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

December 15, 2020

Dismissal Under California Penal Code Section 1001.95 (Unfortunately – DUI Diversion is No Longer Available In California under the court of appeal decision)

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, and 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. However, a court of Appeals decision held that VC 23640 prohibits diversions for DUI regardless of DUI not being explicitly excluded from “non-diverable” offenses.

A very important benefit of diversion 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.


It means that for the first time in a while, the judges have the ability to dismiss Misdemeanor 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 don’t qualified for mental health diversion or military diversion.

Statutory, it was never clear if the trial court could grant a diversion under PC 1001.95 because of an apparant conflict between two statutes. On one hand, 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, prior to the recent Court of Appeals holding the trial courts granted some and denied other diversion motions.

Whether the 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. Only appeals from felony cases go directly to the Court of Appeals, misdemeanor appeals go to the Appellate Division of the Superior Court.

But even before the appellate court decision, the appellate division of the Superior Court split. For example, a grant of a diversion motion for a DUI in the Torrance courthouse was appealed to the Appellate Division and the Los Angeles County appellate division overturned the grant of diversion and held that because of VC 23640, a diversion cannot be granted for a DUI. At the time, an opinion from the Riverside appellate division in the case of Diaz-Armstrong came to the opposite conclusion. This conflict between the Appellate Division of the Superior Court was resolved by the Appellate court who, first in Grassi v. Superior Court (2021) 73 Cal.App.5th 283 and then in Tan v. Superior Court (2022) 76 Cal.App.5th 130, held that DUI cases cannot be diverted under California Penal Code 1001.95 due to California Vehicle Code 23640 disqualification.

And yet, at the legislative side, a bill that tried to specifically exclude DUI cases from diversion failed to pass as law (AB 282). This failure of AB 282 shows that the legislature intended for DUIs to be divertable.

Unfortunately, the Supreme Court declined to review Grassi or Tan, therefore a DUI is no longer divertable under PC 1001.95


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’s 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 DUIs 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. Then, 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.


Despite what most people believe, aggravating factors cannot be considered by trial courts in deciding whether to grant or deny a diversion motion. If your trial court is planning to deny your motion for military diversion or misdemeanor diversion or mental health diversion call Los Angeles Criminal Defense Attorney or Los Angeles DUI attorney to help win your motion and get a dismissal of your Los Angles criminal case.

A very important case for diversions is Wade v. Superior Court (2019) 33 Cal. App. 5th 694. In Wade, the trial court denied a motion for military diversion based on the severity of the offense. The Court of Appeals overturned the trial court’s denial of the motion and held:

[1]-Writ review was appropriate for an order denying military diversion under Pen. Code, § 1001.80, for a misdemeanor driving under the influence (DUI) offense under Veh. Code, § 23152, because issues needing prompt resolution were raised;

[2]-The trial court abused its discretion because its considered criteria were not related to suitability for treatment and rehabilitation, nor did the inherently dangerous nature of the offense and defendant’s blood alcohol concentration provide exceptions to the specific inclusion of misdemeanor DUI pursuant to § 1001.80, subd. (l), notwithstanding Veh. Code, § 23640, as a diversion-eligible offense;

[3]-Consideration of felony sentencing factors in Pen. Code, § 1170, subd. (b), was not in itself improper, but the principles of access to treatment and potential for rehabilitation would have to inform the exercise of discretion on remand.

Thus, after Wade, a 2019 decision, the court cannot say that because the conduct was dangerous, the motion is not appropriate.

Penal Code 17.2

On January 1, 2023, Penal Code 17.2 became law. Here is the text:

(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.

Thus, the California Legislature once again expressed its desire that Cases are resolved through diversion. Be this Mental Health, Misdemeanor Court Diversion, Prosecutor’s Diversion, or Military Diversion. Thus for any diversionary conduct (not prohibited by statute), your Los Angeles Criminal Defense Attorney or Los Angeles DUI Attorney must ask the court for 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, 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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