AB 3234: New Law Allows Diversion for Most Misdemeanors; Expands Elderly Parole Eligibility

AB 3234,  taking effect on January 1, 2021, allows for diversion in almost all misdemeanor cases, including DUI, vehicular manslaughter, elder abuse, child abuse, assault, hate crimes, carrying a concealed firearm, possession of a firearm in a school zone, criminal threats, and dissuading a witness.  Upon completion of diversion, as defined by the judge, the case shall be dismissed and the crime deemed to never have occurred.

Diversion and dismissal of the case under AB 3234

Under AB 3234, a judge in the superior court in which a misdemeanor is being prosecuted can offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney, except as specified. A judge can continue a diverted case for a period not to exceed 24 months and order the defendant to comply with the terms, conditions, and programs the judge deems appropriate based on the defendant’s specific situation. At the end of the diversion period, if the defendant complies with all required terms, conditions, and programs, the judge is required to  dismiss the case  against the defendant. The arrest upon which diversion was imposed  will be deemed to have never occurred.  The court may end the diversion and order resumption of the criminal proceedings if the court finds that the defendant is not complying with the terms and conditions of diversion.

Cases not eligible for diversion

(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.

Defendants who fulfill these conditions will have their case dismissed:

(a) Complete all conditions ordered by the court.

(b) Make full restitution. However, a defendant’s inability to pay restitution due to indigence shall not be grounds for denial of diversion or a finding that the defendant has failed to comply with the terms of diversion.

(c) Comply with a court-ordered protective order, stay-away order, or order prohibiting firearm possession, if applicable.

After Diversion arrest deemed never to have occurred

After completion of the diversion, the arrest upon which diversion was imposed shall be deemed to have never occurred. The defendant may indicate in response to any question concerning their prior criminal record that they were not arrested. A record pertaining to the arrest shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

The arrest may disclosed by the Department of Justice in response to a peace officer application request and must be disclosed in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.

Prosecutors and Mothers Against Drunk Driving Oppose Diversion

Prosecutors opposed the law arguing it prevents law enforcement from having a accurate account of criminal history. The law could also result in the loss of millions of dollars of federal funding that helps prosecutors and police  investigate and prosecute impaired driving across California.

“Diversion will now almost certainly be sought in every eligible misdemeanor case. Failure by a defense attorney to request it would likely be considered ineffective assistance of counsel,” said CDAA President and El Dorado County District Attorney Vern Pierson.

“Rather than being held accountable and treated appropriately, repeat DUI offenders would have a legal pathway to avoid the responsibility of their dangerous conduct,” he added. “Due to anti-recidivism statutes enacted in the 1980s and 1990s, DUI deaths have decreased by 52 percent, nonetheless, there were over 1,000 DUI deaths in 2018 alone.  The failure to add DUI cases to the list of crimes excluded from diversion is gravely troubling and should alone compel a veto.”

Mothers Against Drunk Driving (MADD) opposed  AB 3234 because it applies to DUI offenses.  AB 3234 places no limitations on the eligibility of repeat DUI offenders for diversion, allowing them to be eligible for diversion over and over again without being identified as a high risk chronically impaired driver.

Possibility of Repeat Diversion for DUI’s

There is a possibility that a  DUI offender could be granted diversion in one county for a period of six months, successfully complete that diversion, then be arrested in another county for DUI and be granted diversion yet again, and follow this pattern repeatedly, avoiding ever being actually identified as a high-risk, chronic, impaired driver.

The period of diversion prior to dismissal is limited to a maximum of 24 months. There is no minimum diversion period  and there is no limitation placed on the number of times that diversion may be granted to a particular defendant.

Impact on Federal Funding for Highways

California receives substantial federal highway safety and construction funding through the application of the FAST (Fixing America’s Surface Transportation) Act, the legislation that controls the allocation of federal highway funds through the Federal Highway Administration.

FAST requires specific statutory and procedural benchmarks for dealing with repeat DUI offenders, called “Compliance Criteria,” which include mandatory minimum sentences and driver’s license restrictions or suspensions, among others. (See 23 CFR 1275.4(a).) These criteria were included in FAST to ensure that states take measures to address  impaired driving.

MADD claims that AB 3234 would run afoul of the Compliance Criteria, potentially cutting off millions of dollars in Federal highway funding necessary to maintain and expand roadway infrastructure. 

The law provides the state with a means to reduce jail population during the COVID pandemic and provide  second chances to Californians. AB 3234 authored by Assembly member Phil Ting (D-San Francisco), gives  judges the discretion to place first-time misdemeanor offenders in a diversion program. It also makes changes to the elderly parole program.

“In these times of reflection when the fairness of our criminal justice system is front and center, we can start by offering more compassion and understanding. A second chance is sometimes all someone needs to turn their life around, and when it’s an option, we often get better rehabilitative and reintegration results,” said Ting.

Ting’s legislation also aims to reduce prison overcrowding by making changes to the Elderly Parole Program. Medical costs for Incarceration of  the elderly costs California up to $300,000 per year for each prisoner. Currently, inmates are eligible for an Elderly Parole Hearing if they are at least 60 years old and have served a minimum of 25 years. AB 3234  lowers the age for elderly parole considerations to 50 and reduces the minimum years served to 20.

Existing law establishes the Elderly Parole Program for the purpose of reviewing the parole suitability of inmates who are 60 years of age or older and who have served a minimum of 25 years of continuous incarceration on their sentence.

This bill would modify the minimum age limitation for that program to 50 years of age and instead require the inmate to have served a minimum of 20 years of continuous incarceration in order to be eligible for that program.

The law amends Section 3055 of the Penal Code.

  1. (a) The Elderly Parole Program is hereby established, to be administered by the Board of Parole Hearings, for purposes of reviewing the parole suitability of any inmate who is 50 years of age or older and has served a minimum of 20 years of continuous incarceration on the inmate’s current sentence, serving either a determinate or indeterminate sentence.

(b) (1) For purposes of this code, the term “elderly parole eligible date” means the date on which an inmate who qualifies as an elderly offender is eligible for release from prison.

(2) For purposes of this section, “incarceration” means detention in a city or county jail, local juvenile facility, a mental health facility, a Division of Juvenile Justice facility, or a Department of Corrections and Rehabilitation facility.

(c) When considering the release of an inmate specified by subdivision (a) pursuant to Section 3041, the board shall give special consideration to whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate’s risk for future violence.

(d) When scheduling a parole suitability hearing date pursuant to subdivision (b) of Section 3041.5 or when considering a request for an advance hearing pursuant to subdivision (d) of Section 3041.5, the board shall consider whether the inmate meets or will meet the criteria specified in subdivision (a).

(e) An individual who is subject to this section shall meet with the board pursuant to subdivision (a) of Section 3041. If an inmate is found suitable for parole under the Elderly Parole Program, the board shall release the individual on parole as provided in Section 3041.

(f) If parole is not granted, the board shall set the time for a subsequent elderly parole hearing in accordance with paragraph (3) of subdivision (b) of Section 3041.5. No subsequent elderly parole hearing shall be necessary if the offender is released pursuant to other statutory provisions prior to the date of the subsequent hearing.

(g) This section does not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or in cases which an individual was sentenced to life in prison without the possibility of parole or death.

(h) This section does not apply if the person was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of their duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of their duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of their official duties.

(i) This section does not alter the rights of victims at parole hearings.

(j) By December 31, 2022, the board shall complete all elderly parole hearings for individuals who were sentenced to determinate or indeterminate terms and who, on the effective date of the bill that added this subdivision, are or will be entitled to have their parole suitability considered at an elderly parole hearing before January 1, 2023.


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