New Misdemeanor Diversion Law Doesn't Apply to California DUI's

Assembly Bill 3234, effective January 1, 2021, created a statutory basis for Misdemeanor Judicial Diversion. The bill, codified in Section 1001.95 of the Penal Code, essentially empowers any judge to grant diversion of a misdemeanor, without a guilty plea, and without agreement by the prosecuting agency. This is a really big change to criminal law in California.

There has been some confusion as to if this still applied to a misdemeanor DUI. Unfortunately, DUIs don’t qualify for under the new California diversion law. Prosecutors argued instead that an existing state Vehicle Code provision forbids diversion for driving under the influence of alcohol or drugs. 

In a recent California DUI case, Islas v. Superior Court (2021), petitioner Alicia Urbieta Islas who was charged with misdemeanor DUI moved for pretrial diversion under Penal Code section 1001.95. This normally would give the judge discretion to offer diversion to a misdemeanor defendant. However, the trial court denied diversion based on Vehicle Code section 23640, under which DUI defendants are categorically ineligible for diversion. In regards to Islas, two other case findings were considered that appellate courts had published decisions finding misdemeanor DUI defendants similarly situated to petitioner categorically ineligible for Penal Code section 1001.95 diversion. (Grassi v. Superior Court (2021) 73 Cal.App.5th 283 2 (Grassi); Tan v. Superior Court (2022) 76 Cal.App.5th 130 (Tan).) It was agreed that with the reasoning in those authorities and therefore the petition for writ of mandate was denied.

Misdemeanor DUIs are not the only charge that doesn’t apply to the new Misdemeanor Diversion Law. Penal Code section 1001.95 also states that a “defendant may not be offered diversion” for any of the following charged offenses: Penal Code section 273.5 (inflicting corporal injury on a domestic violence victim); Penal Code section 243, subdivision (e) (battery on a domestic violence victim); Penal Code section 646.9 (stalking); and any offense for which a person would have to register under Penal Code section 290 (sex offender registration).

Regardless if it’s a DUI or any charge, if you have been charged with a misdemeanor and think you may be eligible for Diversion, please contact us at once for a free consultation. At the Mitchell Law Group, Inc. our attorneys offer aggressive drunk driving defense to local residents and those charged with DUI/DWI while visiting our area.