VC 21651 Laws (Abbrev.)
Whenever a highway has been divided into two or more roadways by means of intermittent barriers or by means of a dividing section of not less than two feet in width, either unpaved or delineated by curbs, double-parallel lines, or other markings on the roadway, it is unlawful to do either of the following:
To drive any vehicle over, upon, or across the dividing section (VC21651(a)(1)-M).
To make any left, semicircular, or U-turn with the vehicle on the divided highway, except through an opening in the barrier designated and intended by public authorities for the use of vehicles or through a plainly marked opening in the dividing section (VC21651(a)(2)-M).
It is unlawful to drive any vehicle upon a highway, except to the right of an intermittent barrier or a dividing section which separates two or more opposing lanes of traffic (VC21651(b) Abbrev.).
Any willful violation of VC21651(b), which results in injury or death of a person is classified as either a felony, or as a misdemeanor (VC21651(c) Abbrev.).
A “motor vehicle” for purposes of Vehicle Code 21651 includes: a motorized passenger vehicle (truck, car, RV, sand rail, etc.), a motorcycle or motorized bicycle, a scooter, a golf cart, a tractor (or other motorized farm equipment), and any of the above regardless of mechanized power source (i.e., natural gas, electric, etc.).
Examples: Make a left turn over a double yellow line or a double white line is violation of VC 21651(a); pass another driver by crossing a double yellow line or a double white line, even momentarily, is a violation of VC 21651(a); straddle or ride a double-parallel line (even momentarily), is a violation of VC 21651(a); and making a U-turn over a double yellow line or double white line is a violation of a VC21651(a).
Note: To prove that the defendant is guilty of VC 21651(a) or VC21651(b), the district attorney is not required to prove that the defendant willfully drove on the wrong side of a separated highway. However, if the district attorney charges the defendant with a violation of VC21651(c), then the district attorney will need to prove that the defendant’s driving on the wrong side of the road (highway) was willful.
VC 21651 Penalties
VC 21651(a) is classified as an infraction crime and VC 21651(b) is classified as a misdemeanor crime. An infraction is the least severe type of crime classification. A misdemeanor is a classification of crime that is less severe than a felony, but more severe than an infraction. VC 21651(c) is classified as either a misdemeanor, or alternatively as a felony. This means that VC 21651(c) is considered a “wobbler” offense because the classification of crime “wobbles” between two different crime classifications (misdemeanor and felony). For more information, see Wobbler Crimes.
VC 21651(a) Jail Sentence: There is no jail sentence associated with VC21651 as this crime is classified as an infraction. Nevertheless, the fines and DMV points listed below still apply to VC 21651(a) offense.
VC 21651(b) Jail Sentence: As stated, a violation of VC 21651(b) is classified as a misdemeanor. Upon conviction for driving on the wrong side of the road charged under this code section a defendant could face up to 180 days in jail. A probation sentence without jail may be possible in some cases (see Probation Sentence below).
VC 21651(c) Jail Sentence: Willfully driving on the wrong side of road, which leads to injury or death, is a violation of VC 21651(c). This crime may be charged either as a misdemeanor, or alternatively as a felony. When VC 21651(c) is charged as a misdemeanor, the defendant may face up to 180 days in jail. When VC 21651(c) is charged as a felony, the defendant may face up to 3 years of incarceration in a local county jail. A probation sentence without jail might be possible in any VC 21651 case, regardless of whether the crime is charged as a misdemeanor or as a felony (See Probation Sentence below).
Note: Whether the district attorney charges a misdemeanor or a felony in any VC 21651(c) case depends largely on the extent of injury to the victim; the defendant’s criminal history; the egregiousness of the defendant’s willful conduct, and more.
Probation Sentence: A probation sentence is a period of supervision instead of incarceration. A probation sentence is available in any VC 21651 case, including where the defendant willfully drove on the wrong side of the road and caused injury or death to the victim. However, a probation sentence is not guaranteed.
Note: Whether the defendant receives a probation sentence after a conviction for driving on the wrong side of the highway depends mostly on the defendant’s criminal history, the circumstances and facts of the criminal allegations, the amenability of the defendant serving a probation sentence (no prior failures to appear, etc.), the terms of a plea bargain between the district attorney the defendant, if any, and more.
Also, a probation sentence in a VC 21651 case will include “terms of probation,” which must be obeyed to remain on probation. If the defendant does not follow the terms of her probation, then the district attorney may file a violation of probation (VOP) allegation against the defendant. A VOP can lead to actual jail time and other severe consequences. For more information, see VOP.
Felony v. Misdemeanor Probation: If the defendant is placed on probation after a conviction for driving on the wrong side of the road, then the probation sentence will either be “summary” or “formal.” Summary probation is monitored by the court and the terms of probation are usually less harsh than felony probation terms (i.e., pay fines, violate no law, do not drive without a valid license or insurance, etc.).
Felony probation is supervised by a felony probation officer and the terms of formal probation are usually much harsher than those terms associated with misdemeanor probation (i.e., pay restitution, commit no crime, longer period of probation, submit to search by probation officer, etc.).
Note: A probation sentence for a misdemeanor violation of VC 21651 is generally “summary” or “informal” probation, which is monitored by the court; however, a “formal” probation sentence may be ordered, even in a misdemeanor case, where the court finds that formal probation is better suited to meet the needs of justice. On the other hand, a probation sentence after a conviction for felony VC 21651 is always “formal” probation.
Finally, most probation sentences include some punishment semi-equivalent to incarceration, such as community service, work release, house arrest, etc. In some cases, the defendant may even be ordered to serve an actual jail sentence as a term of probation. However, when an actual jail sentence is ordered as a term of probation, the probation sentence is usually much shorter than what the defendant might otherwise have face if a probation sentence was not ordered, and the defendant was sent to jail without probation.
Split & Suspended Sentence: A defendant convicted of a felony violation of VC 21651(c) might have any jail sentence either split (served partially in jail and partially out of jail on work release) or suspended (not served unless the defendant violates a condition of her out-of-jail probation sentence). For more information, see PC 1170(h) Sentencing.
Strike Offense: VC 21651 crimes are not considered “strike” offense under California law. Accordingly, a VC 21651 crime is neither classified as either a serious offense, nor a violent offense as those terms are defined in California law at PC 1192.7(c), and PC 667.5(c), respectively.
Crime Involving Moral Turpitude: VC 21651 crimes are not considered crimes involving moral turpitude (CIMT). A crime involving moral turpitude is a crime considered to be the product of deceit, dishonesty, or fraud, or otherwise involves immoral behavior.
Note: Despite the fact VC 21651 crimes are not CIMT, a defendant should be aware than any criminal conviction, even a VC 21651 conviction, can lead to adverse consequences with immigration status, military service status, and professional licensing, especially felony convictions.
DMW Points: A violation of VC 21651(a) can lead to one point on the defendant’s driving record with the Department of Motor Vehicles (DMV). A violation of VC21651(b) and VC 21651(c) can lead to two points on the defendant’s DMV record.
Bail: Bail is the process of staking money or property with the court, usually through a bail bond company to assure the defendant’s presence in court as ordered. If the defendant fails to appear at court as ordered, then the defendant’s bail will be forfeited. If the defendant pays the ordered bail amount and does not violate any conditions of bail, then the criminal court judge will allow the defendant to be released from jail pending the criminal proceedings.
Note: The “bail schedule” for driving on the wrong side of the highway in San Bernardino County is as follows: Infraction cases (does not usually apply unless the defendant fails to appear at court as ordered in her citation); misdemeanor cases ($5,000); felony cases ($25,000). These amounts may be increased or decreased based on the circumstances of the case and the defendant’s ability to pay bail. In some cases, even in felony cases, the defendant might be released on her own recognizance and without the need to pay bail (OR Release).
Other Penalties: In addition to a possible jail sentence or probation sentence above, if the defendant is convicted of driving on the wrong side of the highway, she may also suffer any of the following penalties: civil lawsuit (for injuries of death), restitution (restore the victim’s economic loss, if any), firearm prohibition (felony VC21651(c)-F cases), loss of insurance or insurance rate hike, loss of the right to adopt a child or become a guardian in a family law case, military consequences, immigration consequences, professional licensing consequences, parole (felony cases), and more.
Note: The defendant may be charged with VC 21651 crimes even if other crimes are also charged against the defendant from the same incident. For example, the defendant may be charged with willfully driving on the wrong side of a highway causing death (VC21651(c)-F and manslaughter (PC 192). Similarly, a defendant may be charged with a VC 21651 allegation along with a DUI, Driving While License is Suspended, Reckless Evading Police, Driving Without a License, Reckless Driving, Engaging in a Speed Contest, and more.
VC 21651 Defenses
The most common defenses associated with driving on the wrong side of the road crimes include:
Defendant was not driving;
Lanes were not clearly marked;
Defendant was engaged in an emergency;
Defendant did not actually cross a lane divider.
Defendant not timely prosecuted (See below).
In addition to the most common defenses listed above, other defenses to a violation VC 21651 allegations include: statute of limitation (1 year for misdemeanor cases and 3 years for felony cases), involuntary intoxication, duress, insufficient evidence, and more.
Serna Defense: A Serna Defense occurs where the district attorney timely files the VC 21651 allegations against the defendant, but the prosecution is unreasonably delayed and thereby caused prejudice to the defendant.
A Serna defense typically occurs where the defendant fails to appear for court, but the prosecutor nevertheless fails to bring the defendant to court (execute a warrant or collect on a warrant), or where the prosecutor waits an unreasonably long time to file charges against the defendant even though the filing itself is within the statute of limitations.
Note: If the defendant wins a Serna request than the criminal charges against the defendant are dismissed. For more information, see Serna Motion.
Emergency Defense: The defense of emergency exists where the defendant willfully committed a VC 21651 violation, but she only did so to avoid a greater harm (i.e., avoid hitting another vehicle or person, a passenger is dying or having a baby and needs to get to a hospital immediately, etc.). An emergency defense, if proven by the defense, is a complete defense to the crime.
Duress Defense: A duress defense in a VC 21651 case occurs where the defendant’s criminal conduct is the result of being forced by another person (i.e., kidnapping after a carjacking, evading police by force of a kidnapper, etc.).
Traffic School: Traffic school is available in VC 21651 cases, so long as the defendant is not charged with a felony, the defendant has not attended traffic school in the prior 18 months, the defendant was not driving a commercial or corporate vehicle, and the defendant was a licensed driver when she drove on the wrong side of the highway.
Note: Traffic school is not a true defense in the sense that the defendant does not have to suffer any penalty. However, traffic school is a great option for anyone looking to avoid greater penalties with the court, an insurance carrier, or a driving profession (i.e., commercial truck driver, etc.).
Defense to VC 21651(c): There is a defense that is specific to a violation of VC 21651(c). That defense is to show that the defendant’s conduct was not willful, or that the victim’s injury was not the proximate cause of the defendant’s criminal conduct. It is the burden of the district attorney prove every element of the charged offense. This includes proving that the defendant’s conduct was willful in a VC 21651(c) case. However, the reality is that without defense demonstrating the lack of willful conduct, the prosecution can generally rely on circumstantial evidence to prove this element.
Judicial Diversion: Judicial diversion is a criminal court process whereby the defendant’s prosecution is “diverted” if she complies with “diversion conditions” (i.e., pay fines, attend driving school, stay out of trouble, pay restitution, etc.). If the defendant complies and completes a “diversion program,” then her criminal case is dismissed.
A judicial diversion is not guaranteed, but like a probation sentence, the defendant may make a case to enter a diversion program through the court. This is true even if the district attorney otherwise objects to the defendant’s diversion request. For more information, see Judicial Diversion (PC 1001.95).
PC 17(b) Defense: A PC 17(b) defense only applies to a VC 21651(c) allegation. Essentially, a PC 17(b) “motion” is a request to the criminal court judge to reclassify the defendant’s felony charge to a misdemeanor charge. This is allowed because VC21651(c) is classified as a “wobbler” offense (see VC 21651 Penalties above).
Note: Whether the judge will grant a 17(b) motion depends on many factors, including the egregiousness of the defendant’s conduct when she drove on the wrong side of the highway, the harm cause to victim (if any), the terms of any plea bargain agreement, the defendant’s remorse (or lack thereof), the defendant’s criminal history, and more.
Post-Conviction Issues
After the defendant is convicted of driving on the wrong side of the road, she might have a variety of post-conviction options, including: appeal the criminal conviction, withdraw a guilty plea (or “no contest” plea), terminate a probation sentence early, expunge the criminal conviction, seek a certificate of rehabilitation (felony VC 21651(c) cases), and more.
Note: If the defendant was cited for driving on the wrong side of the road, but the defendant was never prosecuted, or the defendant was prosecuted but the defendant was found not guilty or her case was dismissed, then the defendant may file a motion to seal and destroy her criminal arrest record. See Seal & Destroy Arrest Records.
If you or a loved one is charged with driving on the wrong side of the road, or VC 21651, contact our vehicle crimes defense lawyers today. Our team of dedicated and experienced criminal defense lawyers have successfully handled hundreds of vehicle code crimes in the Inland Empire, including the cities of Redlands, San Bernardino, Colton, Victorville, Adelanto, Fontana, Chino, Yucaipa, Rancho Cucamonga, and more. Our attorneys are standing by to answer all of your questions.
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