California has some of the most stringent DUI laws in the country as it strives to reduce cases of drunk driving. However, cases of driving while intoxicated are not treated equally. The charges filed against you and the penalties for a conviction will depend on your criminal history, where you were arrested, and whether or not you are a serviceman. Members of the armed forces are governed by military laws, which are more complex than civilian laws. Although society places significant expectations on military members to obey the law, the reality is that they are also human and might make mistakes and get arrested for DUI.

If you are a serviceman detained for a DUI, you should understand that there are special laws that apply to your case. Being arrested and charged doesn’t make you guilty of drunk driving. At Orange County DUI Defense Attorney Law Firm, we understand military DUI laws. We also know how to get the charges dropped through the military diversion program. Below we have discussed the DUI process and how it applies to military personnel.

Definition of a Military DUI

This form of DUI is when an active duty military member is arrested for driving while intoxicated by drugs or alcohol. When such an incident occurs to a military member, he or she is likely to face civilian criminal charges and military punitive measures for the same offense. Separate laws apply to the military personnel who are found guilty of driving while drunk or intoxicated by drugs.

Determining Jurisdiction for Military DUI

Military courts do not exclusively handle DUI cases involving military personnel. Civilian courts can also handle these cases, but it depends on where the DUI arrest was made. In the event both the civilian and military authorities file DUI charges against you, they will work together during the prosecution of the case. Note that even if the civilian court acquits you of the charges, the military court can still pursue punitive action. The military has the authority to handle all crimes committed by active-duty military personnel. However, when the crime is committed wherever you are, the civilian court assumes the power to prosecute your case. Below are some of the circumstances used to determine jurisdiction for military DUI:

If You are Arrested for a DUI on Base

 If you are charged with a DUI on a military base, you will be charged under the power of UCMJ laws (The Uniform Code of Military Justice). You will be subject to non-judicial and judicial punishment under the adverse administrative action and the court-martial. For the DUI that occurs in a military base, the civilian court will not be involved.

If You are Arrested for a DUI Off Base

If the state or civilian police officer stops you for drunk driving off the military base, the civilian court has the power to file criminal charges against you. Keep in mind that even if a civilian court charges you for driving under the influence, you can still face administrative action from your commanding officer.

If a Civilian is Arrested for DUI on a Military Installation

In the event a civilian is arrested for a DUI in a military base, he or she will be charged in a federal court. But the California DUI laws will be used to convict him or her. The reason the federal court uses state DUI laws on civilians arrested in military installations is that there are no federal laws that apply to civilians. The majority of civilians arrested for DUI in the military installation include civilian employees or persons with access to the base and civilian family and friends of military members.

Penalties of Military DUI

If you are a member of the armed forces and you are convicted for drunk driving, you are subject to civilian court penalties and penalties from your commanding officer. The sentences from the commanding officer are dependent on your rank and branch. The penalties fall into two main categories, which are punitive and administrative action.

Punitive Action for Military Personnel

Punitive action includes:

  1. A Court Martial

It is a military court that conducts a trial in the same manner as the civilian court. If a drunk driving charge is severe, it will go to a court-martial where penalties are stringent. As per Article 111 of the UCMJ, any military personnel who operates a motor vehicle while impaired by drugs or alcohol is subject to court-martial punishment. There are various kinds of court-martial, namely summary, special, and general court-martial. The summary court-martial focuses on minor offenses like DUI. A DUI conviction under this court is subject to:

  • Forty days of hard labor
  • Confinement
  • 30 days of reduced rank
  • Pay cut for 30 days

The special courts-martial focus on more severe cases. Its operations are similar to those of a civilian criminal court where you, as the defendant, require a defense attorney. If convicted under this court, the penalties are:

  • Twelve months of confinement
  • One hundred and eighty days of no pay
  • Discharge from the service
  • Ninety days of hard labor

General courts-martial deal with the most severe military offenses. If a military DUI offender is convicted under this court, the potential maximum sentence is a dishonorable discharge from the armed forces.

  1. A Non-Judicial Penalty

Non-judicial punishments are listed under Article 15 of the UCMJ. It allows the superior officer to handle all minor cases that occur in a military installation. When an army member commits a DUI offense, a court-martial trial can be requested. The jury for the hearing is composed of warrant officers and other enlisted members who listen and determine the case. If the offense is a minor one, UCMJ article 15 grants the superior officer authority to decide on the charges. If you are found guilty, you will be subject to:

  • Restrictions
  • Reprimand
  • Additional duties
  • Pay related penalties

The punishment depends on the magnitude of the DUI offense.

Administrative Action

This action can result in some of the following penalties:

  1. Mandatory Drug or Alcohol Treatment Program

Under this penalty, you are required to complete a mandatory substance abuse treatment program.

  1. Additional Duty

Here, you are assigned extra hours of labor during the week. You might also be required to work during the weekends and given corrective tasks.

  1. Restriction Limits on Base 

Also, you might be required to remain in the military base during weekends and even get your leave privileges restricted.

  1. Written Letter of Reprimand

You may also receive a formal letter detailing the offense and the penalties you received for conviction of the crime. The letter goes to your military record, and any time you are looking for a promotion or contract renewal, the conviction history might hinder your chances.

Criminal Court Penalties

Not all persons convicted of military DUI are eligible for the military diversion program. If you don’t qualify for the program, you will have to face criminal penalties. The punishment includes:

  • License suspension
  • Not less than 60 months of probation
  • Mandatory substance abuse treatment program
  • Imprisonment
  • Mandatory installation of an interlock device

Looking at all the above penalties, you realize that a DUI conviction can be life-changing. Therefore, you must get a reasonable DUI defense attorney to build the right defense to avoid a conviction that comes with harsh penalties.

Legal Defenses for Military DUI Offenses

It is essential to note that despite a DUI criminal proceeding dismissal, you can still face punitive action from your superior officers in the service. You must begin to strategize early on how you will defend yourself against the DUI charge and avoid military consequences. Some of the defenses that you can use include:

  1. The Sobriety Tests Were Inaccurate

The court relies on BAC tests to determine the level of intoxication by the driver. It means that being accused of drunk driving alone is not enough unless there is evidence to prove it. The tests are used as proof. Your defense attorney can contest the test results by arguing that the chemical and sobriety tests were inaccurate, then you cannot be convicted of a DUI. You can bring in expert witnesses to support your claim on the inaccuracy of the test results.

  1. Lack of Probable Cause

Police need a probable reason to make a traffic stop. If there is no reason for the officer who stopped you on traffic to do so, you can argue that you were stopped for other reasons other than those stipulated in the law. When there is no probable cause for the stop, the evidence presented in court will not be enough to show you were operating a motor vehicle when intoxicated. The proof will be thrown out, and the case will be dismissed because of a lack of evidence.

  1. Violation of the Defendant’s Rights

In the event your rights were violated during the DUI court proceedings, your attorney can contest the charges and take a plea deal or have the case thrown out. Some of your rights in a court-martial hearing include:

  • The right to know what you have been arrested for
  • The right to stay silent to avoid self-incrimination
  • The right to be protected from double jeopardy

The good thing with military courts is that despite imposing harsh penalties to military DUI convicts, before the conviction, they examine all the evidence carefully. With a competent attorney, you can use this to your advantage and build a solid defense that will see you acquitted of the charges.

The Military Diversion Program 

Everyone deserves a second chance, even military DUI convicts. In California, the military diversion program presents veterans and active-duty military personnel an opportunity to mitigate their mistakes. California PC 1001.80 avails the military diversion program as an alternative for jail time. Under the program, as a defendant, you don’t have to plead guilty. The court sets aside the hearing so that the defendant can participate in treatment and education programs.

Once the program is completed, the charges are dismissed. Failure to complete the program, on the other hand, will make the criminal proceedings return. So, if you have served or are currently serving the armed forces and you are faced with DUI charges, you can protect your criminal record through a diversion program. The challenge is that not everyone is eligible for the program despite being in the military. 

Conditions Required to Qualify for PC 1001.80

There are certain conditions one must meet to be eligible for this program. Some of these conditions include:

  • You have only been charged with a misdemeanor or multiple misdemeanors like California DUI
  • You are a veteran or currently serving the United States military
  • As a result of your military service, you have suffered PTSD, military sexual trauma, mental health problems, and substance abuse
  • You have not taken part in the military diversion program in the past
  • You have waived your rights to a trial and agreed to the program

Conditions that Might Make You Ineligible for the Program

You don’t qualify for this program if:

  • You have been found guilty of the same crime - You will be referred to a veterans treatment court rather than the military diversion program. The good thing with veteran treatment is that it helps you achieve the same goal as PC 1001.80. The difference is that there are more structures and supervision if you are eligible for the veteran's treatment court.
  • You have been accepted in the military diversion program multiple times. If you have been admitted to military diversion many times, it means something is not working out well for you. Therefore, the referral to a veteran’s treatment court where the treatment is suitable for you.

The Admission Process Under PC 1001.80

In case you are wondering how you can get the military diversion, here are the steps that will lead you to be admitted in the program:

  1. The process begins with your DUI defense attorney requesting a diversion program in court. The judge might grant or deny you the request.
  2. Once your attorney has filed for PC 1001.80, the court will vacate any scheduled court dates on your DUI charge. After, they will schedule a hearing on the military diversion calendar. The prosecution attorney handling your case will then receive a copy of your request and the new court date.
  3. Before the new hearing, you should file a motion containing facts on why you should be admitted to the program. In the motion, you have to provide documentation showing you served in the military and have health records of your mental health assessment and evaluation. The best time to file a motion is fifteen days before the diversion program hearing date. That way, the prosecution will have time to go through the motion and respond. If the prosecution is opposed to the motion, they should inform you at least five days before the hearing.
  4. If the court feels that you don’t qualify for the program or it will not be in your best interest, they will deny you the request. They will then bring back the court date they had vacated when the request was made. After a request for the program is turned down, the usual DUI case resumes.
  5. When the court feels that you qualify for the program and they have your consent, you will be placed in the pretrial diversion program. This means that your DUI criminal charges will be postponed for no more than twenty-four months as you receive treatment. The court will set the conditions for the program and the kind of treatment they are going to undertake. After, a date for reviewing your treatment will be scheduled where you have to provide proof showing you have adhered to the conditions of the program. If the court is satisfied that you have complied with their terms and completed the military diversion, your military DUI case will be dismissed. Your criminal record will also be cleared.

Treatment Programs Available Under PC 1001.80 

The court is the one that decides on what treatment service is most suitable for you as the defendant. If you have suffered trauma as a result of the military service, the court is likely to pick the treatment that has proved successful in the past. You are likely to be sent to a U.S. Department of Veteran Affairs or a program that is run by the U.S. Department of Defense. The court and the treatment programs will work together to ensure you get the best treatment by the time the program comes to an end. You might also be referred to the Orange County mental health agency but only if the agency is ready to:

  • Be responsible for your treatment
  • File reports with the court
  • Coordinate your referral to the Orange County veterans service officer

Conditions for Participation in Military Diversion

Any conditions assigned to you when the diversion program is granted must be complied with. These conditions include:

  • Mandatory attendance of treatment program for one to two years
  • Counseling for substance abuse or domestic violence
  • Attendance of First Conviction Program or MAAD classes
  • Submitting random alcohol or drug tests
  • Admission in an alcohol or drug treatment center for an approved plan
  • Submitting satisfactory progress reports every three months

The agency in charge of your program is required to submit reports to the prosecutor and court about your progress after a duration not less than 180 days.

Sealing of the Arrest Record After a Successful Completion of Military Diversion Program  

PC 1001.80 program lasts for between one and two years. If you complete the program within the period provided by the law, the court will dismiss the military DUI criminal charges. Also, your arrest will be treated as if it never happened in the first place.

Termination of the Program

Another thing to note about this program is that the court can terminate it before the duration provided by the law is over. If based on the half-yearly reports your agencies send to the court, and the prosecution indicates that you are not performing well and that the program is not benefitting you as it was initially intended, the court might call for termination. After the program has been terminated, you will be back to the DUI criminal charges.

Exceptions of Successful Completion of PC 1001.80

Although once you have completed the program, it cleared from your record, there are certain exceptions where you have to disclose the DUI arrest. These exceptions include:

  • The department of justice will be notified or made aware of your case and the circumstances surrounding your arrest
  • If you are applying for the position of a peace officer, the department of justice will be forced to disclose the military DUI arrest that led to the military diversion program
  • When applying for the position of a police officer, you must disclose your military DUI arrest when filling out the questionnaires

Driver’s License Suspension and PC 1001.80

If you were facing a misdemeanor DUI, you are eligible for a military diversion program. However, even after you complete the program, the authority of the California DMV will not be limited to the issue of license suspension. It means you might complete the military diversion program and still have your driving privileges suspended.

Find a Orange County DUI Defense Attorney Near Me

If you have been or are currently a serviceman, despite high expectations of society, you might find yourself being charged with a DUI. In case this happens, you will be facing punishment from your superior officer or the court-martial. We encourage you to call the Orange County DUI Defense Attorney Law Firm at 714-740-7866. Our attorneys are devoted to ensuring that you are not incarcerated or suffer military consequences because of a mistake.

We will do our best to get you into the military diversion program. But if that doesn’t work, our attorneys are well versed with the UCMJ laws. We are ready to offer you the best defense to prevent penalties of a military DUI conviction. Contact us today so that we can discuss your case and make preparation for DUI criminal charges and military court.