Metropolitan News-Enterprise


Friday, November 18, 2016


Page 1


S.C. to Mull Scope of Military Diversion Law




The California Supreme Court has agreed to determine whether a statute prohibiting pretrial diversion in drunk driving cases applies to a recently enacted special program for military personnel and veterans.

The justices, at their weekly conference Wednesday in San Francisco, agreed to resolve a conflict between Court of Appeal panels on the issue.

The Fourth District’s Div. One, in People v. VanVleck (2016) 2 Cal.App.5th 355, held that persons charged with driving under the influence offenses cannot obtain diversion under Penal Code §1001.80, which was enacted in 2014.

This district’s Div. Four reached the opposite conclusion in Hopkins v. Superior Court, B270503. That panel acknowledged the conflict with VanVleck and urged the Legislature to clarify the statute.

Kyle VanVleck was charged with driving under the influence and driving with an excessive blood alcohol level, both misdemeanors. He asked to be placed in military diversion, explaining that he was an active duty Marine who had developed alcohol dependence during his service.

The statute permits the court to divert a misdemeanor defendant who is a current or former member of the military and “may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service.”

Superior Court Judge Daniel F. Link granted the request, concluding that lawmakers intended military diversion to be an exception to Vehicle Code §23640 which prohibits diversion in all DUI cases. The prosecution’s appeal in that case was consolidated with its appeal from another order by Link, granting military diversion to Jeremy Kluesner.

Kluesner was charged with DUI, driving with an excessive blood alcohol level, and driving without a valid license. He claimed to be an Army veteran suffering from PTSD, traumatic brain injury, and alcohol abuse as a result of his service.

After the San Diego Superior Court Appellate Division certified the appeals to the Court of Appeal, that court reversed. Presiding Justice Judith McConnell reasoned that lawmakers, in enacting the military diversion statute, had to have been aware of a prior Court of Appeal decision holding that a similar statute, extending diversion to defendants with cognitive developmental disabilities, did not create an exception to the ban on diverting DUI defendants.

“Although the military diversion statute was enacted 23 years after section 23640, the rule that the more specific statute controls over a general one prevails over the rule that the later-enacted statute controls,” McConnell wrote. “Thus, pursuant to section 23640, current and former military members charged with driving under the influence offenses in violation of section 23152 and 23153 are ineligible for diversion.”

Justice Thomas Willhite, writing in Hopkins, reasoned otherwise.

Terence Hopkins, who supported his request for diversion with letters from professionals at the Department of Veterans Affairs opining that he had PTSD as a result of his naval service in Afghanistan, is eligible for military diversion, Willhite concluded.

He found the general versus specific rule unhelpful in the case, saying the military diversion statute is arguably more specific, since it applies to only one type of diversion program. He questioned the VanVleck court’s presumption that the Legislature was aware of the prior case, said the presumption would not be conclusive in any event, and said there were “strong indications” the Legislature intended to apply the military diversion statute to all misdemeanors.

He cited legislative history, noting that a bill analysis expressly noted that diversion under existing law was limited to non-DUI offenses, but using “no such qualifier” when describing military diversion, which was to apply to “misdemeanor or jail felony” cases.

The Supreme Court voted unanimously to grant review in the conflicting cases.

In other conference action, the justices agreed to decide whether a statute denying certificates of rehabilitation to felons who have completed probation and are subsequently incarcerated violates the constitutional right to equal protection, while felons who complete prison terms and are subsequently incarcerated are eligible for such certificates.

The First District’s Div. One ruled in People v. Chatman (2016) 2 Cal.App.5th 561 that the statute is unconstitutional.


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