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Charged with Both DUI and Another Crime? Dismissal of “The Other Crime” Under Diversion

May 17, 2025

California law provides three court-authorized pathways to seek dismissal of a criminal charge through diversion:

Judicial Misdemeanor Diversion – under Penal Code § 1001.95
Military Diversion – under Penal Code § 1001.80
Mental Health Diversion – under Penal Code § 1001.36

However, due to controlling case law, diversion is not permitted for DUI offenses unless the defendant qualifies for military diversion under Penal Code § 1001.80. This means that most DUI charges are categorically ineligible for dismissal through judicial or mental health diversion programs.

So what happens when you’re charged with DUI and an additional offense in Los Angeles or elsewhere in California—such as drug possession, or gun possession, and you qualify for diversion on the non-DUI charge?

Here, Los Angeles DUI Attorney Alex Andryuschenko explains your legal options and how courts handle these situations, especially when one charge may be eligible for diversion while the DUI charge is not.

As a Los Angeles DUI Attorney and Criminal Defense Attorney, I often represent clients who are charged with both drug and alcohol-related offenses. A critical question that arises in these cases is: If I’m facing a DUI charge, does that automatically disqualify me from getting drug diversion under California law?

The answer is no—and a key California Court of Appeal decision proves it.

Case Highlight: People v. Fulk (1974)

In People v. Fulk (39 Cal.App.3d 851), the defendant was arrested for possessing marijuana and driving under the influence of alcohol. After his motion to suppress evidence was denied, he asked for pretrial diversion under Penal Code §§ 1000–1000.4, a program that allows first-time drug offenders to avoid a conviction by completing education or treatment.

However, the district attorney said no, arguing that Fulk wasn’t eligible for diversion because he also had a DUI charge. The trial court went along with that decision and sentenced him to probation.

On appeal, the Court of Appeal disagreed!

The Ruling: Diversion Eligibility Doesn’t Require “Drug Charge Only”

The court held that a DUI charge does not make a person automatically ineligible for diversion on a separate drug charge (or any other charge). The law (Penal Code § 1000) only requires that the defendant:

Be charged with a listed drug offense
Have no prior drug convictions or parole/probation violations
Not be charged with a drug offense involving violence or additional serious drug charges

Nothing in the law says a person must be charged only with a drug offense to qualify.

This is critical because many first-time drug arrests or gun possession happen during traffic stops, and a DUI charge is often added. The court ruled that denying diversion to these defendants violates the very purpose of the statute—rehabilitating low-level drug users and reducing the clog in the court system. By extension, the logic of Fulk’s court decision can be applied to PC 1001.95 and PC 1001.30 diversions for any offense converted by these statutes.

What This Means for You

If you or someone you know has been arrested in Los Angeles or anywhere in California for drug possession, gun possession, and a DUI, you may still qualify for diversion. The district attorney’s decision can be challenged, and courts are required to consider diversion if you meet the statutory criteria.

As a Los Angeles Criminal Defense Attorney and DUI Lawyer, I fight to ensure my clients are not unfairly disqualified from diversion programs that could keep their records clean and protect their future.

Arrested for DUI and Drug Possession or Gun Possession in Los Angeles?

Don’t assume you’re out of options. Contact me, Alex Andryuschenko, an experienced Los Angeles DUI Attorney and Criminal Defense Lawyer, for a free consultation. I will review your case, challenge the DA’s decision if necessary, and fight for your right to diversion and DUI case for a complete dismissal.

Call now: (323) 464-6424
Email: [email protected]