Long Beach, Second-Time DUI, Car Accident, 0.248% BAC

Our client insisted to the officer that the tractor trailer was changing lanes to the right, into his lane, as semis often do after going through a freeway interchange because a new right-most lane will open up.  Moreover, our client would have to be blind to not see an 18-wheel tractor trailer passing him to his driver’s side and, making matters worse, very foolish to then change lanes to the left into such a large vehicle.

Nonetheless, our client was then arrested for DUI and at the CHP station, submitted to a breath test with the ethanol in his breath measured at 0.248%.  This was triple the legal limit, as the reader may know.  The client was released the following morning, after being in police custody from about 11:00 p.m. until 8:00 a.m. the next day, which meant he served two actual days in custody.

Our client had suffered a prior DUI eight years earlier in 2012, also in the Long Beach Superior Court, so this new DUI was considered a second-time DUI.

In our client’s first DUI, he had used the services of the public defender and had been very disappointed in how the case resolved, which he only realized later when comparing his plea bargain to others in his DUI classes.

This time, he decided to hire a private defense attorney.  A friend of his recommended Greg Hill & Associates, who had represented his friend, so the client called our office and spoke with Greg Hill.

The client explained the facts of the case and his prior DUI, as well as his concerns with missing work and the mandatory minimum jail time required in a second-time DUI.

Greg asked follow-up questions about the collision and addressed the client’s concerns about the terms of resolving the case.  Greg explained that there was a new judicial diversion law that would take effect on January 1, 2021, and that DUI was not excluded, so Greg would request judicial diversion for the client.  Greg explained that since the case happened on the 710 Freeway, the matter would be handled by the Long Beach City Prosecutor’s office, not the District Attorney’s office.

At the arraignment on the case in the Long Beach Courthouse about two months later, Greg appeared on the client’s behalf and discussed the case with the Long Beach City Prosecutor assigned to the case.  The initial offer to resolve the case was that in exchange for a plea to a violation of Vehicle Code § 23152(b), our client would serve 90 days in Los Angeles County jail and perform 60 days of Cal-Trans labor, while being placed on three years of informal probation with an obligation to enroll in and complete the SB 38 eighteen-month alcohol awareness program and pay a court fine of $510 plus penalties and assessments.

Greg could not believe how rough the initial offer was and questioned the young, brand-new attorney from the Long Beach City Prosecutor’s office why such harsh terms were being offered.  The attorney nonchalantly explained, as best he could with no experience handling such cases, that the offer was so high because of the client’s high BAC, the collision and the fact that it was a second-time DUI.

Greg then prepared a motion for imposition of judicial diversion, attaching excerpts of legislative transcripts from the debate on then-Assembly Bill 3234, as well as points and authorities on why judicial diversion was proper in this case.  The motion also explained why our client was eligible and suitable to diversion.

The judge hearing the motion in Long Beach disagreed, explaining that Vehicle Code § 23640 barred diversion on a DUI, which the legislature had debated and found inapplicable. 

The hearing took a long time, almost an hour, of respectful debate, but Greg was unable to persuade the judge to change his ruling.

However, the Long Beach City Prosecutor, who largely sat quiet during the hearing, changed the offer dramatically to just four days of county jail (our client had two days actual credit, plus two days of good-time, work-time credit), 45 days of community service, the SB-38 program and a court fine of $510, plus penalties and assessments.  There would also be a restitution hearing as to damage to the semi-trailer.

Our client accepted this offer.

We present this summary to exemplify how even losing a motion can be a victory, as we lost on judicial diversion, but we made the prosecutor realize that the offer needed to be lowered because our motion made him reconsider the case facts, and perhaps, we hope, realize trial would be unpleasant for him even under the facts of a case like this.

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