Sunday, November 9, 2014

DUI Excluded From New Legislation

Prop 47 brings good news to many criminal defendants but the news is not helpful to DUI offenders.  Prior to Proposition 47's amendment to section 666, subdivision (a) allowed a petty theft conviction to be punished as felony only if the defendant had been convicted three or more times of specified crimes and had served a term for the offense in any penal institution or had been imprisoned therein as a condition of probation. Former section 666, subdivision (b) allowed a petty theft conviction to be punished as a felony when the person had been convicted of only one of the enumerated offenses (with the same imprisonment requirement) if the person was required to register or had previously been convicted of ANY serious or violent felony. The newly amended version of section 666 allows a petty theft conviction to be punished as a felony if the defendant (1) has been convicted of one of the specified crimes and incarcerated for the offense and (2) is required to register under CA law has a prior violent or serious felony conviction under section 667, subdivision (e)(2)(C)(iv), or has a section 368, subdivision (d) or (e) conviction.

Though not helpful to DUI offenders with prior convictions, The eligibility requirements for misdemeanor punishment in amended section 666 differ from the other statutes affected by Proposition 47. The other statutes provide that the offense at issue will be punished as a misdemeanor unless the defendant has one or more prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290. In contrast to this, amended section 666 states that petty theft with a prior may only be punished as a felony if the above requirements are met. The nature of prior convictions permitting felony treatment is both narrower (prior conviction of only a certain class of serious or violent felonies elevate petty theft to felony level) and broader (any person required to register under SORA and any prior conviction of section 368, subdivision (d) or (e) (which is not a serious or violent felony) elevates petty theft to a felony). Rather than only excluding defendants who have one or more prior convictions for an offense requiring registration under section 290, amended section 666 excludes defendants who are required to register pursuant to SORA (Pen. Code, §§ 290-290.024). There may be cases where a defendant is required to register under SORA based on an offense that is not listed in Penal Code section 290.