Diversion is not available for Misdemeanor Drunk Driving

LONGEN TAN, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. (Cal. Ct. App., Mar. 10, 2022, No. A163715) 2022 WL 714708, at *1

 Summary: Tan was charged with misdemeanor driving under the influence. Effective January 1, 2021, the Legislature enacted a new law, Penal Code section 1001.95, making defendants charged with misdemeanors generally eligible for diversion at the discretion of the trial judge. The law expressly exempts several offenses from eligibility for diversion. It does not exclude driving under the influence.  But Vehicle Code section 23640 provides that driving under the influence (DUI) is ineligible for diversion.

Tan filed a petition for misdemeanor diversion under section 1001.95, arguing that section 1001.95 superseded Vehicle Code section 23640. Tan’s petition was denied in the  trial court and he filed a petition for writ of mandate in the court of appeal, asking it to direct the trial court to vacate its order denying his petition. At the time he filed his petition, no Court of Appeal had decided the issue presented and there was a split of authority between two published superior court appellate division opinions as to the availability of diversion in cases of misdemeanor DUI. After briefing, Division Three of the Fourth Appellate District issued its opinion in Grassi v. Superior Court (2021) 73 Cal.App.5th 283 (Grassi), concluding that section 1001.95 and Vehicle Code section 23640 can be harmonized, and that misdemeanor diversion is unavailable to defendants charged with DUI. The court of appeal found it  difficult and close question.The court held that the two statutes can be reconciled and that misdemeanor convictions for DUI are not eligible for statutory diversion. The court denied the petition

Eligibility of Misdemeanor DUI for Diversion is Issue of Statutory interpretation

In any case involving statutory interpretation the court must determine the Legislature’s intent so as to effectuate the law’s purpose beginning by examining the statute’s words and giving them a plain and commonsense meaning. If the language of the statute is clear and unambiguous, there is no need for judicial construction. If the language is reasonably susceptible of more than one meaning, the court  may examine the purpose of the statute, the legislative history, the canons of statutory construction, and public policy. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838 (Even Zohar); People v. Arias (2008) 45 Cal.4th 169, 177.)

Statutory Language

Section 1001.95 provides: “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.” (§ 1001.95, subd. (a).) Subdivision (e) provides that “A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses,” and includes any offense for which a person, if convicted, would have to register under section 290 (sex offender registration); violation of section 273.5 (inflicting corporal injury on domestic violence victim); violation of section 243, subdivision (e) (battery on a domestic violence victim); and violation of section 646.9 (stalking). (§ 1001.95, subd. (e).) Under the plain words of the statute, judges have discretion to offer diversion for misdemeanor offenses over the objection of a prosecuting attorney unless the offense is one of the specifically excluded categories listed in subdivision (e).

Vehicle Code section 23640, subdivision (a) provides: “In 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 ….” As our courts have concluded, diversion is categorically unavailable to DUI defendants. (Grassi, supra, 73 Cal.App.5th at p. 291; Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 443 (Tellez).)

Harmonization of statutes

Vehicle Code section 23640 clearly prohibits diversion for DUI. (Veh. Code, § 23640, subd. (a) [court “shall neither suspend nor stay the proceedings” for diversion “[i]n any case in which a person is charged with a violation of Section 23152 or 23153”] In the absence of a similarly clear expression of legislative intent to partially repeal or override that law, the court defers to the “crystal clear” command in section 23640 that diversion is not available to DUI defendants. (Espeso, supra, 67 Cal.App.5th at p. Supp. 9.)

The failure to expressly exclude DUIs in section 1001.95 does not demonstrate an unambiguous intent to make misdemeanor diversion available to DUI defendants.


Section 1001.95 and Vehicle Code section 23640 can be harmonized and read together so that section 1001.95 allows a judge to grant misdemeanor diversion in his or her discretion except when a defendant has been charged with a DUI or one of the offenses listed in section 1001.95, subdivision (e).

“It is axiomatic that in assessing the import of a statute, we must concern ourselves with the Legislature’s purpose at the time of the enactment.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1048.)  The  Legislature has taken up several bills aimed at clarifying whether misdemeanor diversion is available to those charged with DUIs. The court of appeal urged the Legislature to clarify its intent with respect to the availability of diversion for misdemeanor DUI defendants under section 1001.95.

Recent legislative action on diversion for misdemeanor DUI

Assembly Bill No. 282 (2021–2022 Reg. Sess.) made DUIs exempt from misdemeanor diversion under section 1001.95. The bill passed in the Assembly. The Senate Public Safety Committee voted against the bill in July 2021, but granted reconsideration. Senate Bill No. 421 (2021–2022 Reg. Sess.) made misdemeanor DUIs eligible under certain conditions. Two Senate committees approved this bill in April and May 2021, but no further action was taken and the bill died. Senate Bill No. 783 (2021–2022 Reg. Sess.) declared express legislative intent to promote racial equity and reduce recidivism by making misdemeanor DUIs eligible for diversion under certain conditions. The bill was amended in the Senate and referred to the Senate Rules Committee in September 2021, but again no further action was taken and the bill died. Thus far, section 1001.95 has not been amended.

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