Surgeon’s DUI case lingering in court
District attorney, presiding judge say reasons for five-year trial delay ‘extremely unusual’
Despite 27 court appearances in nearly five years, a prominent Stanford surgeon who pleaded not guilty to charges of drunken driving in 2016 has avoided going to trial — a delay that has baffled San Mateo County’s presiding judge and the district attorney.
Dr. David Mohler, who heads the Stanford Orthopedic musculoskeletal oncology department, was arrested at 2:12 a.m. on May 7, 2016, in San Mateo on suspicion of driving under the influence of alcohol after making an illegal U-turn. A breathalyzer test at the scene revealed he had a blood-alcohol level of 0.11, above the legal limit.
On Aug. 16, the San Mateo County District Attorney’s Office subsequently filed two charges — one for driving under the influence of alcohol and another for driving under the influence and testing above the legal blood-alcohol limit. A few months later, on Oct. 5, Mohler pleaded not guilty.
A jury trial was set for Jan. 23, 2017, but at the request of his attorney, Eric Hove of San Carlos, it was continued. The trial was set and rescheduled a dozen times over the years, according to court documents. The newest trial date is Sept. 17.
Attorneys and judges interviewed for this story said a misdemeanor DUI case similar to Mohler’s, in which the defendant pleads not guilty, is usually resolved in one to two years.
Though no one questions that five years is a long time for a DUI case to linger, they disagree about the validity of the reasons given, with one retired judge saying Mohler’s status as a prominent and wealthy surgeon raises questions about preferential treatment and a public defense attorney suggesting it’s just an outlier case with reasonable explanations for the continuances.
When asked about the length of the case during a brief interview Thursday, Hove did not comment.
According to court filings obtained by this news organization, the defense requested eight trial date continuances, prosecutors asked twice and the court rescheduled twice amid the coro
navirus pandemic. Meanwhile, the defendant was ordered to appear in court 15 other times for pre-trial motions.
Superior Court Presiding Judge Leland Davis called the prolonged DUI case “extremely unusual,” adding it’s “difficult to answer” why more than a dozen judges who have presided over the case would allow it to continue so long.
Davis said the two “legitimate” reasons for postponing the trial were pandemic-related — the courtroom was shut down during one scheduled trial and Davis himself continued another in February after Hove came down with COVID-19.
As he sifted through a partial set of notes on the case, Davis said the defense’s reasons for seeking continuances ranged from needing more time to conduct an additional investigation of the incident to having to retain a new expert while prosecutors twice sought delays because the arresting officer wasn’t available. No reasons were cited for some of the continuances, he added.
Also delaying the case besides the continuance requests were two other defense motions — one to suppress evidence and the other to seek a pre-trial misdemeanor diversion that could have resulted in dismissal of the DUI charges. Both motions were denied.
“I’m not making excuses for it. I’m not saying it’s usual and I’m not saying it’s OK,” Davis said about all the delays. “There will come a point in time in any given case — particularly if it comes to me — when I’ll say, ‘OK, this case is old, it’s gone on long enough, give me a date certain so we can bring this case to a resolution.’ But that apparently didn’t happen here. It was like a perfect storm.”
The case so far has been touched by 14 judges and 23 deputy district attorneys. Only once did the prosecution object to a request to continue the case to a later date.
District Attorney Stephen Wagstaffe called the case’s length “unusual” and said he would speak with his deputies to “prevent this in the future.”
“This is very inefficient,” Wagstaffe said. “The desirable time on a simple case like this would get it resolved within a year, and that’s what we did have in a day gone by. We understand one or two continuances; our job is to listen. But sometimes we have to stand up and object. Here, it took a long time for us to object and that’s a problem.”
Wagstaffe said Hove is “well known” for delaying cases. “In this case, justice is being denied by being delayed,” he added.
For former Santa Clara County Superior Court Judge Ladoris Cordell, the unusual length of the case rises to “an abuse of the criminal justice system” by a “high profile” surgeon with the money to pay for a protracted legal defense. When she reviewed the case summary, Cordell said she was “outraged” at how Mohler’s case has been allowed to hang around, calling it a “double standard.”
She said anyone can request a continuance, but only a judge can grant it.
“This is totally and completely bizarre,” Cordell said. “A person of color in a similar situation would not be able to continue their case for this long. This was a Stanford surgeon who hired someone who is able to go to court and play the game. It’s total crap. What the hell is going on?”
Davis and Wagstaffe said they would never consider a person’s profession and prominence in in determining whether to continue a case.
“I don’t tolerate folks that are privileged and moneyed or consider themselves to be elite thinking they’ll be treated differently,” Davis said, adding he wasn’t aware who Mohler was when he presided over the case and was asked to continue it in February 2021.
Others said there’s no double standard and the case simply is what it is.
Scott Sherman, managing attorney for the San Mateo County Private Defender Program, said a fiveyear delay is “unusual, yes, but sometimes things happen.” Hove is a defense attorney for the program.
“Cases take what they take,” Sherman said. “In general, they don’t take that long. But if you only look at the outliers for cases that resolve quickly or slowly, we run into the danger of getting a false impression of the criminal justice system.”
“We need to use this case as an example that we make sure to do everything we can to voice our objections and not wait five years,” Wagstaffe said. “What I’m going to do is tell the supervisor to tell her deputy on the case that the DA’s watching how this one goes. It is in the interest of the people that cases move forward to a speedy trial. Don’t just sit and take notes.”
But in the end, he said, “It falls back on the judge. The judges control their calendars.”