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Judicial Diversion for Misdemeanor DUI- depends on the county

People v. Sup. Ct. (Espeso); BS 175803; 7/14/21; Los Angeles Superior Court App. Div. ruled no diversion for DUI

People v. Sup. Ct. (Diaz‑Armstrong); APR12100008; 7/27/21; Riverside Sup. Ct. App. Div.-ruled diversion available for DUI

There is a split on this question. The Riverside Superior Court appellate division says that 23640 does not bar diversion for a misdemeanor DUI.  

Are DUIs  categorically ineligible for section 1001.95 misdemeanor diversion because of section 23640?
Section 1001.95, which took effect January 1, 2021, provides that “[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 ….” (§ 1001.95, subd. (a), added by Stats. 2020, ch. 334, § 1.) [I]f 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”; however, “[i]f 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.” (§ 1001.95, subds. (c), (d); cf., e.g., Pen. Code, § 1000 et seq.)

Section 1001.95 applies to all misdemeanors except for these express exclusions: violations of Penal Code sections 273.5, 243, subdivision (e), 676.9, and any offense carrying mandatory sex offender registration. (§ 1001.95, subd. (e).) Misdemeanor DUIs are plainly not included in this list of ineligible offenses.

But, Section 23640, a preexisting statute dating back almost 40 years (see former Veh. Code, § 23202, added by Stats. 1981, ch. 940, § 32), provides in relevant part that,

[i]n any case in which a person is charged with a violation of [Vehicle Code] 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.

By it’s plain language, the  court may not grant pretrial diversion to a misdemeanor or felony DUI defendant. This is “[t]he unambiguous intent of” the section. (People v. Darnell (1990) 224 Cal.App.3d 806, 810, 274 Cal.Rptr. 110.)

Section 1001.95 Misdemeanor Diversion and DUIs

Issue: When the Legislature authorized trial courts to grant diversion in a misdemeanor case so long as the charge wasn’t one of the expressly listed exclusions, did they mean to give courts the power to grant diversion in DUI cases — a non-excluded offense — notwithstanding the existence of section 23640? The Court concluded that when the Legislature enacted section 1001.95 it intended for it to include misdemeanor DUIs.

“ ‘ “[T]he statutory language … generally is the most reliable indicator of legislative intent.” ’ ” (Gutierrez, supra, 58 Cal.4th at p. 1369, 171 Cal.Rptr.3d 421, 324 P.3d 245.) By its plain language section 1001.95 applies broadly to “a misdemeanor … being prosecuted” with only a few clearly identified exceptions.

The omission of misdemeanor DUIs in the final list of exclusions and corresponding analysis is telling evidence of the Legislature’s intent to include them as eligible.

The Legislature enacted section 1001.95 in order to shift persons charged with misdemeanors away from traditional punishment for better long-term outcomes.  Section 1001.95 grants the Superior Court this significant discretion.  The Legislature that enacted that statute  did not intend to excluse misdemeanor DUIs as unamenable to the rehabilitative goals  of pretrial diversion.  Section 23640 still operates to exclude felony DUIs from, for example, mental health diversion. (Moore, supra, 58 Cal.App.5th 561, 272 Cal.Rptr.3d 571; Tellez, supra, 56 Cal.App.5th 439, 270 Cal.Rptr.3d 418.) It  furthers the enacted polices of section 1001.95 to hold — consistent with principles of statutory construction and the other legislative history — that the Legislature intended for defendants charged with misdemeanor DUI to be eligible for section 1001.95 diversion as an exception to the prohibition embedded in section 23640. If this was not the Legislature’s intent they could and should have clearly said so.

Note:  The Law Offices of David K. Uthman has represented numerous clients charged with misdemeanor DUI on diversion applications in San Francisco, Alameda and Santa Clara counties.The skilled San Francisco DMV professionals at Uthman Law Office have been providing reliable service to our driver’s license suspension, DUI defense, and other clients for many years. Attorney David Uthman has over 20 years of experience as a litigation attorney and almost a decade of experience as a police officer. Put our experience to work for you in your DMV case. Call us today at (415) 556-9200 to schedule your FREE initial consultation to get the help you need.

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