bill are optional for cities and counties and are therefore, not reimbursable by the state. Other provisions may result in state mandated local costs, but these costs are not reimbursable by the state because local agencies have the authority to levy fees to cover these costs. COMMENTS: 1) Purpose. This bill seeks t0 encourage development 0f small lot homes by allowing cities and counties t0 adoptlocal ordinances, exempt fiom CEQA, that streamline the subdivision process for small lot subdivisions and meet certain objective standards. According to the author: [This bill] establishes an opt-in small lot subdivision fiamework for local agencies t0 consider adopting. The fiamework limits the number of improvements an agency may impose upon a subdivided parcel while ensuring this time-certain process is limited t0 urban infill areas where the supporting infiastructure aheady exists. By ploviding housing development project ploponents the needed certainty When consideling whether to subdivide a paxcel, this bill maintains local control of planning decisions while helping t0 spur the production 0f desperately needed housing units. 2) Background. The SMA establishes a statewide regulatory fi'amework for controlling the subdividing ofland. Cities and counties approve tentative maps that are consistent With their genera] plans, typically attaching numerous conditions. Once subdividers comply With those conditions, local oflicials must issue final maps. Forsmaller subdivisions the conditions local governments can require is limited and local officials issue parcel maps rather than tentative and final maps. Parcel maps may be approved through a one-step discretionary process. AB 3234 Page 2 Under the SMA, creating higher-density small lot homes on undeveloped parcels typically requires a developer to go through a two-step tentative and final map process before construction can proceed, even if the small lot homes would achieve the same density as a multifimily dwelling complex built on the same existing parcel This bill allows subdivisions designed to create small lot homes that comply with objective requirements to use a single-step parcel map approval process. 3) RelatedLegislation. This bill includes provisions that are substantially similar to provisions in and AB 3155 (R. Rivas), ofthis legislative session. AB 3155 is pending hearing in this committee. Should both bills move forward, the authors should work to resolve any overlapping 0r conflicting provisions. Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081 Exhibit H3 48 AB 3234 Page 1 ASSEMBLY THIRD READING AB 3234 (Ting) As Amended August 3, 2020 Majority vote SUMMARY: Creates a court-initiated misdemeanor diversion program and lowers the minimum age limitation for the Elderly Parole Program t0 inmates who are 50 years of age and who have sewed a minimum 0f 20 years. Major Provisions l) Authorizes a superior court judge to ofi'er diversion to a person charged with a misdemeanor over the objection ofa prosecuting attorney. 2) Provides that a judge may continue a divened case for a period not t0 exceed 24 months and order the defendant t0 comply with terms, conditions, 0r programs that the judge deems appropriate based on the defendant's specific situation. 3) States that if the defendant has complied with the imposed terms and conditions, at the end 0f the diversion period, the judge shall dismiss the action against the defendant. 4) Requires the court t0 provide the defendant notice and hold a hearing t0 determine Whether criminal proceedings should be reinstated if it appears t0 the court that the defendant is not complying with the terms and conditions of diversion. If the court finds that the defendant has not complied with the tenns and conditions 0f diversion, the court may end the diversion and order resumption 0fthe criminal proceedings. 5) Provides that in order for a defendant who is diverted pursuant to this provision to have their action dismissed, the defendant must complete all conditions ordered by the court, make fill] restitution, and comply With any court-ordered protective order, stay-away order, 0r order prohibiting firearm possession. However, a defendant's inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed t0 comply with the terms of diversion. 6) States that upon successfill completion ofthe court-ordered terms, conditions, or programs 0f diversion, the alrest upon which diversion was imposed shall be deemed to never have occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested. 7) Prohibits, without the defendant's consent, using a record pertaining t0 an arrest resulting in successfill completion of diversion in any way that could result in the denial 0f any employment, benefit, license, 0r certificate. 8) Requires that the defendant be advised that, regardless of their successfill completion of diversion, the arrest 0n which the diversion was based may be disclosed by the Department of Justice in response to a peace oficer application request and that, notwithstanding the foregoing provisions, the defendant is not relieved of the obligation t0 disclose the alrest in response to a direct question contained in a questionnaire 0r application for a position as a peace oficer, as defined. AB 3234 Page 2 9) Lowers the minimum age limitation for the Elderly Parole Program t0 inmates who are 50 years of age instead of 60 years 0f age and who have served a minimum of 20 years of continuous incarceration instead 0f a minimum of25 years 0f continuous incarceration. 10) Provides that by December 31, 2022, the board shall complete all elderly parole hearings for individuals who were sentenced to determinate or indeterminate terms and who, on the efl‘ective date ofthe bill that added this subdivision, are 0r Will be entitled t0 have their parole suitability considered at an elderly parole hearing before January 1, 2023. COMMENTS: Diversion as Compared t0 Deferred Entry ofJudgment Existing law pelmits pretrial and posttrial diversion programs. (Penal Code, Section 1001.) The latter is typically referred t0 as deferred entry ofjudgment (DEJ). Pre-trial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. The defendant must successfillly complete aprogram orother conditions imposed by the court. If adefendant does not successfully complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed to trial or enter a plea. If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that they have never been arrested or charged for the diverted oflense. With DEJ, a defendant must enter a guilty plea and entry ofjudgment on the defendant's guilty plea is deferred pending successfiJI completion 0f a program or other conditions. Ifa defendant placed in a DEJ program fails t0 complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced. This bill contemplates apre-m'al diversion program Accordingly, the proposed Committee amendments replace language that would apply to a defen‘ed-entry ofjudgment program and replace it with language applicable to a diversion program General Misdemeanor Diversion There are multiple diversion programs under existing law, including one for misdemeanors generally. (Penal Code, Section 100] et. seq.) The Legislature has authorized the prosecution to approve a local misdemeanor diversion program (See Penal Code, Sections 1001-10019, 1001.50-1001.55.) N0 program can continue without the approval 0f the prosecution. And 110 person can be diverted under a diversion program unless it has been approved by the prosecution. (Pen. Code, Sections 1001.2, subdivision (b), 1001.50, subdivision (b); People v. Marroquin (2017) 15 Cal.App.5th Supplement 1, 37 ["the Legislature has not conferred 'a general grant 0f authority to trial courts to grant diversion t0 a defendant, outside a diversion program mandated by the state or by local government, and over the objection ofthe prosecuting attorney .' [citation omitted].) However, the prosecution is not authorized t0 detelmine whether a palticular defendant shall be divelted. (Penal Code, Section 1001.2.) Existing misdemeanor diversion has anumber ofexclusions. (Pen. Code, Section 1001.51, subdivision (0).) Misdemeanor oifenses ineliglble for diversion include those which require AB 3234 Page 3 registration as a sex ofiender and involve use of force other than simple assault and battery Also ineligible are ofi‘enses for Which probation is prohlbited and for Which incarceration is mandatory, as well as certain Vehicle Code ofienses. (Ibid.) There are also requirements in order t0 be eligible, including that the defendant has not been granted misdemeanor diversion Within five years 0f the current charges filed, the defendant has never been convicted of a felony or convicted 0f a misdemeanor within the preceding five years, and the defendant has never had their probation or parole revoked without thereafter successfijlly completing it. (Penal Code, Section 1001.51, subdivision (a).) This bill would create a court-initiated misdemeanor diversion program A superior court judge would be authorized to divert a misdemeanor defendant over the objection ofthe prosecution. Unlike existing general misdemeanor diversion, this bill would have no statutory requirements for the defendant to satisfy in order to be eliglble nor would any misdemeanors be statutorily excluded. Whether 0r not to divert a misdemeanor defendant would be in the tn'al court's discretion. However, judicial discretion is not without limits. "[A]11 exercises of legal discretion must be grounded in reasoned judgment and guided by legal pn'nciples and policies appropriate t0 the palticular matter at issue." (People v. Russel (1968) 69 Ca1.2d 187, 195.) A trial coult abuses its discretion when it exceeds the bounds ofreason, all ofthe circumstances before it being considered. (Id., at p. 194.) Elderly Parole Program In response t0 the Three-judge Court order to reduce the pfison population (Coleman v. Brown (ED Cal Feb. 10, 2014, No. 2:90-cv-0520 LKK DAD (PC), No. C01-1351 THE) 2014 U.S. Dist. Lexis 86855), the California Depanment ofCOITections and Rehabilitation "implement[ed] a new parole process whereby inmates Who are 60 years 0f age 0r older and have sewed a minimum 0f twenty-five years oftheir sentence [are] referred to the Board ofParole Hearings (BPH) to determine suitability for parole." The program does not apply to inmates who are sentenced to death or life without the posstbility ofparole. (httpsf/wwwcdcnca.gov/bph/elderly- parole-hearings-overview/ [as of 8/4/2020].) In 2017, the Legislature passed AB 1448 (Weber), Which established the Elderly Parole Program to be administered by the BPH. (Penal Code, Section 3055.) Under the Elderly Parole Program, inmates Who are 60 years of age or older and have served 25 years of continuous incarceration 0n their current sentence are to have their parole suitability considered. (Penal Code, Section 3055, subdivision. (a).) This program does not apply t0 a prisoner who has been sentenced under the "Three Strikes" Law, who has been sentenced to life in prison without the possibility 0f parole or death, or who has been convicted 0f first-degree murder 0f a peace oficer, as specified. (Penal Code, Section 3055, subdivision. (g) & (h).) When considering release 0f an inmate, the BPH must "give special consideration to whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate's risk for fiJture violence." (Penal Code, Section 3055, subdivision. (c).) This bill would lower the minimum age limitation for the Elderly Parole Program under Penal Code section 3055 to inmates Who are 50 years 0f age instead of 60 years 0f age and who have sewed a minimum of20 years of their sentence instead of a minimum of 25 years 0f their sentence. This bill would also require that by December 31, 2022, the BPH complete all elderly parole hearings for individuals who, 0n the efiective date ofthis bill, are or Will be entitled to have their parole suitability considered before Janualy 1, 2023. AB 3234 Page 4 According t0 the Author: "AB 3234 provides judges With the discretion t0 provide diversion to individuals charged with misdemeanors they deem appropriate for such aprogram. Diversion programs that are successfillly completed allow a person t0 avoid the lifelong collateral consequences associated With a criminal record when they are seeking employment 0r housing. Diversion programs typically require individuals t0 fulfill stn'ct requirements, including participating in a rehabilitation program This proactive approach has shown t0 yield better recidivism rates than merely prosecuting and jailing an individuaL "AB 3234 also changes the age for elderly parole eliglbih'ty fiom 6O to 50 and time served flom 25 to 20 years. This bill only allows for the opportunity to g0 to the parole board-it is not automatic release. The bill excludes strikers and estimates fiom Board of Parole Hearings show that of the total prison population, fewer than 240 individuals would have the opportunity to have a hearing and based on average grant rates, fewer than 50 people would even likely be released. The cunent Covid-19 pandemic requires thoughtfill and urgent measures to reduce the risk of harm inside the state's prisons. This provides a deliberative process with safeguards for consideration for release for this high risk population. " Arguments in Support: According to Califomians for Safety and Justice, "While reforming elderly parole in this manner always makes sense, there has never been a more pressing time to expand and expedite elderly parole: COVID-19 is ripping through our prisons, with elderly people being the most vuhlerable to serious medical consequences, including death. The vims also increases the need for space in our prisons t0 efiectively quarantine, making every safe release an impofiant step toward containing and mitigating the virus. Given the evidence ofsignificant costsavings, positive public safety outcomes, and the increased risk ofserious illness or even death due to the pandemic, these commonsense reforms t0 elder parole are not only critical but Will result in saving anumber oflives. "Incarceration and prosecution are intensely traumatic and damaging processes that harm individuals, families and communities, and ofien increase recidivism and exacerbate the underlying causes of cfime. Judge-granted diversion is a tool that can reduce the direct and collateral consequences ofmass incarceration and prosecution and promote racial justice in our cn'minal legal system. AB 3234 also decreases the taxpayer cost oftraditional cn'minal case proceedings, while increasing accountability through rigorous rehabilitative programing, encouraging familial relationships and growth by avoiding familial separation that occurs with incarceration, and making us all safer by reducing recidivism. " Arguments in Opposition: According t0 the California District Attorneys Association, "[T]he key provisions 0fthis bill have been lifted fiom AB 88, the Public Safety Trailer bill which CDAA and Cal Chiefi opposed - and Which was pulled from the floor before it could be voted on - in large measure because of the provisions that are now the thrust ofAB 3234. 'The bill is based 0n an LA County pilot program, AB 2124 fiom 2014, which expired in 2018. That pilot program applied generally to first time ofiendel‘s and included multiple exclusions - including sex crimes, DUIs, weapons charges, crimes against elders and minors, including AB 3234 Page 5 possession 0f child pornography and annoying 0r molesting a child, weapons charges, defendants who had prior diversion and defendants with prior Violence Within the last 10 years. "I'he bill also includes language fiom the rejected budget trailer bill that changes the Elderly Parole Program Cun‘ently, the bill authorizes areview ofthe parole suitability of inmates Who are 60 years 0f age or older and who have served a minimum of 25 years of continuous incarceration. Under the terms of this proposal elderly would now be considered 50 years 0f age and available to an inmate Who had served 20 years 0f continuous incarceratio n. "If given a little more time than has been available under the dramatically accelerated healing 0f this bill, CDAA could cite hundreds 0f examples of dangerous and violent criminals who committed heinous cn'mes afier age 50." FISCAL COMNIENTS: Unknown. VOTES: . ASM LOCAL GOVERNMENT: Vote not relevant YES: ASM APPROPRIATIONS: Vote not relevant YES: ASSEMBLY FLOOR: Vote not relevant YES: N0: ABS, ABST OR NV: ASM PUBLIC SAFETY: 5-3-0 YES: Jones-Sawyer, Kamlager, Quirk, Santiago, Mark Stone NO: Lackey, Bauer-Kahan, Diep UPDATED: VERSION: August 3, 2020 CONSULTANT: Cheryl Anderson/PUB. S. /(916) 319-3744 FN: 0003172 Exhibit H4 49 AB 3234 Page 1 (Without Reference t0 File) ASSEMBLY THIRD READING AB 3234 (Ting) As Amended August 24, 2020 Majority vote SUMMARY: Creates a court-initiated misdemeanor diversion program and lowers the minimum age limitation for the Elderly Parole Program to inmates who are 50 years 0f age and Who have sewed a minimum 0f 20 years. Major Provisions 1) Authorizes a superior court judge to ofier diversion to a person charged with a misdemeanor over the objection 0f a prosecuting attomey, except that a defendant may not be ofiered diversion for any 0f the following currently charged ofienses: a) Any ofiense for which a person, if convicted, would be required t0 register as a sex ofiender; b) A domestic violence oflense - i.e., the willful infliction of corporal injury resulting in a traumatic condition upon a spouse, a person With whom the defendant is cohabiting, a person who is the parent 0f the defendant's child, former spouse, former cohabitant, fiancé 0r fiancee, or a person with whom the defendant currently has, 0r has previously had, a dating or engagement relationship; c) A domestic battery ofiense - 'Le., battery against a spouse, a person with whom the defendant is cohabiting, a person who is the parent 0f the defendant's child, former spouse, fiancé or fiancee, or a person with Whom the defendant currently has, or has previously had, a dating or engagement relationship; and, d) Stalking. 2) Provides that a judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, 0r programs that the judge deems appropriate based on the defendant's specific situation. 3) States that if the defendant has complied with the imposed terms and conditions, at the end of the diversion period, the judge shall dismiss the action against the defendant. 4) Requires the court to provide the defendant notice and hold a hearing to determine whether criminal proceedings should be reinstated if it appears t0 the coult that the defendant is not complying with the terms and conditions of diversion. Ifthe court finds that the defendant has not complied with the terms and conditions 0f diversion, the court may end the diversion and order resumption ofthe criminal proceedings. 5) Provides that in order for a defendant who is diverted pursuant to this provision to have their action dismissed, the defendant must complete all conditions ordered by the court, make full restitution, and comply with any court-ordered protective order, stay-away order, or order AB 3234 Page 2 prohlbiting fireatm possession. However, a defendant's inability to pay restitution due to indigence shall not be grounds for denial of diversion 0r a finding that the defendant has failed to comply with the terms of diversion. 6) States that upon successfill completion ofthe court-ordered terms, conditions, 01‘ programs 0f diversion, the arrest upon which diversion was imposed shall be deemed to never have occurred. The defendant may indicate in response t0 any question concerning their prior criminal record that they were not arrested. 7) Prohlbits, without the defendant‘s consent, using arecord pertaining to an arrest resulting in successfifl completion 0f diversion in any way that could result in the denial 0f any employment, benefit, license, or certificate. 8) Requires that the defendant be advised that, regardless 0f their successfifl completion of diversion, the arrest on which the diversion was based may be disclosed by the Department ofJustice in response to a peace oficer application request and that, notwithstanding the foregoing provisions, the defendant is not relieved of the obligation to disclose the arrest in response t0 a direct question contained in a questionnaire 0r application for a position as a peace oficer, as defined. 9) Lowers the minimum age limitation for the Elderly Parole Program to inmates Who are 50 years ofage instead 0f 60 years of age and who have served a minimum of 20 years of continuous incarceration instead of a minimum 0f 25 years ofcontinuous incarceration. 10) Provides that by December 31, 2022, the board shall complete all elderly parole hearings for individuals who were sentenced to determinate or indeterminate terms and who, 0n the efiective date 0fthe bill that added this subdivision, are 0r will be entitled to have their parole suitability considered at an elderly parole hearing before January 1, 2023. COMMENTS: Diversion as Compared to Deferred Entry ofJudgment Existing law permits pretrial and posttrial diversion programs. (Penal Code Section 1001.) The latter is typically referred t0 as deferred entry ofjudgment (DEJ). Pre-trial diversion suspends the criminal proceedings without requiring the defendant to enter a plea. The defendant must successfillly complete a program or other conditions imposed by the court. If a defendant does not successfiflly complete the diversion program, criminal proceedings resume but the defendant, having not entered a plea, may still proceed t0 trial 0r enter a plea. If diversion is successfillly completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that they have never been arrested or charged for the diverted oflense. With DEJ, a defendant must enter a guilty plea and entry ofjudgment on the defendant‘s guilty plea is deferred pending successfill completion ofa program or other conditions. If a defendant placed in a DE] program fails t0 complete the program or comply with conditions imposed, the court may resume criminal proceedings and the defendant, having already pleaded guilty, would be sentenced. AB 3234 Page 3 This bill contemplates apre-trial diversion program Accordingly, the proposed Committee amendments replace language that would apply to a deferred-entry ofjudgnent program and replace it With language applicable t0 a diversion program General Misdemeanor Diversion There are multiple diversion programs under existing law, including one for misdemeanors generally. (Penal Code Section 1001 et. seq.) The Ltgislature has authorized the prosecution t0 approve a local misdemeanor diversion program. (See Penal Code Sections 1001 -1001 .9, 1001 .50-1001 .55) No program can continue Without the approval of the prosecution. And n0 person can be diverted under a diversion program unless it has been approved by the prosecution. (Penal Code Sections 1001.2(b), 1001.50(b); People v. Marroquin (2017) 15 CaLApp.5th Supplement 1, 37 ["the Legislature has not conferred 'a general grant 0f authority to trial courts to grant diversion t0 a defendant, outside a diversion program mandated by the state 0r by local government, and over the objection ofthe prosecuting attorney .' [citation 0mitted].) However, the prosecution is not authorized t0 determine Whether a particular defendant shall be diverted. (Penal Code Section 1001.2) Existing misdemeanor diversion has anumber ofexclusions. (Penal Code Section 1001.51(c)) Misdemeanor ofienses ineligible for diversion include those which require registration as a sex oflender and involve use of force other than simple assault and battery Also ineligible are ofienses for which probation is prohibited and for which incarceration is mandatory, as well as celmm Vehicle Code oflenses. (1bia’.) There are also requirements in order t0 be eliglble, including that the defendant has not been granted misdemeanor diversion within five years ofthe culrent charges filed, the defendant has never been convicted of a felony or convicted of a misdemeanor Within the preceding five years, and the defendant has never had their probation 01‘ parole revoked without thereafter successfillly completing it. (Penal Code Section 1001.51(a)) This bill would create acouIT-initiated misdemeanor diversion program Asuperior court judge would be authorized to divelf a misdemeanor defendant over the objection 0fthe prosecution. Unhke existing general misdemeanor diversion, this bill would have n0 statutory requirements for the defendant t0 satisfy in order t0 be eliglble nor would any misdemeanors be statutorily excluded. Whether ornot to divelt a misdemeanor defendant would be in the trial court's discretion. However, judicial discretion is not without limits. "[A]1l exercises oflegal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 CaLZd 187, 195.) A trial coufl abuses its discretion when it exceeds the bounds ofreason, all of the circumstances before it being considered. (Id., at p. 194.) Elderly Parole Program In response to the Three-judge Court order to reduce the prison population (Coleman v. Browu (ED Cal. Feb. 10, 2014, N0. 2:90-cv-0520 LKK DAD (PC), No. C0] -1351 THE) 2014 U.S. Dist. Lexis 86855), the California Department of Corrections and Rehabilitation "implement[ed] a new parole process whereby inmates who are 60 years of age or older and have served a minimum of twenty-five years of their sentence [are] referred to the Board ofParole Hearings (BPH) t0 determine suitability for parole.” The program does not apply t0 inmates who are sentenced t0 death or life without the possibility ofparole. (httsz/www.cdcr.ca.gov/bph/elderly- parole-hearings-overview/ [as of 8/4/2020].) AB 3234 Page 4 In 20] 7, the Legislature passed AB 1448 (Weber), Chapter 676, Which established the Elderly Parole Program t0 be administered by the BPH. (Penal Code Section 3055) Under the Elderly Parole Program, inmates who are 60 years of age or older and have sewed 25 years 0f continuous incarceration 0n their current sentence are to have their parole suitability considered. (Penal Code Section 3055(a)) This program does not apply to a prisoner Who has been sentenced under the "Three Strikes" Law, who has been sentenced t0 life in prison without the possibility ofparole or death, or who has been convicted of first-degree murder 0f a peace oficer, as specified. (Penal Code Section 3055(g) and (h)) When considering release ofan inmate, the BPH must "give special consideration t0 whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate's risk for fi1t11re Violence." (Penal Code Section 3055(0)) This bill would lower the minimum age limitation for the Elderly Parole Program under Penal Code section 3055 to inmates who are 50 years of age instead of 60 years 0f age and who have sewed a minimum of20 years of their sentence instead of a minimum 0f 25 years of their sentence. This bill would also require that by December 31, 2022, the BPH complete all elderly parole hearings for individuals who, on the efiective date ofthis bill, are or will be entitled t0 have their parole suitability considered before January 1, 2023. According t0 the Author: "AB 3234 provides judges with the discretion to provide diversion to individuals charged with misdemeanors they deem appropriate for such a program Diversion programs that are successfixlly completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment 0r housing. Diversion programs typically require individuals to fillfill strict requirements, including participating in a rehabilitation program. This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual. "AB 3234 also changes the age for elderly parole eliglbility from 60 to 50 and time served from 25 t0 20 years. This bill only allows for the opportunity t0 g0 t0 the parole board-it is not automatic release. The bill excludes stnkers and estimates from Board 0f Parole Hearings show thag of the total prison population, fewer than 240 individuals would have the opportunity t0 have a hearing and based on average grant rates, fewer than 50 people would even likely be released. The cunent C0vid-19 pandemic requires thoughtfill and urgent measures to reduce the risk 0f harm inside the state's prisons. This provides a deliberative process With safeguards for consideration for release for this high risk population." Arguments in Support: According t0 Californians for Safety and Justice, "While reforming elderly parole in this manner always makes sense, there has never been a more pressing time to expand and expedite elderly parole: COVID-l9 is ripping through our prisons, with elderly people being the most vulnerable to serious medical consequences, including death. The Virus also increases the need for space in our prisons to efiectivelv quarantine, making every safe release an important step toward containing and mitigating the Virus. Given the evidence ofsignificant costsavings, positive public safety outcomes, and the increased risk of serious illness 0r even death due t0 the pandemic, these commonsense ref01ms to elder parole are not only critical but Will result in saving anumber oflives. AB 3234 Page 5 "Incarceration and prosecution are intensely traumatic and damaging processes that harm individuals, families and communities, and often increase recidivism and exacerbate the underlying causes 0f crime. Judge-granted diversion is a tool that can reduce the direct and collateral consequences ofmass incarceration and prosecution and promote racial justice in our criminal legal system AB 3234 also decreases the taxpayer cost 0ftraditi0nal criminal case proceedings, while increasing accountability through rigorous rehabilitative programming, encouraging familial relationships and growth by avoiding familial separation that occurs with incarceration, and making us all safer by reducing recidivism." Arguments in Opposition: According t0 the California District Attorneys Association, "[T]he key provisions 0fthis bill have been lifted fiom AB 88, the Public Safety Trailer bill which CDAA and Cal Chiefs opposed - and which was pulled fi‘om the floor before it could be voted on - in large measure because 0f the provisions that are now the thmst 0f AB 3234. 'The bill is based on an LA County pilot program, AB 2124 from 2014, Which expired in 2018. That pilot program applied generally to first time oflenders and included multiple exclusions - including sex crimes, DUIs, weapons charges, crimes against elders and minors, including possession 0f child pornography and annoying 01’ molesting a child, weapons charges, defendants who had prior diversion and defendants With prior Violence within the last 10 years. [...] "The bill also includes language fiom the rejected budget trailer bill that changes the Elderly Parole Program Currently, the bill authorizes areview ofthe parole suitability of inmates who are 60 years of age 0r older and who have sewed a minimum of25 years 0f continuous incarceration. Under the terms ofthis proposal elderly would now be considered 50 years 0f age and available t0 an inmate who had sewed 20 years of continuous incarceration. "If gven a little more time than has been available under the dramatically accelerated hearing of this bill, CDAA could cite hundreds of examples ofdangerous and Violent criminals Who committed heinous crimes afier age 50." FISCAL COMMENTS: None. VOTES: ASM LOCAL GOVERNMENT: 8-0-0 YES: Agujar-Curry, Lackey, Bloom, Boerner Horvath, Ramos, Luz Rivas, Robert Rivas, Voepel ASM APPROPRIATIONS: 18-0-0 YES: Gonzalez, Bigelow, Bauer-Kahan, Bloom, Bonta, Calderon, Calrillo, Chau, Megan Dahle, Diep, Eggman, Fong, Gabriel, Eduardo Garcia, Petrie-Nonis, McCarty, Robelt Rivas, Voepel ASSEMBLY FLOOR: 40-18-21 YES: Aguiar-Curry, Arambula, Bennan, Bloom, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Eggman, Friedman, Cristina Garcia, Eduardo Garcia, Gipson, Glon'a, Gonzalez Holden, Jones- AB 3234 Page 6 Sawyer, Kalra, Kamlager, Levine, Limén, McCarty, Medina, Mullin, Namn'an, O'Donnell, Quirk, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Mark Stone, Ting, Weber, Wood, Rendon NO: Bigelow, Brough, Chen, Choi, Cunningham, Megan Dahle, Diep, Flora, Fong, Gallagher, Kiley, Lackey, Mathis, Mayes, Obernolte, Patterson, Petrie-Norris, Qujrk-Silva ABS, ABST OR NV: Bauer-Kahan, Boerner Horvath, Cervantes, Chu, Cooley, Cooper, Daly, Frazier, Gabriel, Gray, Grayson, Irwin, Low, Maienschein, Muratsuchi, Ramos, Salas, Smith, Voepel, Waldron, Wicks ASM PUBLIC SAFETY: 5-3-0 YES: Jones-Sawyer, Kamlager, Quirk, Santiago, Mark Stone N0: Lackey, Bauer-Kahan, Diep UPDATED: VERSION: August 24, 2020 CONSULTANT: Cheryl Anderson / PUB. S. /(916) 3 19-3744 FN: 00033 12 Exhibit H5 50 SENATE RULES COMMITTEE AB 3234 Office 0f Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 THIRD READING Bill No: AB 3234 Author: Ting (D) Amended: 8/24/20 in Assembly Vote: 21 ASSEWLY FLOOR: 43-26, 8/24/20 - See last page for vote SUBJECT: Public Safety SOURCE: Author DIGEST: This bill creates a court-initiated misdemeanor diversion program and lowers the minimum age limitation for the Elderly Parole Program t0 inmates who are 50 years ofage and Who have served a minimum 0f20 years. ANALYSIS: Existing law: 1) Pennits pretrial and post-trial diversion programs. (Penal Code Section 1001.) 2) Establishes the elderly parole, allowing for the review ofparole suitability for any inmate Who is 60 years of age 0r older and has served a minimum of 25 years ofcontinuous incarceration. Section 3055) This bill: 1) Creates a court-initiated misdemeanor diversion program. A superior court judge would be authorized t0 divert a misdemeanor defendant over the objection ofthe prosecution. Unlike existing general misdemeanor diversion, this bill has no statutory requirements for the defendant t0 satisfy in order t0 be eligible nor would any misdemeanors be statutorily excluded. Whether 0r not t0 divert a misdemeanor defendant would be in the trial court‘s discretion. AB 3234 Page 2 2) Provides that the following misdemeanors cannot be diverted: any offense for Which the defendant would be required to register as a sex offender; domestic Violence; 0r, stalking. 3) Provides that a person may be eligible for parole at the age 0f50 years if they have served a minimum 0f20 years ofcontinuous incarceration. Comments According to the author: AB3234 provides judges with the discretion t0 provide diversion to individuals charged with misdemeanors they deem appropriate for such a program. Diversion programs that are successfully completed allow a person t0 avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment 0r housing. Diversion programs typically require individuals t0 fulfill strict requirements, including pafiicipating in a rehabilitation program. This proactive approach has shown t0 yield better recidivism rates than merely prosecuting and jailing an individual. AB 3234 also changes the age for elderly parole eligibility from 60 t0 50 and time served from 25 t0 20 years. This bill only allows for the opportunity to go t0 the parole board-it is not automatic release. The bill excludes strikers and estimates from Board 0f Parole Hearings show that ofthe total prison population, fewer than 240 individuals would have the opportunity t0 have a hearing and based on average grant rates, fewer than 50 people would even likely be released. The current C0vid-19 pandemic requires thoughtful and urgent measures to reduce the risk 0fharm inside the state's prisons. This provides a deliberative process with safeguards for consideration for release for this high risk population FISCALEFFECT: Appropriation: N0 FiscalCom.: Yes Local: N0 SUPPORT: Werified 8/29/20) California Public Defenders Association Californians for Safety and Justice Ella Baker Center for Human Rights Initiate Justice Smart Justice California Uncommon Law AB 3234 Page 3 OPPOSITION: (Ven'fied 8/29/20) California District Attorneys Association California Police Chiefs Association Crime Victims United ofCalifornia Judicial Council ASSEIVflBLY FLOOR: 43-26, 8/24/20 AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Bonta, Burke, Calderon, Canillo, Chiu, Chu, Daly, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Levine, Limén, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Reyes, Luz Rivas, Robert Rivas, Blanca Rubio, Santiago, Mark Stone, Ting, Weber, Wood, Rendon NOES: Bigelow, Boerner Horvath, Brough, Cervantes, Chen, Choi, Cooley, Cooper, Cunningham, Megan Dahle, Diep, Flora, Fong, Gallagher, Kiley, Lackey, Maienschein, Mathis, Mayes, Muratsuchi, Patterson, Petrie-Norris, Ramos, Salas, Smith, Voepel NO VOTE RECORDED: Chau, Eggman, Frazier, Gray, Irwin, Obernolte, Quirk- Silva, Rodriguez, Waldron, Wicks Prepared by: Mary Kennedy / PUB. S./ 8/31/20 0:29:06 **** END **** Exhibit I 51 Filed 7/14/21 CERTIFIED FOR PUBLICATION APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES THE PEOPLE, No. BS 175803 Petitioner, Torrance Trial Court V. N0. 0TR04543 THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, Respondent, OPINION BEAU ESPESO, Real Party in Interest. ORIGINAL PROCEEDINGS; petition for writ of mandate. Hon. David K. Reinert, Judge. Petition is granted. Patrick Q. Sullivan, Torrance City Attorney and Brandon J. Gonzaque, Deputy Torrance City Attorney, for Petitioner. Robert S. Emenwein and Michelle A. Mathes of the Law Offices of Robert Emenwein for Real Party in Interest. No appearance for Respondent. Petitioner the People of the State of California requested a writ commanding respondent Los Angeles County Superior Court to vacate its order placing real party in interest Beau Espeso on misdemeanor diversion regarding the charges of driving under the influence of alcohol and driving with a blood-alcohol content of 0.08 percent or above (Veh. Code, § 23152, subds. (a) & (b).) We will issue a writ so ordering. BACKGROUND Real party was charged 0n November 16, 2020, with the above crimes, along with the special allegation that his blood-alcohol cor1-tent was 0.15 percent 0r higher When he drove (Veh. Code, § 23578). While his case was pending, the misdemeanor diversion statute (Pen. Code, § 1001.95)‘ was enacted, effective January 2021. Real party filed a request for respondent to grant diversion under the law, indicating real party was voluntarily participating in an impaired driving education program, and stressing he did not have any other convictions. Petitioner filed an opposition, arguing diversion was not allowed under the statute, and in any event, real party was unsuitable t0 be diverted because, when he drove and was arrested, his blood-alcohol content was 0.22 percent, he lost control of his vehicle, jumped a curb, and destroyed part of a block wall surrounding a residence. On April 6, 2021, respondent found the diversion law applied retroactively, and over petitioner’s objection, detelmined real party was eligible and suitable for diversion. The court granted diversion and continued the matter for 24 months, ordering real party t0 complete court-ordered Alcoholics Anonymous sessions and pay Victim restitution for knocking down the residence wall. Petitioner filed the instant petition for a writ of mandate, requesting we vacate the order granting diversion. On May 19, 202], having determined petitioner’s request appeared to be meritorious, we issued a Palma notice indicating we would dismiss the petition as moot if respondent reconsidered and vacated its order and entered a new order denying diversion. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Ca1.3d 171.) We also indicated that if respondent elected not to reconsider and vacate its order, it was to notify this court and, in that event, real party could file an opposition t0 the issuance of a peremptory writ in the first instance, followed by a reply by petitioner. 'All further statut01y references are to the Penal Code unless othelwise indicated. 2 On May 25, 2021, respondent stated in a minute order that it declined t0 vacate its order granting diversion. Real party filed an opposition, and petitioner filed a reply. DISCUSSION Because there are no issues 0f disputed fact and the case turns on statutory interpretation, we employ de novo review. (People v. Lofchz’e (2014) 229 Ca1.App.4th 240, 250; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1276.) “Our primary objective in interpreting a statute is to determine and give effect t0 the underlying legislative intent. [Citation] Intent is determined foremost by the plain meaning of the statutory language. If the language is clear and unambiguous, there is no need for judicial construction. When the language is reasonably susceptible 0f more than one meaning, it is proper t0 examine a variety of extrinsic aids in an effort t0 discern the intended meaning. We may consider, for example, the statutory scheme, the apparent purposes underlying the statute and the presence (or absence) 0f instructive legislative history. [Citation.]” (City ofBrem‘wood v. Central Valley Regional Water Quality Control Bd. (2004) 123 Cal.App.4th 714, 722.) “‘When interpreting a statute, we endeavor to harmonize it with other enactments to the extent possible.’ [Citations] ‘The law shuns repeal by implication and, if possible, coults must maintain the integrity 0f both statutes.’ [Citation] ‘We presume that the Legislature, when enacting a statute, was aware of existing related laws and intended to maintain a consistent body of rules. [Citation.]’ [Citation.]” (Schelb v. Stein (2010) 190 Cal.App.4th 1440, 1448.) Section 1001.95 provides as follows. (a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion t0 a defendant pursuant to these provisions. (b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant t0 comply with terms, conditions, 0r programs that the judge deems appropriate based 0n the defendant’s specific situation. (c) If the defendant has complied with the imposed terms and conditions, at the end ofthe period 0f diversion, the judge shall dismiss the action against the defendant. (d) If it appears t0 the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court 3 shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption 0f the criminal proceedings. (e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses: (1) Any offense for which a person, if convicted, would be required t0 register pursuant to Section 290 [sex offender registration]. (2) A violation 0f Section 273.5 [inflicting a corporal injury resulting in a traumatic condition upon a domestic Violence Victim]. (3) A violation 0f subdivision (e) of Section 243 [battery on a domestic Violence Victim]. (4) A Violation 0f Section 646.9 [stalking]. The statute was enacted after real party was charged with the misdemeanor offenses. Nonetheless, neither petitioner nor real party maintains the statute was inapplicable. Since the statute provides for a potential ameliorative benefit, we conclude a person charged with a misdemeanor has the right t0 have the court determine if the person is eligible and suitable for a grant 0f diversion so long as the person’s case is not final. (See People v. Frahs (2020) 9 Cal.5th 618, 639; see also In re Estrada (1965) 63 Ca1.2d 740, 744-745.) We agree with petitioner that driving under the influence 0f alcohol is not an offense Which is eligible for misdemeanor diversion. Vehicle Code section 23640, subdivision (a), provides, in relevant part, “In any case in which a person is charged with a Violation of [Vehicle Code] Section 23152 or 23153, . . . the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal 0f or entertain a motion to dismiss the proceedings because the accused person attends 0r participates during that suspension, in any one or more education, training, 0r ’ treatment programs . . . .’ To the extent there is a tension between Vehicle Code section 23640 and the misdemeanor diversion statute, it must be resolved in favor of both statutes being “read together and so construed as t0 give effect, When possible, to all the provisions thereof,” and 4 “all presumptions are against a repeal by implication.” (State Dept. ofPublic Health v. Superior Court (2015) 60 Cal.4th 940, 955-956; see, e.g., Moore v. Superior Court (2020) 58 Cal.App.5th 561, 579 [“[I]fthe Legislature had intended [driving under the influence] defendants to be eligible for pretrial mental health diversion, it would have repealed or amended Vehicle Code section 23640, 0r it would have ‘carve[d] out an exception’ to Vehicle Code section 23640 in Penal Code section 1001.36,” citing Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 447-448.) Acknowledging that Vehicle Code section 23640 and section 1001 .95 are in conflict, real party argues the legislative history 0f section 1001.95 shows an intent t0 repeal Vehicle Code section 23640. As noted by Tellez v. Superior Court, supra, 56 Cal.App.5th at p. 448, a general canon of statutmy construction, such as the one providing repeals by implication are abhon‘ed, may be overcome when the legislative history of a statute shows a clear intention to repeal 0r render inoperative the conflicting law. We conclude real party failed t0 rebut the presumption against a repeal by implication of Vehicle Code section 23640, because the legislative history does not reveal a clear intent. Real party points to transcripts of legislators commenting that driving under the influence would be eligible for diversion When the bill that enacted section 1001 .95 (Assem. Bill No. 3234 (2019-2020 Reg. Sess.)) was debated in September 2020. Real party notes the fact the bill was thereafter enacted without excluding driving under the influence cases from section 1001.95 shows an intent to allow diversion to be granted in these cases. However, even assuming the comments can be relied on regarding legislative intent, a different inference is also possible: namely, that the Legislature, by not specifically stating diversion would be allowed for driving under the influence cases, and/or amending Vehicle Code section 23 640 to carve out an exception for section 1001 .95 diversion intended that no diversion would be granted in misdemeanor driving under the influence cases. (See Moore v. Superior Court, supra, 58 Cal.App.5th at p. 579; Tellez v. Superior Court, supra, 56 Cal.App.5th at pp. 447- 448.) Real party also maintains a pilot program that preceded section 1001 .95 shows a legislative intent to allow diversion to be granted in driving under the influence cases under 5 section 1001.95. Assembly Bill N0. 2124 (2013-2014 Reg. Sess.) enacted a three-year “Deferral 0f Sentencing Pilot Program” which authorized courts in Los Angeles County to grant deferred ently ofjudgment in misdemeanor cases, and the statute specifically excluded driving under the influence cases, along With many other offenses, from being eligible. (See former § 1001 .98, subd. (h)(3).) Real party notes one legislator commented while the bill that enacted Penal Code section 1001.95 was being considered that section 1001.95 diversion was based on the Los Angeles pilot. Rea] party argues that, in contrast With the pilot statute, the fact section 1001 .95 did not exclude driving under the influence shows an intent to allow diversion in section 1001 .95. Yet, even if the pilot was Penal Code section 1001 .95’s predecessor, failing t0 state in section 1001.95 that driving under the influence is excluded does not show an unequivocal intent t0 allow diversion in driving under the influence cases. Real party’s argument is speculative, as the Legislature could have just as easily come t0 the realization that the exclusionary language was unnecessary in light 0f Vehicle Code section 23640. Lastly, real party relies 0n Tellez v. Superior Court, supra, 56 Cal.App.5th at pp. 449- 450, when comparing the mental health diversion law and Penal Code section 1001 .95, commenting, “In 1982, the Legislature enacted two sets 0f statutes providing for misdemeanor diversion programs. (Pen. Code, §§ 1001-1001.9, 1001.50-1001.55 . . . .) When the Legislature did so, it expressly excluded DUI offenses from eligibility. (Pen. Code, §§ 1001 .2, subd. (a), 1001.51, subds. (b), (c)(6).) In View of that history, the Legislature’s failure t0 expressly exclude DUI offenses this time around is a good indicator that it intended DUI offenses to be eligible for the new misdemeanor program.” As the Court 0f Appeal’s holding was confined to determining mental health diversion cannot be granted in driving under the influence cases, the comments were dicta, Which is not binding on us. The Court of Appeal preceded its comments by stating, “We d0 not believe it is clear whether [driving under the influence] offenses are eligible for the new misdemeanor diversion program, and we need not decide the issue.” (Tellez v. Superior Court, supra, 56 Ca].App.5th at p. 449.) Also, the Court of Appeal did not analyze the scope 0f the 1982 diversion statutes, which both require prosecution approval for diversion (see Pen. Code, §§ 1001.2, subd. (b), 1001.50, subd. (b)), 6 and the extent t0 Which the Legislature may have perceived a need t0 highlight that diversion is prohibited due to Vehicle Code section 23640 not specifically stating diversion is barred when the prosecutor consents to a case being diverted. (See People v. Scheid (1997) l6 Cal.4th 1, l7 [“‘an opinion is not authority for a proposition not therein considered”’].) Petitioner acknowledges, after Assembly Bill N0. 3234 was approved by the Legislature, the Governor, in his message signing the bill, stated, in relevant part, “T0 the Members 0f the California State Assembly: [If] I am signing Assembly Bil] 3234, Which would create a court- initiated misdemeanor diversion program . . . . [If] However, I am concerned that the crime of driving under the influence was not excluded from the misdemeanor diversion program. Iwill seek t0 expeditiously remedy this issue with the Legislature in the next legislative session.” ( [as of July 6, 2021].) Even if the Governor’s understanding was that diversion could be granted for driving under the influence cases under the bill he signed, we agree with petitioner the statement does not shed light on whether the Legislature intended to allow diversion in driving under the influence cases. (See Moore v. Superior Court, supra, 58 Cal.App.5th at p. 582, fn. 12; see also Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1196, fn. 7 [“We do not think a Governor’s post hoc signing statement is ordinarily a reliable indication 0f legislative intent”].) Likewise, we find the fact that a bill is currently pending in the Legislature barring coults from granting diversion in driving under the influence cases (Assem. Bill N0. 282 (2021-2022 Reg. Sess.) does not reflect 0n what the Legislature intended in 2020 when it approved legislation failing t0 specify one way or another whether diversion could be granted in these types ofcases. (See Assembly Bill No. 282 (2021-2022 Reg. Sess.) As noted in a legislative committee analysis for the bill, the Legislature was told new legislation was needed to “clarify” whether diversion was allowed in these cases, and to “correct [an] ambiguity in the coum initiated misdemeanor diversion statute enacted by AB 3234 - Whether a misdemeanor DUI offense is eligible for court initiated diversion.” (Assem. Comm. on Public Saf., Analysis ofAssem. Bill N0. 282 (2021-2022 Reg. Sess.) as introduced January 21, 2021, pp. 4-5.) In sum, the Legislature approved a bill in enacting section 1001.95 which was silent on whether misdemeanor diversion can be granted in driving under the influence cases. Against this backdrop, Vehicle Code section 23640, subdivision (a), in crystal clear language, bars diversion in such cases. We cannot discern an intent t0 overcome the rule that “[t]he law shuns repeal by implication” (Schelb v. Stein, supra, 190 Cal.App.4th at p. 1448). We therefore give effect to both statutes, by finding a person is eligible to be considered for a grant 0f diversion in all cases, except the ones specifically listed in section 1001.95, subdivision (e) (cases Where a person must register as a sex offender, domestic violence, and stalking), and driving under the influence cases as provided in Vehicle Code section 23640, subdivision (a). DISPOSITION Let a peremptory writ of mandate issue in the first instance directing respondent to vacate its April 6, 2021 order granting diversion, and enter a new order denying diversion. Ricciardulli, J. We concur: Kumar, Acting P. J. Richardson, J. Exhibit J SUPERIOR COURT 0F CALIFORNIA. COUNTY 0F RIVERSIDE FOR COURT USE ONL V People ofthe State ofCalifornia F fl L E D PIaintiff/Petitioner WWROF a ‘ H ”JUL 2 7 202] vs. x} {CL'I‘QLjE-Ufiko‘tr Defendant/Respondent CASE NUMBER; w LGzosmr fl! Rivrside Superior Court APRI2100009 DOCUMENT COVERSHEET Full Document Title: _ Per curiam 08W”) _ ' (If (Fe dgumgnt is not officially tilled. please provide (he description of wfiét'ifbeing fil'é‘d.) Other File Clerk Notes: _ __ __ _ _ _ Page 1 of 1 allpwmmmvswnnhmanlwhumlrwsnumm3mm 34"" DOCUMENT COVERSHEETmoms [Ram 313113] FHLEID ”mcfiuwni'éfifioem CERTIFIED FOR PUBLICATION JUL 2 7 2021 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE APPELLATE DIVISION THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, APRIZ 100008 v. (Trial Ct. No. INM200341 0) SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, SEBASTIAN ANDRES DIAZ- ARMSTRONG. Real Party in Interest. THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, APRIZ 100009 v, (Trial Ct. No. INM2002 l 8 l) SUPERIOR COURT 0F RIVERSIDE COUNTY, Respondent, JOSEPH SAMUEL SPINELL’I, JR., Real Party in Interest. THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, APR12 l 000 l 3 v. (Trial Ct. No. INM2003659) SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, JESSICA ORTIZ, Real Party in Interest. ORIGINAL PROCEEDINGS in mandate and prohibition. Dean Benjamini. Judge. Petitions denied. Michael A. Plestrin, District Attorney, and Chris S. Bouffard, Senior Deputy District Attorney, for Petitioner. N0 appearance for Respondent. Steven L. Hannon, Public Defender, and Jason M. Cox, Deputy Public Defender, for Real Pam‘es in Interest. THE COUR'I" With the parties’ consent at oral argument we consolidated these three writ proceedings For hearing and decision because. even though they involve different, unconnected criminal defendants, “they involve common and interrelated issues offact and law.” (In re Carl H. (201 7) 7 Cal.App.5th 1022, fn. l; see People v. Williams (1 997) 59 Cal.App.4th 1202; People v. Sanchez (1987) 190 Cal.App.3d 224, 228; People v. Superior Court (Kenncr) (1977) 73 Cal.App.3d 65, 67-68.) Indeed, they present the identical issue of law, one which surely arises daily in other ‘ SYKES, P. J.; STERLING, J. courts throughout our state: are defendants charged with misdemeanor driving under the influence (DUI) statutorily eligible for pretrial diversion under Pena] Code section 1001 .95? We hold that such defendants are indeed so eligible, and deny the People’s petitions for extraordinary relief“ PROCEDURAL BACKGROUND INMZOOMI 0 /APRIZI()0008 Defendant and real party in interest Diaz-Armstrong was charged by misdemeanor complaint with DUI (Veh. Code, § 23 1 52, subds. (a), (b)), was arraigned, and pleaded not guilty. At a pretrial hearing on January 21, 202 1 , the trial court placed defendant 0n diversion pursuant t0 Penal Code section 100] .95 (hereinafter “section 1001 .95”) over the prosecutor’s objection. With regard t0 the threshold question of eligibility the trial count incorporated by reference the arguments and ruling it had made earlier that day in INMZOOZI 81, which we discuss immediately below. The trial court additionally found defendant to be otherwise suitable for diversion based 0n the particular circumstances 0f the case. On February 17, 2021, the People filed a petition for writ of mandate or prohibition in this court and we issued an order to show cause.' INM200218I /A1’R12100009 Defendant and real party in interest Spinelli was also charged by misdemeanor complaint with DUI, was arraigned, and pleaded not guilty. At a pretrial hearing on January 21, 202], the trial court placed defendant on section 1001 .95 diversion. With regard to the threshold question 0f eligibility, the prosecutor had argued that DUI defendants arc categorically ineligible for l While it appears that the People have a remedy by way 0f appeal (People v. 'l’apia (I 982) 129 Cal.App.3d Supp. 1, 3 & fn. 1), “writ review 0f an appealable order is appropriate where it is necessary Lo resolve an issue offirsl' impression promptly and to set guidelines for bench and bar" (Rodrigues v. Superior Court (Joaquim) (2005) 127 Cal.App.4th 1027, 1032). We believe this standard is met here, and defendants do not disagree. 3 diversion by virtue 0f Vehicle Code section 23640 (hereinafter "section 23640”), The trial coun, however, noted the history 0f subsequently enacted diversion “statutes which have extensively run afoul and buttcd heads with 23640.” and observed the legislative history specific t0 section 1001 .95, reasoning: l think in this case, the best interpretation 0f the legislative history, given the fact that. the author offhe bill appears t0 be anticipating inclusion ofDUIs and then even when the governor signed the bill, in his signing statement, the governor said, "I’m signing this bill" -- and I’m just paraphrasing -- “l d0 have some concern that it includes DUIs, and I expect the legislature is going t0 change that in the future. I’m going to work with the legislature t0 change that in the future.” So when I 100k at those together, I have to conclude the legislative history 0f this bill is it includes DUls. . . . 1n terms 0f-- that’s eligibility. Tuming t0 suitability, the trial court found defendant’s particular case otherwise suitable for diversion. On February l8, 202 l. the People filed a petition for writ ofmandate or prohibition in this court and we issued an order t0 show cause. IN/112003659 /APR121000]3 Defendant and real party in interest Ortiz was also charged by misdemeanor complaint with DUI, was arraigned, and pleaded not guilty. On February l, 2021, the date set for jury trial, the trial court placed defendant 0n section 1001 .95 diversion over the prosecutof‘s objection. With regard 10 the threshold question ofeligibilily the trial court observed that “the legislature has seen fit to exclude four specific cases or categories ofcases from 1001 .95. And DUI 0r driving under the influence offenses were not excluded from there.” In finding a legislative intent t0 include DUIs despite section 23640, the trial court found it significant that a recently introduced bill. Senate Bill N0. 282, sought to specifically exclude driving under the influence offenses as well as a few other categories and specific statutes. One generally does not -- 0r the legislature docs not move t0 amend a statute t0 exclude something unless it was otherwise included, so I d0 believe that that is a pretty clear manifestation that, at least, the legislature believed that DUIs were included. And since what I have t0 d0 is divine legislative intent, I don’t think that there is much stronger indicator than the legislature themselves thinking that they included it, and that’s why at least one legislature [sic] has moved t0 amend the bill. As the in the other two cases, the trial coun found defendant otherwise suitable for diversion, the People filed a writ petition in this court, and we issued an order t0 show cause. DISCUSSION 1. The Legal Issue and Its Background The People‘s argument in each case is that DUIs are categorically ineligible for section 100] .95 misdemeanor diversion because of section 23640. They do not contest the trial court‘s secondary findings that each defendant was individually suitable for diversion. Section 1001 .95, which took effect January 1, 2021, sets forth an alternative dispositiona] scheme to the ordinary process ofcriminal adjudication, in which “[a] judge in the superior court in which a misdemeanor is being prosecuted may, at thejudge’s discretion, and over the objection ofa prosecuting attorney, offer diversion t0 a defendant . , . (§ 1001.95, subd. (a), added by Stats. 2020, ch. 334. § 1.) As with other fonns of pretrial diversion, “[i]f the defendant has complied with the imposed terms and conditions, at the end 0f the period of diversion, the judge shall dismiss the action against the defendant“; however, “[ijf the court finds that the defendant has not complied with the tetms and conditions 0f diversion, the court may end the diversion and order resumption Ofthe criminal proceedings.” (§ 1001.95, subds. (c), (d); cfi, e.g., Pen. Code, § 1000 ct seq.) By its plain terms, section 1001.95 applies to all misdemeanors except for these express exclusions: violations ofPenal Code sections 273.5, 243, subdivision (e), 676.9, and any offcnsc can'ying mandatory sex offender registration. (§ 1001.95. subd. (0).) Misdemeanor DU ls arc plainly not included in this list ofincligiblc offenses. But there is another statute t0 consider. Section 23640, a preexisting statute dating back almost 40 years (see former Vch. Code, § 23202, added by Stats. 1981, ch. 940, § 32), provides in relevant pan that, [i]n any case in which a person is charged with a violation 0f [Vehicle Code] Section 23152 or 23153, prior t0 acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose 0f allowing the accused person to attend 01‘ participate, nor shall the court consider dismissal 0f 0r entertain a motion t0 dismiss the proceedings because the accused person attends 0r participates during that suspension, in any one 01‘ more education, training, 0r treatment programs, including, but not limited t0, a driver improvement program, a treatment program for persons who are habitual users 0f alcohol 0r other alcoholism program, a program designed t0 offer alcohol services t0 problem drinkers, an alcohol 0r drug education program, 01‘ a treatment program for persons who are habitual users 0f drugs 0r other drug-related program. 1n other words, the court may not grant pretrial diversion t0 a misdcnwanor 0r felony DUI defendant. 'I‘his i5; “[t]he unambiguous intent of” the section. (People v. Darnell (1900) 224 Cal.App.3d 806, 8] 0.) The issue confronting this court is not novel: whether the two statutes can be hammnizcd and. ifthey cannot, which statute controls. Ofcourse._ “[t]he proper interpretation 0f a statute is a question 0f law, which we determine independently, 0r dc novo.” (Pcop/c v. Jacobo (20] 9) 37 Cal.App.5th 32, 42.) But there is a long and complex history surroundingjudiciu] application 0f section 23640 t0 preexisting and subsequently enacted diversion schemes. Diversion. t‘deefE’ndrm-fs with dcvcfomm’nm} disabiliticx The first case of nolc is People v. Weat/wrill (1989) 215 Cal.App.3d 1569, which considered whether the forerunner ofscction 23640, Vehicle Code section 23202, barred a DUI defendant from being granted diversion for defendants with developmental disabilities under Penal Code section 1001 .20 ct seq. After first “[pjerceiving no ambiguity in secti0n[] 23202" 10 excludc from diversion “all driving under the influence defendants‘, without exception,” the court then examined the legislative history because the defendant had “contend[ed] that this seeming all inclusive prohibition against diversion is apparent only.” (Id. at p. 1574 [emphasis in original].) But the legislative history ()fthe bill that had added the prohibition, Assembly Bil] N0. 541 (198 l - 1982 Reg. Sess.), actually revealed a strong intent to curb the scourge 0f DUIS in accord with thc public sympathies 0f the lime by, in part, ensuring that all DUI defendants would “have their guilt 0r innocence determined without delay 0r diversion." (Id. at pp. 1574-77.) The Weat/zerill court then turned to conventional tools 0f statutory interpretation t0 resolve the conflict between the diversion scheme and Vehicle Code section 23202’5 prohibition 0n diversion for DUI defendants. Invoking the rule that a specific statute controls over a conflicting general statute, the court explained that the subject matter 0f Vehicle Code section 23202 was more specific because it only “applies to a single type of conduct” whereas the diversion scheme “comprehends hundreds of misdemeanors in scores 0f codes . . . f” (Weaiherill. supra, 215 Cal.App.3d at pp. 157748.) Similarly, the rule that a more recent statute controls over an older statute supported application of the newer-by-onc-year Vehicle Code section 23202. (Id. at p. 1578.) Furthermore, while it was tmc that other subsequently enacted diversion schemes included specific exclusions for DUIs, this was only “in order [0 avoid the risk of implied repeal” 0f Vehicle Code section 23202 which buttressed the 1'.,cgislature’s consistent intent that "section 23202 bars all diversion programs.” (Id. at pp. 1579-80.) Finally, the court explained that the unavailability 0f diversion programs did not undermine the goal of‘rehabilitation because the trial coufl “may prescribe, as conditions of probation, appropriate education, training, and treatment programs." (1d. at p. 1580.) Wcat/zerill thus held that Vehicle Code section 23202 barred the defendant in that case from diversion. It was a split decision, however, and Justice Johnson’s dissent explained then “l ill can be contended just as forcefully that” Vehicle Code section 23202 is the general statute because it applies to all DUI cases while the diversion scheme applies only t0 a specialized class of defendants. (Weaxherill, supra, 2] 5 Cal.App.3d at pp. 1582-83 (dis. opn. ofJohnson, J.).) With regard to the legislative history, the dissent read it t0 reflect an intent in Vehicle Code section 23202 only to eliminate a different, particular sort of problematic diversion program that had recently sprung up at the trial coun level. Under [a prior diversion scheme that excluded only persons convicted of DUI], some counties developed diversion programs referred t0 as “Lucky Deuce" programs. (A drunk driving charge under Vehicle Code section 23 152 is commonly referred to as a “deuce.") Under the auspices 0f the court, the district attorney and defense counsel, first-time offenders could elect to enter a year-long “Lucky Deuce” program at their own expense. Upon successfully completing the program, the “deuce” could be reduced to reckless driving, a moving violation or even dismissed entirely in the coun's discretion. The court proceedings were stayed pending completion 0f the program. [Citation‘] According t0 the Senate Judiciary Committee report, Vehicle Code section 23202 would eliminate these "Lucky Deuce" programs. [Citation] The legislative history ofsection 23202 furnished us by the Legislative Intent Service contains nothing which would indicate the Legislature had the diversion program for the [developmentally disabled] in mind when it enacted that section. Rather, the materials imply the Legislature sought only t0 eliminate the "Lucky Deuce” programs. (Id. at p. 1584.) The dissent’s view was buttressed in part by the policy implication that "Penal Code section 100] .20 was enacted not as an act of kindness" but "because the Legislature felt imprisonment was ineffective as a deterrent for that class ofdefcndants . . . (1d. at pp. 1584»- 88.) // // Mih‘tm‘v diversion The issue lay there dormant for over a quarter centuly, until the Legislature‘s enactment of a diversion scheme for members 0f the military and veterans suffering from maladies related to their service. (Pen‘ Code, § 1001 .80, added by Stats. 2014, ch. 658.) ln People v. Van Vleck (20] 6) 2 Cal.App.5th 355, the Fourth District Court of Appeal, Division One held that the general prohibition on diversion for DUI defendants, now found in section 23640 (see id. at p. 361, fn. 2), applied t0 bar such defendants from military diversion. It noted that “[w]hile the Legislature did not specifically include or exclude driving under the influence misdemeanors from military diversiom we presume the Legislature was aware 0f preexisting legal authority and decisional interpretations, and enacted the military diversion statute with that in mind.“ (Id at p. 363.) And so the Legislature could be charged with knowledge “of the Weatlwrill decision and its interpretation ofsection 23640 when it enacted the military diversion statute.” (Id. at p. 364.) In short, in light 0f section 23640 and Weazlzerill it was incumbent 0n the Legislature t0 expressly include DUI cases as eligible for military diversion ifthat was what it wanted. (Sec id. at pp. 365, fn. 3, 367.) Shortly thereafier a panel 0f the Second District Court of Appeal reached the Opposite conclusion. 1n Hopkins v. Superior Court (201 6) 2 Cal.AppASth 1275, the court found that because the military diversion statute “‘applliies] whenever a [misdemeanor] case is before a court,’"" it was in irreconcilable conflict with section 23640 such that it was not appropriate to try t0 harmonize them. (Id. at pp. 1282-83 [emphasis in 0rigina]].) Echoing Justice Johnson’s dissent in Wear/zcrilL the Hopkins coufl found the genera]~versus-specific-statute rule too facile, in that it can apply either way depending 0n one’s “arbitrary choice offocus . . . ." (1d. at pp. 1283-84.) But the earlier-versus-later-statute rule could only apply in one direction: the newer Penal Code section 1001.80 supersedes the older section 23640 to the extent they conflict. (Id. at p. 1284.) The Hopkins court doubted that it was appropriate to presume that the Legislature enacted the diversion scheme in light of existing law in a situation where there was a “direct conflictfl,” and in a manner so as to tum the Legislature’s “mere silence . . . into a species of implied legislation . . . 3’ (1d. al‘ pp. 1284-85 [internal quotation marks omitted].) And it inferred from various aspects of the legislative history- specifically the policies 0f military diversion and the recognition that other diversion schemes expressly exempt DUIs -- a strong legislative intent t0 include DUIs. (Id. al pp. 1286~88.) The Legislature itself ultimately resolved the conflict between VanVieck and Hopkins. amending Penal Code section 100] .80 to expressly include DUI cases as eligible “[n]otwithstanding, . . Section 23640 ofthe Vehicle Code . . . ." (Pen. Code, § 1001.80, subd. (l), added by Stats. 2017, ch. 179.) Mental healih diversion Most recently, the Founh District Court 0f Appeal, Division Two addressed the issue in the context of Penal Code section 1001.36 mental health diversion, which took effect in 20] 8. (See Stats. 2018, ch. 34, § 24.) First, in Tellez v. Superior Court (2020) 56 Cal.App.5th 439, it observed that Penal Code section 1001.36 and section 23640 arc in conflict because the formcn taken alone, would unambiguously include DUIs within its scope; this is so even though Penal Code section 1001.36 simply says that it applies “‘[o]n an accusatory pleading alleging the commission of a misdemeanor 0r felony offense” without any particular language ofunivcrsality. (Id. at pp. 443-44.) The court then drew heavily from a unique aspect 0f the legislative history: the fact that "the amendment of the military diversion statute” t0 expressly include DUIs, the original “enactment ofPenal Code section 1001.36” with n0 exclusions. "and the amendment 10 0f Penal Code section 1001 .36“ t0 add a lisl‘ of‘cxcludcd offenses that omitted DUls, “all occurred during the 201 7 10 20] 8 legislative session." (Id. at p. 447.) This history establishes that the Legislature wanted the existing bar 0n diversion for DU I offenses to take preccd ence. The Legislature was familiar with the conflict between Vehicle Code section 23640 and diversion statutes and knew how t0 clarify that the diversion statute should control over the Vehicle Code. having recently confronted the issue with respect to military diversion. What is mom the earlier version 0f Senate Bill 215 [the bill amending Penal Code section 100] .36] would have clarified that mental health diversion applied notwithstanding any other law, but the Legislature abandoned that "notwithstanding” clause in the final version OfSenatc Bill 215. The Legislature's failure t0 amend Pcnal Code section 1001 .36 in the same way that it had recently amended the military diversion statute indicates that the Legislature did not intend to override Vehicle Code section 23640. Instead. the Legislature intended that the dccades-old prohibition against diversion for DUI offenses should prevail. It is true that, at the same lime the Legislature abandoned the notwithstanding clause in Senate Bill 21 5, the Legislature abandoned the provision that would have expressly excluded DUI offenses. Tellez relies 0n that latter change and argues that we should not read words into a statute that the Legislature has rejected. [Citation] But we need not read the ineligibility 0f DUI offenses into Penal Code section 100] .36- Vehicle Code section 23 640 accomplishes that. In contrast, no separate code provisions render the other disqualifying offenses ineligible for mental health diversion. Ifthe Legislature wanted those other offenses t0 be ineligible for mental health diversion, Penal Code section 1001.36 had t0 say so. The Legislature thus created the list 0f ineligible offenses in Penal Code section 1001 .36, subdivision (b)(Z), but it was unnecessary to add DUI offenses to that list. That is, the Legislature deleted the exclusion for DUI offenses from Senate Bill 2 l 5 not because it wanted to make DUI offenders eligible for mental health diversion but because there was 110 need for an express exclusion in Pena] Code section 1001 .36 ~- such offenders were already excluded by Vehicle Code section 23640. (Id. at p. 448.) In Moore v. Superior Court (2020) 58 Cal.App.5th 561, a slightly different panel offhe same court reaffirmed its position that, if the Legislature had intended DUI defendants to bc eligible for pretrial mental health diversion, it would have repealed 0r amended Vehicle Code section 23640, 0r it would have "cawclid] out an exception” t0 Vehicle Code section 23640 in Penal Code section 100] .36. Its failure to do either - during the same legislative session in which it amended Penal Code section 1001 .80 t0 make military members charged with misdemeanor DUI offenses eligibls for military diversion [citation] 11 - manifests its intent to keep a1] DUI defendants ineligible for pretrial mental health diversion under Vehicle Code section 23640. (Id. at p. 579.) II. Section 1001.95 Misdemeanor Diversion and DUIs None ofthe cases discussed above is entirely congruent With ours. Weat/wrill dealt with a previously enacted diversion program where thc DUI prohibition was the more recent expression oflegislative intent; the dispute between Van Vleck and Hopkins was never settled judicially and involved a diversion scheme restricted t0 a small class of defendants; and Tellez and Moore dealt with a remarkably unique and telling legislative history, and both involved defendants charged with felony DUI causing inj ury. Perhaps most importantly, none involved a diversion scheme as sweeping and consequential as the one before us, a point we discuss further below. (Posz, at pp. 21-22.) With the issue now presented squarely, we have come to the decision that misdemeanor DUI cases are eligible for section 1001.95 diversion despite the prohibition embedded in section 23640. Our analysis is guided throughout by the bedrock precept that our duty is “““to ascertain the intent ofthe lawmakers so as to effectuate the purpose 0fthe statute,”"”’ meaning that wc must ““‘[u]ltimately . . . choose the construction that comports most closely with the apparent intent of the lawmakers, with a view t0 promoting rather than defeating the general purpose of the statute."‘”’ (People v. Gutierrez (2014) 58 Cal.4th 1354, 1369.) “It cannot be too ofien repeated that due respect for the political branches 0f our government requires us t0 interpret the laws in accordance with the expressed intention of the Legislature.” (California Teachers Assn‘ v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632-33.) Viewing the question before us from this perspective, we must answer this: When the Legislature authorized trial courts t0 grant diversion in a misdemeanor case so long as the charge wasn’t one 0f the expressly listed 12 exclusions, did they mean to give courts the power t0 grant diversion in DUI cases - a non- excluded offense- notwithstanding the existence 0f section 23640? For the reasons that follow, we believe that when the Legislature enacted section 1001 .95 it intended for it to include misdemeanor DUIs. A. The statutory text and canons 0fconstmctian “""[T]he statutory language . . . generally is the most reliable indicator 0f legislative intent."‘"’ (Gutierrez, supra, 58 Cal.4th at p. 1369.) By its plain language section IOOI .95 applies broadly to “a misdemeanor . . . being prosecuted" with only a few clearly identified exceptions. It is true, as the dissent points out, that the text does not contain any overt flags indicating universality 0r precedence, such as the phrase “notwithstanding any other law”; but neither does it signal deference or subjection to otherwise applicable law, which the Legislature also knows how to drafi. (See Corp. Code, § 206; Health & Saf. Code, §§ 25244.10, 50466, subd. (a); Prob. Code. § 880, subd. (b)(2); Pub. Resources Code, § 4291.3, subd. (a); Pub. Util. Code, § 107015, subd. (t).) So the non-existence of universal language isn’t a positive indication in its own right; it merely sets up the conflict. And indeed there is a conflict because “[b]oth statutes are unambiguous in their plain languagez” section 23 640 “clearly prohibits diversion for defendants charged with DUI offbnses,“ and section 1001.95 “just as clearly allows” the trial court to grant diversion in a misdemeanor case. (Tel/ez, supra, 56 Cal.App.5th at p. 444.) “When it comes to [misdemeanor] DUI offenses . . . section 23640 prohibits a court from doing what” section 1001 .95 "permits. The two ‘statules are in conflict and thus one must be interpreted as providing an exception t0 the other.” ([bid.) The dissent posits that we can harmonize the statutes, but doing so contradicts the Court 0f Appeal’s consistent understanding that 23640 poses a real conflict with diversion statutes that 13 would otherwise include DUIs. (See ibid.; Hopkins, supra, 2 Cal.App.5th at pp. 1282-83; Wear/zcrz'll, supra, 215 Ca].App.3d at p. [577 & fn. 7.) “‘[’I‘]be requirement that courts harmonize potentially inconsistent statutes when possible is not a license to redrafi the statutes to strike a compromise that the Legislature did not reach.” (Hopkins, at p. 1282.) Indeed, the dissent offers what we believe to be the very first appellate opinion directly concluding that true harmonization is possible. (But see Wcat/zerill, at p. 1578‘ fn. 9 [noting its own dissent’s cquivocation 0n this point].) Following the Court of Appeal, we disagree. “Courts may rely on canons of construction to reconcile conflicting statutes." (’l'ellez, supra, 56 Cal.App.5th at p. 444.) As the Moore and Hopkins courts explained, under these circumstances “cither statute can be construed as more specific than the other, regarding their subject matters,” meaning "that the rule that a specific statute controls over a more general one ‘does not assist us in this case.” (Moore, supra, 58 Cal.App.5th at p. 580 & fn. 10; sec Hopkins, supra, 2 Cal.App.5th at pp. 1 283-84 [“unless we are prepared to make an arbitrary choice offocus‘ the general-versus-specific rule of statutory construction gets us nowhere”].) That is, while “[iilt is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute" (People v. Gilbert (1969) 1 Ca].3d 475, 479), section 1001 .95 standing alone does not include the same matter as section 23640 because felony DUls are included in the latter but not the former. So section 1001 .95 is the more genera] statute simply in the sense that it covers a greater number 0f discrete offenses; but it only includes the subset of misdemeanor DUIS, while section 23640 covers all DUIs, generally. Turning to “the rule that “‘later enactments supersede earlier ones””’ (Hopkins, supra, 2 Cal.App.Sth at p. 1284), section 1001 .95 is the newer statute by decades. This generational span is significant because the later-versusmearlier canon is not an arbitrary tiebreaking rule; i1 reflects a deeper, more fundamental conceptfl that the dead hand of a past legislative session does. not constrict the freedom of the cunent Legislature t0 enact laws consistent with contemporary public policy. With limited exception (see Cal. C0nst., art. II, § 10, subd. (c) [limitations 0n amending initiative statutesD, long-standing statutes (lo not derive their force merely from their vcncrability; they derive it primarily from the sufferance ofthe current Legislature. “[A]n act ofone legislature is not binding upon, and does not tie the hands 0f future legislatures. . . . ‘. . . The legislature . . . cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes,” and so “‘the later law prevails as the last expression of the legislative will . . . .’” (United Milk Plv‘oducers OfCal. v. Cecil (1941) 47 Cal.App.2d 758, 764- 65.) In short, section l 00 l .95 “is the later and therefore the controlling expression ot‘tlle legislative intent . . . (Jensky v‘ Slate Bd. Qf‘lj‘qualizarion (I 945) 67 Cal.App.2d 612, 617.) Certainly, “‘“[n]0 single canon of statutoxy construction is an infallible guide t0 correct. interpretation in a1] circumstances’”” and they “‘will not be applied so as to defeat the underlying legislative intent otherwise dctemlincd.” (Tellez, supra, 56 Cal.App.5th at pp. 448 -49.) Here, however, the later-versus-earlier rule is in accord with other indicators of legislative intent. B. The history ofmisdemeanor diversion Subsequent t0 the enactment 0f section 23640‘5 predecessor, the Legislature created two new misdemeanor diversion programs, and one deferred entry ofjudgmcnt pilot program, which all included express exclusions for DUIs despite the existence 0fthe language now found in section 23640. (See Pen. Code, §§ 1001.2, subd. (a), added by Statsk I982, ch. 42, § 2; Pen. Code, § 1001.5 l , subd. (b), added by Stats. 1982, ch. 1251 , § 2; former Pen. Code, § 1001 .98, subd. (h)(3)‘ added by Stats. 2014, ch. 732, § l.) “The Legislature’s omission 0f an” express exclusion for misdemeanor DUIs in section 100] .95 “when i1 included such language in several related statutes. is significant. "'When the Legislature ‘has employed a term or phrase in one place and cxcluded it in another, it should not be implied where excluded.““" (P901110 v. Sung Jug Sen (2020) 48 Cal.App.5th 1081, 1088.) In Wcat/wrili, the court opined that the specific DUI exclusions in the subsequent diversion schemes was a means by which the Legislature indicated the ongoing validity 0f Vehicle Code section 23202 by “avoid[ing] the risk ofimplied repeal . . . ." (Wearlzcrill, suprafi 2 l 5 Cal.Apde at pp. 1579-80.) Consistent with this reasoning, appellate courts have drawn the converse inference when a subsequent diversion scheme includes no express DUI exclusion. In Hopkins the court explained that the failure t0 expressly exempt DUI cases in [Penal Code] section 1001.80 stands in stark contrast lo pn'or actions by the LegiSlature with respect to other diversion programs. . . . That the Legislature did not do so here supports our conclusion that it did not intend that Vehicle Code section 23640 would bar pretrial diversion under section 1001.80 in DUI cases. (Hopkins. supra, 2 Cal.App.5th at p. 1287.) And, anticipating the issue now before us, the Court ()prpeal division that sits as our direct superior opined in dicta: We do not believe it is clear whether DUI offenses are eligible for the new misdemeanor diversion program, and we need not decide the issue. . . . [n 1982, the Legislature enacted two sets of statutes providing for misdemeanor diversion programs. [Citations.] When the Legislature did so, it expressly excluded DUI offenses from eligibility. [Citations.] In view 0f that history, the ll.egislature‘s failure to expressly exclude DUI offenses this time around is a good indicator that it intended DUI offenses t0 be eligible for the new misdemeanor program. (7121/62, supra, 56 Cal.App.5th at pp. 449-50.) We arc persuaded by the reasoning ofliapkins and Tc/lcz 0n this point, which is consistent with the principle 0f statutory construction noted immediately above that we should understand as purposeful thc Legislature’s omission oflanguage that it has employed in related statutes. We are mindful that “we presume the Legislature was aware 0f preexisling legal authority and dccisional interpretations, and enacted the [misdemeanor] diversion statute with that in mind." (VanV/cck, supra, 2 Cal.App.5th at p. 363.) But this is 0f little help because in 2020 when the Legislature considered and adopted section 1001 .95 the case law at its disposal was not monolithic. True, it had VanVleck t0 tell it that courts might apply section 23640 notwithstanding the new diversion statute, but it also had Hopkins which stood for the opposite? The Legislature, then, had no particular reason to think that a coun interpreting section 1001.95 would reach the same result as the former case, rather than the result 0f the latter. So the presumption that the Legislature was aware of existing case law docs not support the conclusion that their failure to expressly address DUIs in section 1001.95 shows an intent that misdemeanor DUls be excluded under section 23640. C. The history ofsection 1001.95 "[L]egislative history is another well-cstablishcd tool for ascertaining legislative intent and harmonizing statutes."3 (Tellez, supra, 56 Ca1.App.5th at p‘ 444.) The history of Assembly Bill N0. 3234, which enacted section 1001 .95, shows that under an early version 0f the bill it "would have no statutory requirements for the defendant t0 satisfy in order t0 be eligible, nor would any misdemeanors be statutorily excluded.” (Assem. 3d reading analysis of Assem. Bill No. 3234 (2019-2020 Reg. Sess.), as amended Aug. 3, 2020, at p. 3.) The California District Attomeys Association pointed out the desirability of excluding certain serious offenses including DUIs (id. at pp. 4-5). and. the bill was amended to its final version which excluded some but not all ofthose offenses. A subsequent legislative analysis summarized this amendment by explaining that a 2 Tcllez and Moore were not decided until after the bill’s passage so the Legislature did not have the benefit of those analyses. 3 As there has been no objection, we take judicial notice of all the court records, legislative materials, and other documents the parties have provided, (See generally Evid. Code, §§ 452, 459.) l7 defendant could not be offered diversion if charged with any of the newly drafied exclusions. (Assam. 3d reading analysis ofAssem. Bil] N0. 3234 (2019-2020 Reg. Sess.), as amended Aug. 24, 2020, at p. l.) The omission 0f misdemeanor DUIs in the final list 0f exclusions and corresponding analysis is telling evidence 0fthe legislature’s intent to include them as eligible. It is true that the Tellez court drew the opposite inference where the Legislature actually deleted a proposed exclusion of 'DUIS From the diversion statute, reasoning in essence that this showed that the Legislature understood the existence and operation 0f section 23640 and intended t0 incorporate it into the diversion statute. (Ante, at pp. 10-1 1 .) But the same inference docs not hold here because it was premised on the initial proposal to exclude DUIs, which presented a discernible indication ofl'he Legislature’s intent; Tcllez reasoned that in light ofsection 23640 this same intent persisted despite the subsequent deletion. Herc, conversely, the Legislature that enacted section 1001 .95 never at any point expressed an intent to exclude misdemeanor DUIs. In fact, a1] indications were to the contrary. During a subcommittee meeting discussing a predecessor bill that sought t0 add the section 1001.95 misdemeanor diversion scheme in its original fonn with no express exceptions (Assem. Bill N0. 88 (20] 9-2020 Reg. Sess.) as amended Jun. 5.2, 2020, § 14), Assemblymember Cooper raised the concern that various serious misdemeanors would be eligible, including sex offenses and DUIS, particularly DUIs with priors. Later, during the floor debate on Assembly Bill N0. 3234, Assemblymember Cooper spoke approvingly of the fact that some serious misdemeanors had been excluded, but expressed concern that the list did not g0 far enough, pointing t0 the remaining inclusion of “DUI with injury, firearms offenses. carrying a concealed firearm, loaded firearm in public, bringing a deadly weapon t0 a state building.” During the Senate’s floor debate 0n lhe bill, Senator Mitchell noted that "[t]his bill gives statewide judicial authority to offer optional misdemeanor diversion except ['or specified offenses." Senator Melendez, opposing the bill, said: This bill allows a judge t0 provide unlimited diversion for any misdemeanor, with the exclusion 0f sex offenses, domestic violence and stalking. It does allow for diversion for those who commit child abuse, who have a DUI, hate crimes, bringing a firearm into a legislative office, assault, battery, identity thefi, vehicular manslaughter, possessing a firearm upon 0r within public school, in, 0n the grounds, all eligible for diversion. Senator Mitchell responded by pointing out that, “[a]gain, it excludes those convicted 0f [sic] sex offenses, [).V. and stalking." As a general rule, “‘stalements ofan individual legislator, including the author of a bill. are generally not considered in construing a statute, as the court’s task is t0 ascertain the intent 0f the Legislature as a whole in adopling a piece of legislation.”’ (American Financial Services Assn. v. City oan/dand (2005) 34 Ca1.4th 1239, 1262.) But this mle does not hold where, as here. “an individual legislator’s opinions regarding the purpose 0r meaning ofthe legislation were expressed in testimony or argument to either a house of the Legislature or one 0f its committees”- that is, “in a legislative forum” where we can be “assur[cd] that the rest ofthe Legislature . . . knew 0f. . . those views,” and where other “legislators or other interested parties with differing opinions as t0 the bill’s meaning and scope had” tho “opportunity to present their views in rebuflal." (McDowell v. Walson (1 997) 59 Cal.App.4t:h 1 155, 116 I , fn. 3 [so qualifying the general rule]; sec In re Marriage ofBouquet (1976) 16 Cal.3d 583, 590 [“[d]ebates surrounding the enactment 0f a bill may illuminate its interpretatiofl’]; California Chamber ofCommerce v. Stare Air Resources Bd. (2017) 10 Cal.App.5th 604, 627, fn. 14 [“floor statements provide cognizable legislative history ofa bill”]: Bravo Vending v. City ofRancho Mirage (1993) 16 Cal.App.4th 383, 407 [“[i]t is settled that one type of conduct which may be considered is statements made by legislators l9 during debate on the proposed legislation”]; Nasser v. Superior Court (Gaydos) (1984) 156 Ca].App.3d 52, 58 [“legislative debates” are a legitimate source 0f legislative intentl.) ln other words. while “a legislator“s personal understanding of a bill does nol indicate the Legislature‘s collective intent in enacting that bill,” where the statements are “part 01‘ the debate on the legislation and were communicated t0 other legislators, we can regard them as evidence of legislative intent.” (Carter v. California Dept. Qf Veterans Aflairs (2006) 38 Cal.4th 914, 928u 2934 ln the legislative debates surrounding section 1001.95 diversion no member ever contradicted the assertions 0fAssemblymember Cooper and Senator Melendez that misdemeanor DUIS were included. And Senator Mitchell‘s defense ofthe bill failed t0 mention the exclusion 01'" misdemeanor DUIs. This history reflects more than the personal beliefs of select individuals. Rather, members 0f the Legislature articulated their concems 0n the record to their colleagues, they were never met with a rebuttal, and majorities ofboth houses passed the bill anyway. This is compelling evidence that the Legislature as a whole intended t0 include misdemeanor DUIs. Though the indicators found in the legislative history are perhaps sporadic, they are not ambiguous as they all point in the same direction: that the Legislature did not intend t0 exclude misdemeanor DUIs from section 1001 .95 diversion. D. The Legislature ’s policy goals “When the plain meaning 0f the statutory text is insufficient t0 resolve the question ol’its interpretation, we may consider, ‘the impact 0f an interpretation 0n public policy, for “[w]hcrc uncertainty exists consideration should be given to the consequences that will flow from a 4 Carter spoke specifically ofthe author’s statements, but in light ofthe other authorilicsjusl cited the principle holds regardless of whether or not the legislator was the bill’s author. 20 particular interpretation."”' (Moore, supra, 58 Cal.App.Sth at p. 58 l .) But of‘course. "it is for tho Legislature t0 strike the proper balance between protecting public safety 21nd mitigating thc entry and reentry into the criminal justice system ofindividuals” charged with misdcmcanors. (Ibid) Four decades ago, when the Legislature enacted the predecessor t0 section 2364(L its intent was t0 punish. “The public wanted and AB 54] provided ‘[c]clcrity and ceflainty ofpunishmcnt.” (Weathcri/l, supra. 2 l 5 Cal.App.3d at p. 1575.) In the present day, however, it is just as clear that the Legislature’s purpose in enacting section 100] .95 was to treat, restore, and rehabilitate. AB3234 provides judges with the discretion 10 provide diversion to individuals charged with misdemeanors they deem appropriate for such a program. Diversion programs that arc successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment or housing. Diversion programs typically require individuals to fulfill strict requirements, including panicipating in a rehabilitation program. This proactive approach has shown l0 yield better recidivism rates than merely prosecuting and jailing an individual. (Sen. Rules Com. Off. OfSen. Floor Analyses, 3d reading analysis O'I’Assem. Bill No. 3234 (20 1 ()- 2020 Reg. Sass), as amended Aug. 24, 2020, at p. 2.) An argument in support 0f the bill elaborated: Incarceration and prosecution are intensely traumatic and damaging processes that harm individuals, families and communities, and often increase recidivism and exacerbate the underlying causes 0f crime. Judge-grantcd diversion is a too] that can reduce the direct and collateral consequences of mass incarceration and prosecution and promote racial justice in our criminal legal system. AB 3234 also decreases the taxpayer cost of traditional criminal case proceedings, while increasing accountability through rigorous rehabilitative programming encouraging familial relationships and growth by avoiding familial separation that occurs with incarceration, and making us all safer by reducing recidivism. (Assem. 3d reading analysis ofAssem. Bill No. 3234 (2019-2020 Rog. Sosa), as amended Aug. 24‘ 2020, at p. 5 [internal quotation marks 0mitted].) The Legislature thus unequivocally enacted section 100l.95 in order t0 broadly shift persons charged with misdemeanors away from traditional punishment in order t0 achieve better 21 long-tet‘m outcomes‘ Indeed, section [001.95 diversion represents a sea change in the law of misdemeanors. Up till now “the Legislature has n01 conferred ‘a general grant ofauthority t0 [rial courts to grant diversion t0 a defendant, outside a diversion program mandated by the state 0r by local government, and over the objection ol‘lhe prosecuting attorney . , . 3" (People 1'. M'arroqm'n (2017) 15 Cal.App.5th Supp. 31, 37; sec also Pen. Code, §§ 1001.2, subd. (b) [a misdemeanor diversion program under that chapter requires the approval of the district attorney], 100! .50, subd. (b) [similar].) But in section 1001 .95 the Legislature has now granted the Superior Court exactly that power, and with wide discretion. We cannot overstate the significance ofthis innovation, and our construction of'the statutes must respect this rather than downplay it. There are n0 reliable indicators that the Legislature that enacted that statute intended to mark misdemeanor DUIs as particularly unamenable to the rehabilitative efforts characteristic 0|" pretrial diversion. And section 23640 still operates t0 exclude felony DUIs from, for example, mental health diversion. (Moore, supra, 58 Cal.App.5th 561; Tellez, supra, 56 Cal.App.4th 439.) It therefore furthers the enacted polices ofscction 1001 .95 to hold -- consistent with principles 0f statutory construction and the other legislative history - that the Legislature intended for defendants charged with misdemeanor DUI to be eligible for section 1001.95 diversion as an exception to the prohibition embedded in section 23640. If such was not the Legislature‘s intent they could and should have clearly said otherwise. DISPOSITION The petitions are denied. 22 FIRETAG, J. I respectfully dissent. In my opinion, l would find that in any case in which a person is charged with a misdemeanor violation 0f Vehicle Code section 23152 0r 23 l 53,' those individuals arc categorically ineligible for diversion under Penal Code section 1001.95? I find this simply because Vehicle Code section 236403 expressly prohibits diversion and nothing in section 1001 .95 provides otherwise. Although reasonable minds could certainly differ on the interplay between sections 100] .95 and 23640, I would find that a better argument could be made that the two code sections operate in harmony with each other rather than in conflict. There are two main reasons why. The first is that there is n0 textual support t0 conclude that section 23640’3 prohibition 0n misdemeanor DUI diversion has been supplanted by section 1001.95. Nothing in section 1001.95, subdivision (e)‘s list 0f ineligible offenses for diversion suggests that it is exclusive, and nothing in rest Ofthe text lends support for the idea that section 23640 has been repealed in any manner. As such, section 23640 therefore works in harmony with section 1001.95 and still functions as a bar t0 granting diversion t0 persons charged with a DUI. The second reason is that other appellate courts, including our own Fourth District Court oprpeal, Division Two most recently in 2020. have analyzed similar diversion statutes and found that persons charged with DUIs are categorically exempted from receiving diversion because of section 23640. As case law shows, there are no disccrnable differences between section 1001,95 and other diversion statutes, and thus it would be incongruent for me t0 conclude that a different result should follow in this matter. I--Icreaficr, “DUI 0r DUIs.” Hereafter, “section 100] .95.” Hereafter. "section 23640.” 'Atu- For these and the reasons detailed below, l respectfully dissent. I. The Text ofSection 1001.95 [n my opinion. there is n0 textual support in section 100] .95 t0 find that defendants charged with misdemeanor DUI violations arc eligible for diversion in light 0f section 23640. I agree with the majority’s first contention that the task of any reviewing court when analyzing a statute is t0 determine the intent behind the law. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1369 [finding that a court must “choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the genera] purpose 0f the statute.“].) I find that in most cases the intent of the Legislature is best found in the actual words and text used by the Legislature. At first blush, one can easily see why an argument could be made that DUIs are included. Indeed, by its own terms section 1001 .95, subd. (a) states simply: “A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection 0f a prosecuting attorney, offer diversion to a defendant pursuant t0 these provisions." Section 1001 .95 contains four exceptions t0 granting diversion for certain enumerated offenses: infliction ofa corporal injury resulting in a traumatic condition 0n a specified victim (Pen. Code, § 273.5), domestic battery (Pen. Code, §'243, subd. (6)), stalking (Pen. Code, § 646.9), and any offense carrying mandatory sex offender registration. (§ 1001.95, subd. (6).) If there were no other statutes t0 consider, or if section 1001.95 included language specifically indicating that these categories are exclusive, then our work would be done. However, we cannot simply ignore section 23 640. As noted by the majority, the Legislature created section 23640 almost 40 years ago. That statute clearly provides: [i]n any case in which a person is charged With a Violation 0f [Vehicle Code] Section 23152 0r 23153, prior t0 acquittal or conviction, the court shall neither suspend nor stay the proceedingsfor the purpose qfallowing (he accusedperson t0 attend 0r participate, nor shall the court consider dismissal afar entertain a motion t0 dismiss the proceedings because the accused person attends 0r participates during that suspension, in any one 0r more education, training, 01‘ treatment programs, including, but not limited t0, a driver improvement program, a treatment program for persons who arc habitual users ofalcohol 01" other alcoholism program. a program designed t0 Offer alcohol services t0 problem drinkers, an alcohol 0r drug education program, 0r a treatment program for persons who arc habitual users ofdrugs 0r other drug-related program. (§ 23640, subd. (a) [emphasis addedj.) In other words. the Legislature‘s intent 40 years ago was that a trial court is prohibited from granting pretrial diversion 10 a DUI defendant. This is “[1]hc unambiguous intent of“ section 23640. (People v. Darnell (1 990) 224 Cal.Appfid 806‘ 810.) So what is the intent 0f section 1001 .95? 1t is clear that the Legislature wanted t0 crcatc a statutory scheme whereby many, but not all, misdemeanors would be eligible for diversion. Clearly, some misdemeanors arc not eligible because the statute expressly prohibits it. But what about section 23640? Indeed, there is no mention of‘this statute whatsoever in section 100] .95“ There is also n0 qualifying language in section 100] .95 t0 indicate that the list ofexcmptions arc exclusive. As suchf it is difficult for me t0 conclude that the Legislature intended t0 nullify section 23640 when there is 110 specific reference of doing so anywhere in the statute. Howeven without this textual support the nuljority has held that section 23640’5 prohibitions do not apply in granting diversion under section 1001 .95. Put another way" although not stated directly. for all practical purposes the majority has concluded that section 1001 .95 has effectively repealed section 23640‘5 prohibition 0n diversion, at lcast with respect 10 misdcnwanor DUI offenses} 4 The majority concludes that because felony DUls arc still categorically prohibited from diversion under section 23640, that section 1001.95 has not fully repealed section 23640‘ l find this t0 bc a distinction without a difference. Whether section 23640 is repealed in whole 0r in part 3 In my opinion, not only has section 1001 .95 not explicitly repealed section 23640. there is no reason t0 believe it has done so implicitly either. Indeed, our Supreme Coun has regularly cautioned lower courts for making a judicial finding that one statute has repealed another, especially when there is no textual support to d0 so. In liven Zolmr C(Hmtruclfon 62 Remodeling. Inc. v. Bcl/airc YbN‘n/Iom'cs. LLC' (3m 5) ()l ('Tal.4th 830. l’hc court was tasked with rcconciling the intexplay between Code ofC'ivil Procudurc scelions 473 and [008. In resolving this conflict the coun looked to hammni'zc the two slalulcs‘ rather than find one statute superseded the other. "l‘he Supreme Coun held: In this case, thc parties disagree less (wcr what sections 473 and 1008 mean than mrcr how the two statutes interact. While plaintifi‘contends section l()()8 governs all renewed applications f0]: relief from default, including applications under section 473(k)), defendants contend the two statutes conflict 21nd that section 473(1)) takes precedence. Under these circumstances. two principles 0f statutory construction arc cspccialIy relevant. I’irsl. “‘[a] coun must, where reasonably possibla harmonize statutes, reconcile seeming inconsistenccs in them, and construe them t0 give force and effect t0 all offheir provisions . . . [CitatimL] Second, al “‘“‘presumptions are against a repeal by implication "”” [citation]. including partial rcpeals that occur when (me statute implicitly [Entity another smmm ’s scape 0foperation. Thus, "“‘we willflnd an implied repeal ‘rmly when there is no rational basixfbr harmonizing . . . two potentially conflicting statutes [citation]. um! the statutes are “irreconcilable, clearly repugnant, (ma' so inconsistent tlmt Ilw two cannot have concurrent operation. ” [Citation] Applied to the case before us. these principles require us 10 favor a reasonable constmctinn that gives full effect t0 both sections 473(b) and 1008. With that cautionary preface we lurn to thc statutory language. (Evan Zahar, at p. 838 [emphasis and paragraph break added].) As Even Zohar dictates, couns should harmonize statutes, not find them in conflict to the point where a court effectively concludes that one statute implicitly repeals the other. is not germane t0 the analysis; the point is that the majority’s ruling effectively repeals section 23640’3 prohibition to grant diversion t0 persons charged with a misdemeanor DUI offense. 4 In this case, it is quite simple t0 harmonize the two statutes: the list 0f misdemeanor offenses that are ineligible for diversion in section 100] .95, subdivision (e) is non-exclusivc, and because section 1001 .95 makes no mention of section 23640, the prohibition on granting diversion t0 persons charged with DUI offenses remains. That is the simplest, and in my opinion most consistent, way t0 resolve any perceived conflict between the two statutes. Certainly, there is nothing in these two code sections t0 conclude that they are so irreconcilable, repugnant 0r inconsistent with each other that they cannot have concurrent operation. (Even Zollar. supra, 61 Ca1.4th at p. 838.) 1n short, if the Legislature wanted 1'0 repeal section 23640, or modify it, then the Legislature could have expressly used language such as, “Notwithstanding section 23640 . . . or even, “Notwithstanding any other law . . . ." Of course, the Legislature made no such expression. As such, I would hold that the text 0f section 1001.95 provides no support t0 find that section 23640’3 prohibition 0n granting diversion for misdemeanor DUIs offenses has been set aside. II. Case law Interpreting Similar Diversion Statutes Notwithstanding this textual analysis, case law also supports the finding that DUl's are ineligible for diversion under section 1001.95. As the majority has catalogued, case law interpreting the relationship between section 23640 and other diversion statutes is nothing new. For over 30 years, couns have wrestled with similarly-worded diversion statutes and how section 23640 applies. But what is interesting is that most 0f the courts, with the exception 0f Hopkins v. Superior Court (2016) 2 Ca1.App.5th 1275, discussed below, have concluded that unless the Legislature expressly states so, section 23640 prohibits diversion for DUI offenses. Stafling in People v. Weathcriil (1989) 215 Ca1.App.3d 1569, notwithstanding Justice Johnson’s eloquent dissent, the majority court concluded that section 23202. the forerunner t0 section 23640, prohibited a DUI defendant from being granted diversion for defendants with developmental disabilities under Penal Code section 1001.20 ct seq, a diversion scheme that. similar to section 1001 .95, applied to all misdemeanors. (Id. at p. 1571-] 580.) Years later, the Legislature created a new statute for diversion for members 0fthe military and veterans, Penal Code section 1001.80. As the majority recognized, in People v. VanVleck (2016) 2 Cal.App.5th 355, 361, the Founh District Court of Appeal, Division One held that the prohibition on diversion for DUI defendants found in section 23640 applied and barred those defendants from military diversion. Ofcourse, in Hopkins v. Superior Court, supra, 2 Cal.App.5th 1275, the court held othem'ise and found that because the military diversion statute “‘applIies] whenever a [misdemeanor] case is before a court.” it was in irreconcilable conflict with section 23640 such that it was not appropriate t0 try t0 harmonize them. (Id. at pp. 1282-»83 [emphasis in originall) The Supreme Court granted review 0n both cases, but before the court had occasion t0 mle‘ the Legislature resolved the VanVleck and Hopkins conflict and amended Penal Code section 1001.80 to expressly include DUI cases as eligible. (Pen. Code, § 1001.80, subd. (l), added by Stats. 20] 7, ch. 179.) Unfonunately, we can only speculate what the Supreme Court would have done with this conflict, but importantly, what wc d0 know is that thc Legislature took it upon itself t0 resolve the ambiguity. Lastly, as identified by the majority, the Distn'ct Four, Division Two appellate court analyzed the mental health diversion statute in section Penal Code section 1001.36 and section 23640. In Tellez v. Superior Court (2020) 56 Ca].App.5th 439, the court held that section 23640 prohibited granting diversion t0 persons under the mental health courts. (Id. a1 p. 448.) A different panel later reaffirmed this same conclusion only a short time later in Moore v. Superior (Tour! (2020) 58 C‘al.App.5th 561, 579. My review 0f these prior cases leads me t0 find that unless a diversion statute States othelwise, section 23640 still operates a bar t0 diversion for DUI offenses. For instance, consider the language in section 1001 .36 as identified by 'l’el/cz and Moore. supra, which wcrc bath just decided in late 2020. 1n reviewing those Statutes togethelz I can find no substantive differences for me t0 conclude that section 1001 .95 should be treated differently from section 1001.36. Both sections provide the trial court with the power t0 grant diversion under certain circumstances. Both sections indicate that ceITain enumerated offenses are categorically ineligible for diversion. And. most imponantly. neither section references in any way DUls, section 23640 0r language that indicates that t‘hc exceptions arc exclusivc.5 In my opinion. there is no reason why 'I'cllc: and Moore do not dictate a finding that DUIs arc categorically prohibited under section 1001 .95." 5 Thc only slight difference between the two statutes arc that section 1001 .36 applies t0 both felonies and misdemeanors, and section 1001 .95 only t0 misdemeanors. However. as stated abovtx I do not find any relevance in such a distinction. If the Legislature finds that misdemeanors and felonies should be treated differently, that it their prerogative t0 do so. 6 Although i1 is perhaps dicta, thc defendant in Moore, supra. specifically argued t0 the appellate court that newly-created section 1001.95 demonstrated that thc Legislature intended t0 make DUls eligible for diversion under section 1001.36. The Coun was not persuaded. The Moore coun held: Moore argues that the Legislature’s failure 1'0 exclude misdemeanor DUI offenses from the new misdemeanor program (§§ 1001 .95-1 00] .97) shows that it intended t0 include them. (§ 100] .95. subd. (0).) Likewise, he claims that the Legislature’s failure t0 exclude misdemeanor and felony DUI offenses from eligibility for pretrial mental health diversion (§ 1001 .36‘ subd. (b)(2)) shows that it intended to include them. But whether misdemeanor DUI offenses arc eligible for diversion under new sections 100] .95 t0 1001 .97 is not bcfbre us, and even ifthey are. “it (loos notfnllow that [misdemeanor andfelonyl DUI offenses are [ / eligiblefor mental [waft]: diversion” under section 1001.36. (Y'cllcz. supra‘, 56 Ca].App.5th at p. 450‘ 270 Cal.Rptr.3d 41 8.) For the reasons explained. DU] offenses arc not eligible for diversion under section 100] .36. 7 In the end, l would find that it is for the Legislature to amend section 1001 .95 ifit seeks to include DUls for misdemeanor diversion. As the 001111 held in Moore, supra, when the defense argued that the policy of increasing diversion would be best be served if DUI defendants who suffer from qualifying mental health disorders are granted diversion, the appellate co urt responded, “Although this may be so, it isfor the Legislature to strike theproper balance between protecting public safety and mitigating the entry and reentry into the criminal justice system of individuals with mental disorders.” (58 Cal.App.5th at p. 581 [emphasis added].) I would rule the same. III. Conclusion Therefore, because I can find no textual support for finding that section 23640 has been repealed, nullified or otherwise set aside, and because precedent has analyzed analogous statutes and found DUIs are not included in similarlyoworded diversion statutes, I would find that DUIS are categorically ineligible for diversion under section 1001 .95. I would thus grant the People’s writ. I respectfully dissent. (Moore, supra, 58 Cal.App.5th at p. 582 [emphasis added].) 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE Hall of Justice Ruling on Matter Submitted (Appellate) 07/27/2021 8:30 AM Appeals APRI2100009 PEOPLE OF THE STATE OF CALIFORNIA vs Riverside Superior Court Honorable Sunshine Sykes. Judge Honorable Otis Sterling Ill. Judge Honorable Chad Firetag. Judge L. Concepcion, Courtroom Assistant Court Reporter: None APPEARANCES: No Appearances Court subsequently rules on matter taken under submission on: 05/14/2021 for Hearing on Appeal. The petitions are denied. Notice to be given by Clerk to District Attorney , RIVERSIDE SUPERIOR COURT. Public Defender. Page 1 of1 Pages Notice has bccn printed for the following Firm/Attorneys or Parties: APRIZ] 00009 Attorney, District Defender, Public 3960 ORANGE STREET 82-995 HWYll I. STE. 200 RIVERSIDE, CA 92501 [NDIQ CA 9220] RIVERSIDE SUPERIOR COURT 46200 OASIS ST lndio. CA 9220] Page 4 of 4 Pages EXHIBIT K 53 I, S. Sheryl Leung, do hereby swear that: 1. // I am over the age 0f 18 and a resident 0f the State of California. I have personal knowledge 0f the facts herein and if called as a witness, could testify competently thereto. I am employed as a Deputy District Attorney for Santa Clara County. Based on my review of the file for this docket as it is kept in the ordinary course of business, Real Party’s motion for court diversion came 0n for hearing in Department 34 on June 11, 2021. Petitioner’s office placed an order for transcripts that day but did not receive a copy until July 27, 202 1. Attached as Ex. F is at true and correct copy 0f the transcript of proceedings from that hearing. Attached as Ex. G is a true and correct copy 0f a 1987 DMV Evaluation 0f the California Drunk Driving Countermeasure System from the United States Department 0f Justice website at https://www.ojp.g0V/pdffiles l/Digitization/ 1 1 1960NCJRS.pdf I declare under penalty of perjury under the laws 0f the State 0f California, that the foregoing is true and correct. Executed August 13, 2021 in Santa Clara CountyMM Sheryl Leung Leung Declaration
