Is DUI Eligible for Judicial Diversion in California?
A diversion program is an alternative resolution of a criminal case by which you can avoid jail and a criminal conviction. The program diverts you out of the criminal justice system and into a form of supervised release or probation. In the context of DUI charges, this means that you may be given the opportunity to complete a series of court-ordered requirements, such as attending alcohol education classes or performing community service, in lieu of a criminal conviction. In other words, it's a way to resolve your case without a formal conviction, provided you meet certain conditions.
If you successfully complete the diversion program, you may have your case dismissed, resulting in a hopeful and optimistic outcome. However, if you fail the program, you are prosecuted for the original offense.
If you're facing a DUI charge in California, you may have come across discussions about judicial diversion programs. These programs can potentially dismiss charges for certain misdemeanor offenses, giving defendants a chance to comply with court-ordered terms and avoid a criminal conviction. But can you qualify for a diversion program for a DUI offense?
The short answer is that DUI is generally ineligible for diversion in California, but there is currently a discrepancy in the law that confuses the issue. Vehicle Code 23640 VC specifically prohibits the use of diversion for DUI offenses; however, Penal Code 1001.95, a newer statute that took effect in 2021, enables diversion for most misdemeanors and does not specifically exclude DUI offenses.
Some lawyers have effectively leveraged this discrepancy to obtain DUI diversion for their clients, and there have been instances of successful outcomes. However, court rulings are increasingly leaning against this. Let's take a closer look at this issue.
Misdemeanor DUIs
In California, misdemeanor DUI charges are generally not eligible for judicial diversion. Specifically, Vehicle Code Section 23640 states that a judge cannot suspend, stay, or dismiss a DUI charge upon the successful completion of a rehabilitation program.
While PC 1001.95 allows for judicial diversion in most misdemeanor cases, this law is typically interpreted in conjunction with Vehicle Code Section 23640, which pertains to driving under the influence (DUI). Penal Code 1001.95 allows judges to order diversion for most misdemeanors instead of a conviction. However, it's crucial to understand that this law is not the sole determinant of eligibility.
Vehicle Code Section 23640 prohibits judges from diverting DUI charges. It directly overrides the general eligibility granted by Penal Code 1001.95 for DUIs. Several court rulings have confirmed that DUI cases are not eligible for judicial diversion.
Notably, while misdemeanor DUI charges are generally ineligible, there are specific exceptions for certain individuals, such as those with a qualifying veteran's status or military history.
It's crucial to consult with a knowledgeable and experienced criminal defense attorney who understands California DUI law and the specific diversion programs available in your situation. Their guidance can provide you with the reassurance, clarity, and support you need in navigating the legal process.
DUI Diversion - Explained
In January 2021, a misdemeanor judicial diversion statute (PC 1001.95) was enacted. It allowed judges to offer a "diversion" for misdemeanor cases, meaning that a defendant would be given the option to continue their case, and as long as they complied with the court's orders, the case would be dismissed.
Thus, judges had considerable discretion in handling criminal cases, as prosecutors no longer had ultimate control over misdemeanor cases. This law allowed a judge to dismiss a criminal case over the prosecutor's objection. Only four types of cases were ineligible for this judicial diversion:
- Sexually related case requiring sex offender registration.
- Corporal injury to a spouse (Penal Code 273.5 PC).
- Domestic battery (Penal Code 243(e) PC).
- Stalking cases (Penal Code 646.9 PC).
Since DUIs were not among the four excluded types of cases listed above, there was an argument that a DUI could be dismissed under Penal Code 1001.95 PC over the prosecutor's objection by a judge.
There have been instances of success in convincing judges that DUIs qualify for diversion, resulting in eventual dismissals, offering a significant ray of hope and reassurance in these cases.
Typically, if prosecutors objected to the granting of diversion, they would do so by arguing that an older statute (Penal Code 23640) does not allow diversion for DUI cases.
They would argue that the reason DUIs were not listed as the excluded crime was related to VC 23640 already disqualifies DUI from the diversion.
Los Angeles DUI lawyers would then argue that the legislature was aware of VC 23640, as shown by legislative history, and that the rule of interpreting any conflict in statutes to benefit the defendant, known as the rule of lenity, requires that DUIs are included in the judicial diversion under PC 1001.95.
Recent Case Law
Notably, several courts of appeal sided with the prosecutors, and the Supreme Court declined to review the Court of Appeal's decision. Some notable cases include the following:
- Grassi v. Superior Court (2021) 73 Cal.App.5th 283.
- Tan v. Superior Court (2022) 76 Cal.App.5th 130.
- People v. Superior Court (Ortiz) (2022) 81 Cal. App. 5th 851.
In these cases, a DUI cannot be diverted under PC 1001.95 due to VC 23640 disqualification. Because when the legislature listed four exceptions to diversion, it did not say that the list is exclusive. Simply put, DUIs can no longer be diverted by the judge under Penal Code (PC) Section 1001.95.
What Does PC 17.2 Say?
The full statutory language of California Penal Code 17.2 PC says -
"(a) The Legislature intends that the disposition of any criminal case use the least restrictive means available.
(b) The court presiding over a criminal matter shall consider alternatives to incarceration, including, without limitation, collaborative justice court programs, diversion, restorative justice, and probation.
(c) The court shall have the discretion to determine the appropriate sentence according to relevant statutes and the sentencing rules of the Judicial Council."
Simply put, this means that if a case is eligible for diversion, the court must give it strong weight.
Judicial Diversion Under PC 1001.95
As noted above, Penal Code 1001.95 was enacted in 2021 as part of California's efforts to allow more defendants facing misdemeanor charges to avoid criminal convictions.
Under this law, superior court judges are granted the discretion to offer judicial diversion to defendants, even over the prosecution's objection.
Eligibility for diversion requires the defendant to comply with specific terms, conditions, or programs set by the court, such as counseling or community service, for a period that may not exceed 24 months. If the defendant successfully meets these requirements, their case is dismissed, granting them a clean slate.
Importantly, PC 1001.95 excludes certain offenses from diversion eligibility, including domestic violence and stalking. However, DUI offenses are not explicitly listed as excluded under this statute. This omission has led some attorneys to argue that misdemeanor DUI cases should be eligible for judicial diversion under PC 1001.95.
Vehicle Code 23640 and DUI Exclusion
Despite the language of PC 1001.95, an older statute remains on the books that specifically addresses DUI and diversion eligibility. Under Vehicle Code 23640, the courts cannot suspend or stay proceedings to allow a defendant to attend or participate in educational, treatment, or rehabilitation programs prior to conviction or acquittal, which is defined as diversion programs. Consequently, under VC 23640, DUI defendants are ineligible for pretrial diversion.
What is the Conflict?
Since PC 1001.95 does not specifically exclude DUI offenses, some attorneys have argued that it effectively repeals or overrides VC 23640, thereby opening the door for DUI defendants to seek judicial diversion. Under this argument, the absence of DUI in PC 1001.95's exclusion list is intentional, signaling the legislature's intent to allow diversion for these cases.
However, as noted, this interpretation has not found much support in California courts. Case law has consistently upheld the prohibition on DUI diversion under VC 23640. Courts have taken the position that PC 1001.95 does not explicitly repeal VC 23640, and therefore, the latter statute remains in effect unless the legislature directly addresses the conflict.
Additionally, courts often apply the principle of statutory interpretation, which holds that when two laws conflict, the more specific statute prevails over the general one. Because VC 23640 directly addresses DUI charges, it is considered to be the controlling law on this issue, even in the face of PC 1001.95. Based on this reasoning, DUI remains ineligible for judicial diversion in California according to case law.
Importance of a DUI Attorney
Given the current state of California law and court rulings, diversion for DUI charges is increasingly unlikely. While some may hope for future legislative changes to clarify this inconsistency, as it stands now, DUI defendants should not expect to be granted judicial diversion.
That being said, each case is unique, and the specifics of your situation could influence the outcome. This is where a skilled DUI defense attorney becomes invaluable. While diversion may not be an option, other legal strategies can be pursued to potentially reduce charges, minimize penalties, or even secure an acquittal.
An experienced attorney will thoroughly review the details of your case, including the circumstances of your arrest, the accuracy of breath or blood test results, and whether law enforcement followed proper procedures.
Your attorney can also negotiate with prosecutors in search of plea deals for reduced charges or alternative sentencing options, such as participation in alcohol education programs. Finally, if the circumstances of your case permit, your attorney can advise you on whether it's in your best interests to seek eligibility for diversion, if not for DUI specifically, then perhaps for an underlying issue.
For additional information, contact our criminal defense law firm, Eisner Gorin LLP, located in Los Angeles, CA.
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