Our client, age 23, was returning home after an evening of dinner and drinks in Hermosa Beach. He was traveling on the southbound 405 Freeway near the Main Street off ramp just prior to reaching the 405/710 Freeway interchange. Our client was in the “fast lane” to the far left.
A CHP officer was also traveling southbound on the 405 freeway, but in the “slow lane” to the far right of the roadway. The officer allegedly observed our client traveling at a speed well above the posted speed limit of 65 miles per hour.
The officer then sped up his car and allegedly bumper-paced our client for half a mile at 85 miles per hour. The officer claimed our client was also weaving within his lane.
The officer then pulled over our client on the side of the 405. Our client allegedly then failed the filed sobriety tests (FST’s) and blew a breath sample measuring 0.12% blood alcohol content (BAC). The client was then arrested and issued two tickets – one for DUI with its own arraignment date and one for speeding with a separate arraignment date.
The client called Greg Hill & Associates and immediately spoke with Greg Hill. The client and Greg discovered they had attended the same high school, although separated by 25 years. The two discussed the case facts and how the CHP officer created a double jeopardy issue by issuing two separate tickets for the same conduct, as well as a claim-splitting violation that was ruled unconstitutional in Kellett v. Superior Court
(1966) 63 Cal. 2d 822. In other words, all claims against a defendant regarding one course of conduct normally should be joined in one action to avoid inconsistent rulings.
Greg then was retained and filed a “Kellett motion” to have the DUI action dismissed, as Greg appeared first on the speeding ticket and resolved it. Therefore, the DUI matter was barred by not being brought at the same time as speeding violation.
The judge hearing the Kellett motion disagreed, stating for DUI cases, there was an exception, but not citing to any legal authority. When Greg requested the judge’s basis for finding such an exception, the judge defiantly told Greg he could appeal his ruling if he wanted.
Our client, however, could not afford the expense of an appeal and thus entered into a plea bargain for DUI. The prosecutor was unwilling to offer a wet reckless due to the allegation of speeding so far above the speed limit.
The client then began probation, quickly finishing the AB541 three-month alcohol awareness program and paying the court fees of $1,443.
Being on probation, however, was extremely damaging to his work, which required him to travel overseas. When he traveled with clients and was re-entering the United States, he could be stopped at customs and held because he was on probation for DUI.
In Canada, it was worse. He could not rent a car and most of his work was in remote locations where paying for a taxi or Uber would be prohibitive.
The client thus asked Greg if he could have his probation terminated early. Greg explained that normally, such a motion is not entertained at all by a judge until the client completes all tasks and half the probationary period.
Consequently, almost to the day of reaching the half-way point, the motion was filed.
The hearing was conducted before a brand new judge with no criminal background.
World War III erupted, so to speak. Such motions are often “cake walks,” but not in this case. The young DA, a young new attorney, argued that under People v. Segura
(2008) 44 Cal.4th 921, the judge had no discretion to terminate probation early because the length of probation is a material term of the plea bargain.
The California Supreme Court in Segura reversed an appellate level court that ruled a trial court erred in denying a motion to modify probation. In reversing the appellate court, the California Supreme Court held that when the defense and the prosecution arrive at a negotiated plea bargain, some terms are considered material because they are hotly negotiated and in Segura, the critical term was the length of time defendant had to serve in county jail.
Segura was a far more serious case than this case and on that ground alone, the judge in Compton sensed he needed to look at Segura more closely to see if it was binding.
The judge thus asked for both parties to give him about ten minutes to read the case and then continue the hearing.
Greg was familiar with Segura and its facts. Mr. Segura, not a U.S. citizen, was charged with felony domestic violence with allegations that it was a strike based on the injuries inflicted. He had a prior strike from over ten years ago, as well as another prior felony. Under California sentencing rules, it was mandatory that he serve a minimum of two years in state prison. However, his attorney and the prosecutor negotiated a plea bargain that placed him on formal probation and that he only had to serve one year in county jail.
Mr. Segura was then picked up by INS and deportation proceedings began. As his sentence involved 365 days or more in custody, he was subject to removal. So he filed a motion to modify probation to reduce the county jail term (which he had served only 25 days anyways, being released early) to less than a year to avoid deportation. The trial court said it could not modify the plea bargain because the one year in county jail was a material term of probation. The appellate court reversed and then the California Supreme Court reversed the appellate court.
This was explained this to the judge and he agreed that the length of probation was not a material term at all. The material terms were the length of the alcohol awareness program and the court fines and fees only. The judge thus granted the motion, much to the disappointment of the young DA.
The petition for dismissal (expungement) was then filed and granted by the same judge, ending this case with a not guilty plea and dismissal, not a conviction. The client was happy.
For more information about early termination and expungement issues, please click on the following articles:
- Early Termination of Probation – What Does a Judge Consider?
- Is Expungement Worth It?
- Trial Court That Denied Expungement Because Petitioner Given a Five Year Joint Suspended Sentence Is Reversed on Appeal