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Misdemeanor Diversion and DUI Offenses

Posted by Joel Bailey | Apr 30, 2021 | 0 Comments

Assembly Bill 3234, effective January 1, 2021, created a statutory basis for Misdemeanor Judicial Diversion.  The bill, codified in Section 1001.95 of the Penal Code, essentially empowers any judge to grant diversion of a misdemeanor, without a guilty plea, and without agreement by the prosecuting agency.  This is potentially a really big change to criminal law in California.

What is Misdemeanor Diversion in California?

The statute is fairly simple and direct:

§ 1001.95. Misdemeanor diversion; Reinstitution of proceedings for noncompliance

(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.

Cal Pen Code § 1001.95

Can You get Diversion for Any Misdemeanor?

Well, clearly in the language above, there are particular offenses specifically excluded from Diversion.  Under 1001.95(e) PC, 273.5 (Domestic Violence/Corporeal injury to spouse),  243(e) (Battery on a spouse or girlfriend, and 646.9 PC (Stalking) are charges that cannot be diverted under this section.  So that means any other, non-excluded misdemeanor can be diverted, right?

Not Exactly.

Can I get Diversion for a Misdemeanor DUI in California?

California has a statute that has been on the books for decades, originally sponsored by MADD, that prevents grants of diversion in DUI cases:

a) In any case in which a person is charged with a violation of Section 23152 or 23153, prior to acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs, including, but not limited to, a driver improvement program, a treatment program for persons who are habitual users of alcohol or other alcoholism program, a program designed to offer alcohol services to problem drinkers, an alcohol or drug education program, or a treatment program for persons who are habitual users of drugs or other drug-related program.
(b) This section shall not apply to any attendance or participation in any education, training, or treatment programs after conviction and sentencing, including attendance or participation in any of those programs as a condition of probation granted after conviction when permitted.

Cal Veh Code § 23640

But that law was passed in 1998, so it doesn't apply now, right?

Courts throughout California are Divided on the application of Diversion to DUI Cases

As of the date of drafting this blog (April 30, 2021) California Courts are divided on whether 23640 CVC prohibits grants of diversion under 1001.95.  In San Diego County, no judge (to my knowledge) has granted diversion in a DUI Case.  I believe this is completely wrong.  The legislative history of this bill shows California Congress explicitly considered the applicability to diversion, and did not exclude (it like the domestic violence exclusions.)  Several trial courts in Los Angeles and Riverside Counties, as well as Northern California, have recently ruled diversion under 1001.95 applies to DUI's.  To date, no appellate court has ruled on this issue.

Should I apply for Diversion in my Misdemeanor case?

Yes, if you want to be considered for diversionary treatment, the only way is to request it.  Even though San Diego Courts are currently denying Diversion for DUI cases, making the request both puts pressure on the judiciary to consider the proper application of the law and may preserve your rights in the future, once a ruling is made on the applicability to DUI's.  

Call today if you'd like to discuss how I can help.

Bailey Criminal Defense (760) 643 4025

About the Author

Joel Bailey

ATTORNEY BIO & EXPERIENCE Attorney Joel W. Bailey was born and raised in San Diego, California. He graduated from La Jolla High School, and earned degrees in Psychology, Sociology and Political Science from UC Santa Barbara, as well as completing a semester at the Universidad de Madrid in Spain....


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