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Diversion Now Possible For All Misdemeanor DUI Offenders in California

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.

About Paul Burglin

Paul Burglin
Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been specializing in DUI defense for more 35 years After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense (as approved by the American Bar Association) and co-authors the two-volume treatise, "California Drunk Driving Law." He is past Dean of the National College of DUI Defense (www.NCDD.com) and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program. He has been selected to the 2021 Northern California Super Lawyers list and is A-V rated by Martindale-Hubbell.

If you would like to contact the author, please visit: http://www.burglin.com


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