Dismiss Your DUI or Dismiss Your Criminal Case (Misdemeanor Diversion)

December 15, 2020

Dismissal Under California Penal Code Section 1001.95

The law changes in California once again. Starting January 1, 2021, California Penal Code section 1001.95 will allow judges, over the prosecutor’s objection, to dismiss misdemeanor cases. This law seems to apply to DUI cases and a judge now can dismiss your DUI case. To do that, a judge has to be convinced that diversion is appropriate in your case. Also, you have to agree to continue your case for up to 24 months and do what the judge asks you to do. A judge might ask you to do an alcohol education program, visit a hospital and morgue, do AAs and/or community service. This is called a diversion because the criminal case is diverted from prosecution. The diversion, when offered, is offered based on the judge’s determination of conditions unique to specific defendants. So, it must be presented on a motion with supporting documents and arguments. Having an experienced Los Angeles DUI attorney will help you get your DUI case dismissed. Some crimes are excluded from the diversion. Currently, only these 4 categories are excluded:

  • 1) offenses registrable as sex offenses
  • 2) Domestic Violence Cases (California Penal Code sections 273.5)
  • 3) Domestic Battery (California Penal Code section 243(e)(1))
  • 4) Stalking Cases. (California Penal Code section 646.9)

So, DUI cases are not excluded from the list of crimes under PC 1001.95.

A very important benefit is that upon completion of the requirements, not only the court will dismiss this case, but also, the arrest will be deemed to never have occurred.

WHAT DOES IT MEAN

It means that for the first time in a while, the judges have the ability to dismiss DUI cases. Previous to this, a judge had no power to interfere in the prosecutor’s decision to file a criminal case. Now, not only the judge can dismiss a case, but also, the arrest can be sealed.

Right now, the criteria to get California Penal Code 1001.95 is not clear. It is expected that some judges will refuse to grant PC 1001.95 diversion, but it is also possible that some judges will. For example, when a prosecutor files a low BAC DUI or when you are almost qualified for mental health diversion.

The reason it is not clear if the court has the power to grand Diversion under PC 1001.95 is based on the conflict between two statutes. PC 1001.95 allows diversion for all misdemeanors excluding 4 enumerated offenses. On the other hand, VC 23640 does not allow diversions for DUI cases. Because of this conflict, the courts have been granted some and denying other diversion motions.

If a motion is granted or denied, it can be appealed to the appellate division of the County Superior Court or a writ can be filed with the same division. Felony appeals go directly to the Court of Appeals, but misdemeanor appeals go to the Appellate Division of the Superior Court.

Several cases have been appealed; however, even on the appellate level, the courts have split. An opinion from Los Angeles County appellate division held that VC 23640 controls and a diversion cannot be granted for a DUI. An opinion from Riverside COA (Diaz-Armstrong) came to the opposite conclusion. It seems that this conflict now has to be resolved by the Supreme Court or legislature directly.

The legislative bill to try to specifically exclude DUI cases from diversion at the legislature levels has also failed (AB 282). This failure of AB 282 shows that the legislature intended for DUIs to be divertable.

OTHER TYPES OF DIVERSIONS

Here are the other 2 types of diversions currently available for misdemeanor DUI cases in Los Angeles.

Penal Code Section 1001.36 (Mental Health Diversion)

In 2018 the legislature adopted a diversion for Mental Health. This diversion applies for felonies and misdemeanors as long as the defendant qualifies under the statute.

Many psychological and psychiatric conditions are covered. The statute does not prevent diversion for DUIs, however, the Court of Appeals in October of this year in Tellez v. Superior Court (56 Cal. App. 5th 439) disallowed the use of PC 1001.36 mental health diversion for DUI cases. The court reasoning is based on the California Vehicle Code section 23640, a 1999 code section that specifically excludes DUI and DUI with injury from any diversion. The court in Tellez looked at the legislative history and decided that if the legislature wanted to include DUI in mental health diversion, they would do so explicitly (just like they did with the military diversion under Penal Code section 1001.80).

Penal Code Section 1001.80 (Military Diversion).

Prior to Tellez holding that DUI’s are not eligible for a mental health diversion under California Penal Code section 1001.36, a similar issue was developing with a Military Diversion Law adopted as California Penal Code section 1001.80 in 2015. The military diversion statute, just like “a general misdemeanor diversion statute”, did not explicitly list DUI cases are the type of cases eligible for diversion. So, just like with the mental health DUI diversion decided in Tellez, the military diversion trial court decision made its way to the court of appeals. There, two conflicting Court of Appeals opinions, Hopkins and Van Vleck came down with Hopkins holding that DUI can be diverted through PC 1001.80 military diversion and Van Vleck holding that DUI can not be diverted. The conflict in case law was referred to the Supreme Court, however, before the Supreme Court could decide, the California Legislature amended the military diversion statute and held that DUIs are eligible for military diversion under PC 1001.80.

The Prosecution often brings up California Vehicle Code 23640 in an argument that diversion is not allowed for DUI cases. However, VC 23640 existed when Military Diversion was passed and Hopkins held that VC 23640 does not bar DUI diversion. Thus, at least one court of appeals opinion held that VC 23640 (being an older statute) does not bar DUI dismissal based on diversion.

Completion of Diversion

Upon completion of the diversion program, the court must dismiss your DUI. If the court refuses due to the changes in the law (Esposo), I believe it is possible to argue that determinantal reliance mandates dismissal. In a 1985 case of B.W. v. Board of Medical Quality Assurance (1985) 169 Cal.App.3d 219 the court held that after the diversion was completed, a Penal Code section 1001.5 prohibits an administrative agency from instituting disciplinary proceedings. There, B.W. completed drug diversion and 13 months later the medical board wanted to discipline him based on the same dismissed conduct. The court of appeals stopped that and prohibited discipline.

For any specific questions or eligibility please call our office at (323) 464-6424 to talk to Criminal Defense and Los Angeles DUI attorney directly.

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