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, Penal Code section 1001.95 will allow judges, over the prosecutor’s objection, to dismiss misdemenor cases. 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. 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. Because this is a new law, no one knows how to do it correctly, however, having an experienced Los Angeles DUI attorney will help. Some crimes are excluded. Currently, only this 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. But wait, 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 MEANS

It means that for the first time, judges have the ability to dismiss a DUI. 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 almost qualified for mental health diversion. This brings us to the next point.

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 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).

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

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