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DUI & Misdemeanor Diversion in California

In California, DUIs may now receive Misdemeanor Diversion under AB 3234 and Penal Code §1001.95

Just this year, there was a big change in California law.

Generally speaking, prior to 2021, a judge could only dismiss a misdemeanor DUI case …

  • With the prosecutor’s consent; or
  • If the police or prosecutor violated certain laws; or
  • Pursuant to Military, Mental Health, or Drug Diversion.

A “Diversion” being offered means being given an opportunity from the judge to earn a dismissal of your case by completing certain things, or abstaining from certain things, or both, for a specified period of time. Diversion offered and completed in a DUI case allows a defendant to avoid jail, conviction, probation, and also the two driving record points associated with a DUI.

As their names imply however: Military Diversion is only available to active or discharged military personnel; Mental Health Diversion is only available to people with a recognized mental health problem, and Drug Diversion is only available to people with a drug addiction problem. Thus, for years, this has left most DUI defendants without the ability to be placed on any type of Diversion.

But now, in 2021, under AB 3234, which resulted in Penal Code § 1001.95, there is a non-specific, general, Misdemeanor Diversion. If a person is offered such Diversion by the court, and successfully completes it, the charges are dismissed, and the defendant becomes eligible to have their arrest record sealed. If the defendant fails said Diversion, the Diversion offer is rescinded, and the Defendant again must either admit, or fight, his or her case. Pretrial Diversion is sometimes also called a “Deferred Entry of Judgment.”

Penal Code § 1001.95 (amended by AB 3234) states:

“(a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.

(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.

(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.

(d) If it appears to the court that the defendant is not complying with the terms and conditions of diversion, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.

(e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:

(1) Any offense for which a person, if convicted, would be required to register pursuant to Section 290.

(2) A violation of Section 273.5.

(3) A violation of subdivision (e) of Section 243.

(4) A violation of Section 646.9.”

Courts Currently Split Regarding DUIs Eligible under AB 3234

There is an incorrect opinion floating about in some courts that DUIs are not eligible for this new Diversion. (See People v. Superior Court (Espeso) (2021) 6.Cal.App.5th Supp. 1, https://scholar.google.com/scholar_case?case=16472572866906588118&q=espeso&hl=en&as_sdt=2006). Historically, there has always been much resistance to any new laws, or interpretation of law, that favors DUI defendants.

However, in People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal.App.5th Supp 10, the court ruled that in enacting AB 3234, the authors of the law intentionally and deliberately shortened the list of disqualifying misdemeanor offenses that were ineligible, and chose not to include DUIs in that list. The court in People v. Superior Court (Diaz-Armstrong) went on to hold unequivocally that DUIs are eligible for Diversion under AB 3234. (https://scholar.google.com/scholar_case?case=7950051992450336160&q=diaz-armstrong&hl=en&as_sdt=2006)

Do DUI Offenders Automatically Qualify for Misdemeanor Diversion?

Not everyone who is eligible for Diversion is offered it. It’s not as simple as knowing you are eligible and requesting it. The judge has the discretion to grant Diversion, which means they have the discretion to deny it.

The denial of a Diversion request is reviewed under the abuse of discretion standard. (Wade v. Superior Court (2019) 33 Cal.App.5th 694, 708.). In the context of determining pretrial Diversion eligibility and suitability:

“Judicial discretion must be ‘guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citation.]’ This understanding is essential to assess the scope of judicial discretion conferred by statute. It means that ‘all discretionary authority is contextual . . . [Citation.]’ A reviewing court ‘cannot determine whether a trial court has acted irrationally or arbitrarily . . . without considering the legal principles and policies that should have guided the court’s actions. [Citation.]’”

You need a good attorney to gather together all your best arguments in your case to persuade the judge to offer you Diversion in your case.

If you are facing a DUI charge, call the Law Office of Ivan O.B. Morse at (888) 865-0741 or fill out our online contact form today and arrange for a free consultation of your case with one of our attorneys, Ivan O.B. Morse or Ryan L. Smith.