Developments in Law Regarding Veterans
| Publication year | 2019 |
| Author | By Justice Eileen C. Moore |
By Justice Eileen C. Moore
Passed in 1998, California Vehicle Code § 23640 states that courts are prohibited from diverting drunk drivers away from criminal prosecutions. Thus, when Penal Code § 1001.80 became effective in 2015, matters got a bit confusing. The newer statute states that when a person is or was in the military and suffers from certain maladies as a result, and is accused of any misdemeanor, the court may divert the person. Penal Code § 1001.80 applies to defendants suffering from such conditions as traumatic brain injury, post-traumatic stress disorder, sexual trauma, and substance abuse as a result of military service, and states the court may place that person accused of a misdemeanor in a pretrial diversion program.
Appellate courts interpreted the statute differently. In People v. VanVleck (2016) 2 Cal.App.5th 355, the appeals court concluded that military diversion is not available for defendants charged with driving under the influence. In Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275, the appeals court reached the opposite conclusion. The California Supreme Court granted review in Hopkins.
The language in Hopkins included: "We urge the Legislature to act by amending section 1001.80 to express its intent with regard to military diversion in DUI cases." Apparently noticing that language, the Legislature amended the statute before Hopkins could be heard in the Supreme Court. Effective August 7, 2017, the present iteration of the statute clearly states that veterans and active duty personnel may be placed on diversion "notwithstanding any other law."
But the amended statute did not end matters. In Wade v. Superior Court (2019) 33 Cal.App.5th 694, the prosecution prevailed upon the trial court to deny diversion even though the charged crime was a misdemeanor and the defendant was a veteran suffering from one of Penal Code § 1001.80's listed maladies. The court, citing public safety as its reason, denied the man's request for military diversion. The appellate court applied the abuse of discretion standard of review and reversed, stating: "Simply put, the trial court in this case did not have discretion to deny Wade's request based on the inherently dangerous nature of driving while intoxicated, because the Legislature implicitly considered the commonly occurring features of DUI offenses but nevertheless elected to include them in the statutory program without restriction."
Another criminal statute was amended in 2019. Penal Code § 1170.91 became effective on January 1, 2015. It states that when a court...
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