Effective January 1, 2021, all persons charged with misdemeanor DUI offenses in California (Vehicle Code sections 23152 and 23153) are arguably eligible to avoid a criminal conviction through diversion. California Penal Code section 1001.95. An old statute (California Vehicle Code section 23640) purports to exclude DUI offenses from all misdemeanor diversion programs, but the language of this new statute and the history behind it clearly demonstrates a legislative intent to include DUI offenses within it. There are some trial courts still relying on the old statute to bar eligibility for DUI offenders, but the momentum has clearly shifted in the direction of finding statutory eligibility.
This does not mean that a finding of statutory eligibility guarantees a grant of diversion, for the authority to grant the diversion is left to the discretion of the trial court. Thus, even if eligibility is found, the court must still find that the accused defendant is suitable for it. This generally means the court must be satisfied that the defendant is committed to not reoffending and is likely to succeed on diversion, though judges are also likely to consider the facts and circumstances of each case. Since the legislature had not drawn any barriers to this misdemeanor diversion for DUI offenses, it would constitute an abuse of discretion for any court to deny diversion based on arbitrary rules for excluding them (e.g., high alcohol content, accident, high speed, chemical test refusal, etc.).
Paul Burglin himself has 30-plus years of sobriety. He is committed to helping his clients find a sober path and skilled at making them suitable for diversion. Diversion under this new statute is by no means automatic—you need an experienced and knowledgeable attorney on your side. You may contact Paul Burglin through his website at www.burglin.com or by calling him at (415) 729-7300.
