In January of 2021, a misdemeanor judicial diversion statute was passed. It allowed judges to offer a “diversion” of misdemeanor cases, which means that a defendant would be offered to continue his case and as long as he complies with the court orders, the case will get dismissed. This statute can be found in PC 1001.95. With this, the judges suddenly got a lot of power over criminal cases, because no longer a prosecutor has the ultimate control over a misdemeanor case. Penal Code 1001.95 allowed a judge to dismiss a criminal case over the prosecutor’s objection. Only 4 types of cases were ineligible for this judicial diversion:
- Cases that typically involve sexually related conduct (those that require sex offender registration)
- Domestic Violence Cases (Penal Code Section 273.5)
- Domestic Battery Cases (Penal Code Section 243(e))
- Stalking Cases (Penal Code Section 646.9).
CAN DUI BE DIVERTED?
Because DUIs were not one of the 4 excluded types of cases listed above, we argued that DUI could be dismissed under Penal Code 1001.95 by a judge over the prosecutor’s objection. We had some success in convincing the judges that DUIs qualify for diversion under Penal Code 1001.95 and had grants of diversion and eventual dismissals of DUIs under California Penal Code section 1001.95.
Usually, if prosecutors objected to granting of diversion, they would do by arguing that an older statute, California Vehicle Code section 23640 does not allow diversion for DUI cases. They would argue that the reason DUIs were not listed as the excluded crime in California Penal Code 1001.95, had to do with CVC 23640 already disqualifying DUI from the diversion. Los Angeles DUI defense attorneys would argue that the legislature was aware of CVC 23640, as shown by legislative history, and that rule of interpreting any conflict in statutes to benefit the defendant, known as the rule of lenity, requires that DUI are included in the judicial diversion under PC 1001.95.
RECENT CASE LAW SAYS: NO!
Alas, several courts of appeals sided with the Prosecutors, and the Supreme Court refused to review the Court of Appeal decision. Under Grassi v. Superior Court (2021) 73 Cal.App.5th 283 and Tan v. Superior Court (2022) 76 Cal.App.5th 130, DUI cannot be diverted under California Penal Code 1001.95 due to California Vehicle Code 23640 disqualification. Because, when the legislature listed 4 exceptions to diversion, it did not say that the list is exclusive, DUI exception to diversion under CVC 23640 must be another exception to PC 1001.95 court’s power to grant diversions. The court in Tan ignored statements made by legislators during the debate in the legislature because the statement of 1 legislator cannot be used as a reflection of collective legislature intent (citing Graham v. DaimlerChrysler Corp. (2004)
34 Cal.4th 553, 572, fn. 5.).
In short, DUI no longer can be diverted by the judge under PC 1001.95.
However, under the new section of California Penal Code § 17.2, the court is required to consider diversion as an alternative to incarceration:
a) It is the intent of the Legislature 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.
This means if a case is eligible for diversion, a court has to give strong weight to it.
For any other Los Angeles DUI-related or Los Angeles criminal-related questions, please contact Los Angeles DUI and Los Angeles Criminal Defense Attorney by calling us directly at 818-921-7744.