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Does Mental Health Diversion Apply to a DUI (23152 CVC)?

Does Mental Health Diversion Apply to a DUI (23152 CVC)?

In June of 2018, the California legislature passed a law allowing for Mental Health diversion of misdemeanor and felony cases which became effective January 1, 2019.  Diversion is a legal concept where someone charged with a criminal offense is “diverted” or sent outside the criminal justice system to address their problems, and if they comply with the court orders for a period of time (at least one and not more than two years) the matter will be dismissed.  Mental Health Diversion is available pre-plea only, and cannot be applied retroactively to cases already finalized.

For more general aspects of Mental health Diversion, please see this page:

The diversion statute specifically lists mental conditions that are eligible:

  • The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder,

And particularly excludes certain diagnoses:

 but excluding antisocial personality disorder, borderline personality disorder, and pedophilia.

Evidence of the defendant's mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant's medical records, arrest reports, or any other relevant evidence.

The statute also specifically prohibits the application of law to certain violations:

(2) A defendant may not be placed into a diversion program, pursuant to this section, for the following current charged offenses:

(A) Murder or voluntary manslaughter.

(B) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.

(C) Rape.

(D) Lewd or lascivious act on a child under 14 years of age.

(E) Assault with intent to commit rape, sodomy, or oral copulation, in violation of Section 220.

(F) Commission of rape or sexual penetration in concert with another person, in violation of Section 264.1.

(G) Continuous sexual abuse of a child, in violation of Section 288.5.

(H) A violation of subdivision (b) or (c) of Section 11418.

 **So if you noticed, DUI (23152 CVC) is not a prohibited charge for Mental Health Diversion. 

Why would the court deny a qualifying defendant suffering from a condition?

There is a case (People v. Weatherhill (1989) 215 Cal.App.3d 1569) that states “all driving under the influence defendants without exception, shall have their guilt or innocence determined without delay or diversion”.    The legislature then created statutes specifically prohibiting diversion: 23202, 23206 and now 23640 CVC:

“. . .[In DUI cases]. . .  the court shall not suspend or stay the proceedings for the purpose of. . . attending education, training or treatment programs”. 

Many courts interpret this as an explicit prohibition against diversion treatment on DUI cases. However, in a similar context, Military diversion ( under 1001.80 PC was similarly opposed by prosecutors, yet now is available to all military active duty and veterans.

Aggressive representation with creative arguments can achieve good things, and may prevent a DUI conviction, even in cases where there is no defense.  Call today for a free consultation 760 643 4025.

UPDATE: Unfortunately, most courts are now citing Vehicle Code Section 23640 and the Tellez case (Tellez v. Superior Court (2020) 56 Cal.App.5th 439) for the proposition that Mental Health Diversion does NOT apply to DUI charges.  Although DUI charges are not specifically excluded under the mental health diversion statute (1001.26 PC), the courts have found that 23640 CVC controls to prevent the application of the diversion statute.


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