Modified operations in San Mateo County courts have allowed for major crimes to be prosecuted, but misdemeanors, including drunken driving, won’t be heard until the fall at the earliest.

The scheduled delay — resulting from a series of orders by the San Mateo County’s presiding judge last year — is creating concern for the District Attorney’s office, which is worried about the backlog.

“I’m concerned the longer we wait, it’s going to take years to get out of this,” said San Mateo County District Attorney Stephen Wagstaffe.

Wagstaffe also worries that the delays are inadvertently preventing some defendants, such as those with addiction or mental health problems, from getting access to services they ordinarily would get through the courts. Instead, he is concerned some may be committing multiple offenses the longer they go without help.

In the case of drunken driving, Wagstaffe said the courts are designed to deter any repeat offenses. The first DUI offense mandates defendants go through a series of lectures. After the second offense, people can serve jail time. The third offense calls for residential treatment.

Though a formal request has not been made, Wagstaffe said he and his staff have discussed the matter with the presiding judge. He’s hoping out-of-custody misdemeanors might be heard in court as early as the spring, but that depends on how well the county is doing in terms of COVID-19 case rates and other public health metrics, Wagstaffe said.

He plans to raise the issue again in February. By then he said he hopes the county is out of the “purple tier,” the strictest category in the state’s pandemic reopening scheme.

No arraignments for out-of-custody misdemeanors have been heard since March 2020. However, the courts have largely continued with arraignments for felonies without much disruption. There have been some delays for jury trials.

Wagstaffe said, should the courts approve his idea, his staff will be able to prosecute the county’s misdemeanors, which on average make up 90 percent of his office’s cases. The district attorney’s office files around 15,000 misdemeanors every year.

There are some signs to allay his fear for public safety because of unprosecuted DUI cases: drunken driving cases are down about 30 percent.

In 2018, the DA’s office prosecuted 2,300 drunken driving cases. In 2019, it was 2,410. In 2020, there were 1,167 reports of drunken driving.

“On the other side of it, unfortunately, and maybe fairly intuitive, our domestic violence (cases) went up fairly significantly — about 25 percent,” Wagstaffe said.

There have been exceptions. Wagstaffe said his prosecutors can ask the presiding judge to advance any case that appears to be egregious and requires immediate attention.

One example involved a woman in Menlo Park who had allegedly violated several restraining orders and harassed her neighbors. Across 10 reported incidents, she had accumulated 22 misdemeanor charges.

“We have her in court now. It was going to be heard late next spring, in April, but we went, ‘This is not going well.’”

Wagstaffe hopes that by advancing the case, the woman can get connected to mental health treatment.

Seeking out these multiple-offense cases hasn’t been a priority in recent months. But Wagstaffe said he expects he will instruct his staff soon to double down on those cases this year.

“If we see misdemeanors where safety in the community is at risk, we just can’t wait eight to 12 months.”

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