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Law Offices of Aaron Bortel

In Marin County, two judges have now dealt with the master calendar handling misdemeanor cases, and have granted diversion motions on misdemeanor DUIs. In essence, they believe that DUIs are eligible for diversion under the new law AB 3234 and Penal Code Section 1001.95. Since these judges have determined that they are eligible, they are considering the suitability on a case-by-case basis. This is where the focus has been in our Marin County motions and our attempts to obtain DUI diversions for our clients.

Every case is different. For a first-offense DUI with a low alcohol level and a cooperative defendant in Marin County, it’s likely that the defendant will be deemed suitable for diversion. It is also helpful if the defendant has enrolled in DUI school and is attending self-help classes like AA meetings and or therapy prior to the Diversion motion. The judge needs to determine whether the individual is amenable to treatment, and therefore to the diversion program. The judge needs to know whether the diversion program will actually help the individual with things like employment and housing opportunities in the future. If the motion is put together correctly and is argued properly, then under the right circumstances, a person in Marin County has a good chance of being granted a diversion.

I have yet to see any diversions granted to people in Marin County who have received a second or third-time DUI. However, a recent client of mine was granted a diversion despite the fact that the DUI involved an accident (it also involved a low alcohol level). This situation stands out because the DA office was not even willing to reduce the charge (they almost never are when there’s an accident), even though my client had a low alcohol level, no one was hurt in the accident, and there was no property damage. This was a huge, life-changing win for my client, who has been out of work due to COVID-19. We are extremely happy that the court followed the law, looked very closely at my client, and determined that he was amenable to treatment and that the diversion was necessary in order to improve his life.

Interestingly, judges are still struggling with what to do in cases involving extremely high alcohol levels (e.g., three times the limit). If on top of that, the driver was speeding excessively, refused a task with the police, or was unruly with the police, then the judges have to exercise careful discretion and figure out where to draw the line on a case-by-case basis. Recent case law tells us the Court should not make part of their decisions looking at how dangerous DUIs are; they have to consider whether the defendant is amenable to treatment and has stopped drinking, started therapy and DUI school, shown remorse, completed community service, etc. prior to the motion.

Marin County is a very conservative county, but it has judges that are looking at this issue closely and are accepting this diversion. Even the DA has conceded that many people are eligible, but they are also arguing that DUIs are inherently dangerous, and therefore should not qualify for diversion, but that’s not the issue at hand in these motions.

We’re in the midst of a really interesting time, and the county’s approach has been very good and thorough. Hopefully, they will continue to open up the suitability issue to people who really need the diversion, because most people are first-time offenders. The legislature doesn’t want people to have a DUI conviction on their criminal record forever, especially when they haven’t messed up before.

We’re human, we make mistakes, and that seems to be the legislature’s position regarding DUIs in California. No one likes DUI offenses and no one thinks it’s okay to drive while impaired, but a conviction can be very crippling for people. Diversions will not be granted in cases involving serious accidents and injuries, but may be granted in less severe cases where the defendant is not only remorseful, but also willing to undergo treatment.

It’s important to realize that anyone who is granted a DUI diversion is still going to have to comply with many requirements over a period of time. For example, in the recent DUI case that involved an accident but was still granted a diversion, my client will be on a two-year diversion program during which they will be barred from having any alcohol in their system when driving, and will have to complete community service, DUI school, and AA meetings. In addition, there will be DMV ramifications, such as the license suspension, restriction, and interlock device requirement.

In other words, just because someone is granted a diversion does not mean they are getting off without penalty. In fact, the penalties associated with diversion can be even more intense than those received by someone who does not receive diversion.

For more information on DUI Diversion In Marin County In CA, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.

Aaron Bortel

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