California Court of Appeal

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Dietrick v. Superior Court, C073008

Petitioner's petition for a writ of mandate to compel the trial court to dismiss the case charging him with driving under the influence of alcohol (DUI), DUI with a blood-alcohol level above .08 percent, and as to each count alleged, that he had been convicted of a felony DUI within the past 10 years, is denied, where:1) the two-dismissal rule is inapplicable to these procedural facts; 2) the magistrate's act of finding the prior alleged DUI conviction not true was not the dismissal of any felony charge as petitioner states, but was instead merely the dismissal of a penalty allegation; and 3) here, the substantive DUI counts, having been dismissed only once before when they stood as misdemeanors, could be re-filed as felonies, in the company of the prior DUI conviction allegation, without violating the two-dismissal rule.

Appellate Information

  • Decided 10/30/2013
  • Published 10/30/2013

Judges

  • DUARTE

Court

  • California Court of Appeal

Counsel