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Long Beach, Military Diversion Motion Denied, 0.28% BAC
It would be misleading and a disservice to a reader of this website to suggest that all motions for military diversion are granted. The following summary is of one that was not, despite the judge acknowledging Andrew Wade v. Superior Court (6th App. Dist., 2019) 33 Cal.App.5th 694, wherein the Sixth Appellate District commented that military diversion should be granted liberally, rather than selectively.
From 1973 to 1974, our client was stationed in Iwakuni, Japan where he served as an Air Traffic Control Officer. He quickly advanced to the rank of First Lieutenant, or O-2. During the Vietnam era (and to the present), the military culture promoted the use of alcohol as an acceptable way to deal with the constant stress of serving during wartime. Our client internalized his growing stress not only from his job, but also the anxiety of waiting for his deployment to Vietnam and the then-understood grim fate that awaited him there. He turned to alcohol to cope with such anxiety and numb some of the stress.
Once he was discharged from the Marine Corps, he continued to drink heavily and regularly. The stress of coming home to a country that did not support the war and then trying to reconnect with his family exacerbated his dependence on alcohol. He continued to turn to alcohol to numb his stress. Over the years, he increased his alcohol consumption just to get through each day.
While he was successful in hiding this habit for many years, it manifested itself in driving while under the influence of alcohol in 2018 (in which case he received military diversion with Greg Hill as his counsel).
In May 2023, he was again arrested for violation of Vehicle Code §§ 23152, subsections (a) and (b), as well as Vehicle Code § 20002(a) (hit and run). In this 2023 case, he ran into a parked car at approximately noon and then continued driving down the street before he was stopped by the owner of the parked car. The owner witnessed the collision with her parked car and then got into it and drove after our client, eventually blocking him before he drove further. She then called the Los Angeles Police Department, Harbor Division, who arrested our client.
Our client’s BAC was 0.28%, despite over three hours passing before his blood test.
The client then called Greg Hill & Associates and spoke with Greg. Greg told him that he could certainly request military diversion again, as there is no bar against military diversion even if one received it earlier. Greg told the client that he needed to contact the VA for treatment and also suggested he start the SB 38 eighteen month alcohol awareness program ASAP.
The client started the SB 38 program, but was unable to enroll at the VA because his income exceeded the maximum limit for VA treatment. Therefore, he had to find an alternate treatment provider, which he did eventually.
Our office then prepared a motion for imposition of military diversion and filed it at the Long Beach Superior Court.
The young prosecutor assigned to the case filed a written opposition, claiming our client was lying in stating he was turned away from the VA due to his income. She also argued that our client misrepresented the facts of the case by not disclosing he had a prior grant of military diversion six years earlier.
At the hearing on the motion, Greg showed the judge documentation that our client received from the VA stating he was turned away because his income exceeded VA limits for treatment. Greg also acknowledged that our client had previously been granted military diversion.
The judge explained that she did not think our client was suitable for military diversion because he received it previously and it “did not work.” She cited specifically to our client’s high BAC as indicating he clearly was still abusing alcohol. She therefore denied the motion.
Our client ultimately resolved the case on more standard DUI terms for a second-time DUI, including three years of informal, or summary probation, the SB 38 program, ten days of county jail (due to the hit and run), fines of $500 plus penalties and assessments (total of approximately $2.390) and payment of restitution to the owner of the parked car.
This summary is offered as something of a cautionary tale that military diversion motions are not a “slam dunk” in all cases, as such a motion certainly was not in this case.
