The court abused its discretion in denying military diversion in a DUI case

In Wade v. Superior Court (2019) 33 Cal.App.5th 694, the Court of Appeal reversed a trial court decision that denied a defendant’s request for military diversion in a DUI case.

In denying the request, the trial court had noted that the charge of driving under the influence was “inherently dangerous.” Id. at 704. The trial court stated: “Also the fact that the defendant was not a passive participant …. He decided to drink alcohol and decided to drive a motor vehicle. So that being said, in this particular case, the Court believes that public safety would dictate that this particular case not come within 1001.8[0], respectfully.” Id. The appellate division affirmed the order in a two-to-one opinion.

The defendant sought relief in the Court of Appeal. The court first noted that the purpose of the military diversion statute (Penal Code section 1001.81) is the treatment and rehabilitation of active duty and military veterans. The trial court’s denial was based chiefly on the nature of the offense, rather than on application of the statutory criteria. The trial court used an information sheet compiled in collaboration with the local offices of the district attorney and public defender. The sheet contained 29 factors that resembled the felony sentencing guidelines set forth in the California Rules of Court. The Court of Appeal noted that none of the factors on the information sheet “directly addresses a defendant’s disposition for ‘benefiting from the treatment and services provided under the diversion program.’” Id. at 715 (quoting Penal Code section 1001.81, subd. (c)).

The Court of Appeal determined that the trial court abused its discretion in deciding the matter primarily on the nature of the offense, rather than on the statutory criteria. The court held: “We conclude that the trial court’s considered criteria—including the ‘inherently dangerous’ nature of the offense, Wade’s 0.16 blood alcohol concentration, his ‘nonpassive’ role in committing the offense, and his purported ‘bad driving’ at the time of the offense—was not an exercise of informed discretion because there is no basis on which to infer that the court related those criteria to Wade’s suitability for treatment and rehabilitation.” Id. at 716.

About the Author

Lara J. Gressley

Lara Gressley

Lara Gressley has been an attorney for over two decades. She focuses her practice on criminal defense, DUI defense, and writs and appeals in state and federal court, and has worked on cases before the United States Supreme Court. Lara also lectures lawyers across California on various criminal defense topics.

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