Diversion not available for misdemeanor drunk driving

Grassi v. Superior Court of Orange County (Cal. Ct. App., Dec. 28, 2021, No. G060362) 2021 WL 6124764, at *1

Summary: Grassi filed a petition for writ of mandate after the trial court concluded that she was statutorily ineligible for misdemeanor diversion. Grassi claims that Penal Code section 1001.95’s plain language and legislative history makes diversion available to misdemeanor driving under the influence defendants despite Vehicle Code section 23640’s prohibition on granting diversion to driving under the influence defendants.

The Court of Appeal, in this case of first impression, we conclude the two statutes can be harmonized  to provide diversion to misdemeanor defendants, except for those defendants excluded in Penal Code section 1001.95, subdivision (e), and misdemeanor driving under the influence defendants pursuant to Vehicle Code section 23640. The court denied the petition.


In August 2019, the Orange County District Attorney (OCDA) filed a complaint charging Grassi with misdemeanor driving under the influence of drugs (Veh. Code, § 23152, subd. (f). Grassi pleaded not guilty.

On January 1, 2021, Penal Code section 1001.951 went into effect. (Stats. 2020, ch. 334, § 1, pp. 3785-3786.) Grassi then filed a motion for misdemeanor diversion pursuant to section 1001.95. The OCDA filed an opposition arguing she was statutorily ineligible for misdemeanor diversion pursuant to Vehicle Code section 23640 (section 23640 or § 23640). Relying on section 23640 and Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 270 Cal.Rptr.3d 418 (Tellez), the trial court denied the motion. Grassi filed a petition for writ of mandate with the appellate division which was  court denied.

Retroactivity of section 1001.95

Section 1001.95 provides for a potential ameliorative benefit, so a person charged with misdemeanor DUI has the right to have the court determine if he or she is eligible and suitable for diversion if the case is not final. (People v. Frahs (2020) 9 Cal.5th 618, 638, 264 Cal.Rptr.3d 292, 466 P.3d 844; In re Estrada (1965) 63 Cal.2d 740, 744-745, 48 Cal.Rptr. 172, 408 P.2d 948.)

Case of statutory construction

 Grassi contends section 1001.95’s plain language requires diversion for all misdemeanor defendants, including misdemeanor DUI defendants, except those excluded in subdivision (e). G

“This is a question of statutory construction. We seek to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ ‘[W]e begin by looking to the statutory language.  We must give “the language its usual, ordinary import and accord[ ] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.”  (Carmack v. Reynolds (2017) 2 Cal.5th 844, 849-850, 215 Cal.Rptr.3d 749, 391 P.3d 625 (Carmack).)

Vehicle Code section 23640

Section 23640, subdivision (a), states, “In any case in which a person is charged with a violation of [Vehicle Code] [s]ection 23152 [DUI] or [Vehicle Code section] 23153 [DUI causing injury], 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.”

Section 23640 prohibits diversion in DUI cases. (People v. Weatherill (1989) 215 Cal.App.3d 1569, 1572, 264 Cal.Rptr. 298 (Weatherill).) Section  23640 applies to Grassi because she was charged her with misdemeanor DUI in violation of Vehicle Code section 23152.

Diversion under Section 1001.95

Grassi contends she was eligible for diversion pursuant to section 1001.95. Section 1001.95 authorizes a trial court to offer a misdemeanor defendant diversion, except for four express exclusions.4 Section 1001.95 provides as follows:

“(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 [s]ection 290.

(2) A violation of [s]ection 273.5.

(3) A violation of subdivision (e) of [s]ection 243.

(4) A violation of [s]ection 646.9.”

Section 1001.95 authorizes diversion in misdemeanor cases except for those offenses in subdivision (e), which does not include DUIs.

“[T]he statutes are in conflict and thus one must be interpreted as providing an exception to the other.” (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 956, 184 Cal.Rptr.3d 60, 342 P.3d 1217 (State Dept. of Public Health).)

It is  not clear the Legislature intended diversion for misdemeanor DUI defendants. This court harmonized section 23640 and section 1001.95 c to give both effect adhering to our Supreme Court’s instruction that repeal by implication is disfavored . The  Legislature in enacting section 1001.95 gave no indication it intended to repeal section 23640. The Legislature is resumed aware of section 23640, the other diversion statutes, and Weatherill, VanVleck, and Hopkins when it enacted section 1001.95. It was redundant to expressly exclude misdemeanor DUIs in section 1001.95 in light of section 23640.

The Court held section 1001.95 authorizes diversion for all misdemeanor defendants except those listed in subdivision (e), and misdemeanor DUI defendants pursuant to section 23640.

Acknowledging that this was a difficult decision that could have gone the other way, the court implored the legislature to resolve the diversion conundrum.

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