Diversion for DUI in California

California Judicial Diversion in 2021

In 2021, Judicial Diversion has allowed California judges to grant people diversion on most misdemeanor criminal offenses, over the objection of the prosecution. Certain crimes were specifically excluded under the new law, such as Domestic Violence (DV) and 290 sex registration offenses. I remember a time when there was a diversion program for DV cases as well and still believe that judges should be given the discretion to offer diversion in less egregious DV cases.

Diversion isn’t intended as a free ride for people that commit crimes. It’s more of an attempt to rehabilitate people and reduce recidivism. In fact, it will mean jumping through hoops and participating in rehabilitative programs for up to two (2) years. Pretrial Diversion is a way of giving a second chance to offenders that are minimally involved in crime and maximally motivated to reform.

The legislative purpose and rationale behind Assembly Bill 3234 is; “Diversion programs that are successfully completed allow a person to avoid the lifelong collateral consequences associated with a criminal record when they are seeking employment or housing. Diversion programs typically require individuals to fulfill strict requirements, including participating in a rehabilitation program. This proactive approach has shown to yield better recidivism rates than merely prosecuting and jailing an individual.”

Diversion is sort of a way of removing a criminal charge from the normal justice process. The criminal justice system has grown into a giant bureaucracy intent on regulating what people do by punishing those individuals that step outside the lines. While I agree that there is conduct that should be punished, there are way too many minor offenses that I believe could be dealt with differently.

Pretrial diversion programs are already in place for other crimes and we agree with the new law under Penal Code §1000.95 that allows DUI cases to be diverted from the criminal justice system. Our criminal court system has become far too interested in judicial economy and pushing cases through the system as fast as possible. We see diversion as a way of perhaps educating people in ways that help them avoid a second visit through the criminal justice system.

There are no DUI Diversion specific guidelines, whereas with other diversion eligible cases counties have had programs in place for many years. That may be another reason Judges aren’t anxious to grant Pretrial Diversion on DUI cases. When presenting a petition for court-initiated Diversion on a DUI case, it may prove beneficial to share reasonable terms in the proposal for rehabilitation, using some of the terms or penalties that judges are familiar with in DUI cases.

Those should include some form of Community Service but no real jail time and whichever DUI program would otherwise be ordered with a DUI sentence when probation is granted. If a defendant successfully completes a diversion program, the charges are dismissed without the stigma of a criminal conviction. That means the person would not have a criminal record from the offense.

I wrote a blog several years ago that made a case for offering Diversion to college students arrested for DUI. In that article I stated that I didn’t believe a single error in judgement should derail a college graduate from getting the job they worked so hard for. The cost of college is astronomical and the devastation the parents feel was also a factor in favor of such a program in my blog. The legislature has already carved out exceptions for Military Diversion and Mental Health Diversion for individuals arrested for DUI. It makes sense to me to make DUI Diversion a consideration for any individual that presents a reasonable basis for inclusion.

From what I hear around the State from fellow members of the California DUI Lawyers Association, Prosecutors and Judges were quick to find reasons why DUI cases should be excluded from the new law. Slowly but surely, criminal defense attorneys have shared transcripts from the legislative sessions and have provided other compelling evidence that DUI cases were not meant to be excluded.

Even so, the prosecution in most counties have made every effort to fight the granting of pretrial diversion in DUI cases. It seems as though most judges have aligned with the prosecutors by denying diversion on DUI cases as well, citing a variety of facts in the police reports, etc. that suggest that specific individuals aren’t good candidates for the program.

Now it appears that an Assembly Member has introduced a bill that would exclude DUI cases from being eligible for Pretrial Diversion. If the bill passes in the Assembly, it will move forward to the Senate. If passed there it will make it to Governor Newsom’s desk sometime in the fall of 2021. If the Governor signs that bill it would effectively remove DUI cases from Diversion eligibility on January 1, 2022. Governor Newsom’s statement prior to signing the legislation last year stated that he wished that it excluded DUIs. This leaves a very small window of opportunity.

If you believe your circumstances would provide a compelling reason for a judge to grant Pretrial DUI Diversion for you, give us a call and share your story with Kevin Mighetto or me.