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Why The Rule of Lenity Should Be Invoked Regarding Diversion Eligibility For DUI Offenses

Grassi v. Superior Court (Div. Three of the Fourth District Court of Appeal – G060362) recently held DUI offenses are statutorily ineligible for diversion despite a 2021 diversion statute (Penal Code § 1001.95) that excludes specified crimes but not driving under the influence offenses. Its ruling was based on the Legislature’s failure to expressly repeal a forty year old statute (Vehicle Code § 23640) barring diversion for DUI offenses.

The legislative history behind Penal Code § 1001.95 strongly indicates an intent by the Legislature to make misdemeanor DUI offenses eligible for diversion, while leaving judges with the discretion to determine whether particular defendants are suitable for it.  Suitability for diversion traditionally focuses on the individual’s prospects for rehabilitation and avoidance of future criminal behavior.  Since the law’s enactment, defense lawyers have emphatically encouraged defendants to engage in early treatment and most have done so.

In both the House and Senate hearings discussing the new diversion statute, a couple of legislators vocally expressed opposition to DUI offenses being included in the program.  Yet no legislator suggested Vehicle Code § 23640 would remain a bar to misdemeanor diversion for DUI offenses.  It was very clear from these hearings that exclusion was not the legislative intent.

The Grassi Court will not have the last say on this issue.  A number of other cases are percolating in the Courts of Appeal on the same issue, including Chandler v. Superior Court of Napa (Division One of the First District Court of Appeal – A163833), Tan v. Superior Court of San Mateo (Division One of the First District Court of Appeal – A163715), and People v. Superior Court of Riverside (Ortiz) (Division Two of the Fourth District Court of Appeal – Docket E077594).  Prior to Grassi, two Superior Court Appellate Divisions split on the issue of eligibility: People v. Superior Court (Diaz-Armstrong and Spinelli, Jr.) 67 Cal.App.5th Supp. 10 (finding eligibility) and People v. Superior Court (Espesso) 67 Cal.App.5th Supp. 1 (finding against eligibility).

Given the history of California’s diversion legislation it’s inconceivable the Legislature was not deliberately vague on whether Veh. C. § 23640 bans misdemeanor diversion for DUI offenses under Pen. C. § 1001.95. In 2014 it enacted military diversion (Pen. C. § 1001.80) and witnessed the judicial division created by its failure to expressly repeal or limit Veh. C. § 23640. See People v. Vanvleck (2016) 2 Cal.App.5th 355 (holding the ban applied) and Hopkins v. Superior Court (2016) 2 Cal.App.5th 1275 (finding an implied repeal). In response to the Hopkins Court’s plea, it revealed its implied intent by amending the statute to expressly declare DUI offenses eligible. Pen. C. § 1001.80, subd. (l).

In the same legislative session that brought the clarifying amendment to Pen. C. 1001.80, the Legislature remained vague again on whether Veh. C. § 23640 bans mental health diversion (Pen. C. § 1001.36).  Predictably, trial courts were left to struggle again with deciphering the legislative intent on the same issue.  Presented with two felony DUI cases involving great bodily injury allegations (with at least one of the two defendants having an extensive criminal record that included two strikes), Division Two of the Fourth District Court of Appeal declined to find an implied repeal of Veh. C. § 23640. See Tellez v. Superior Court (2020) 56 Cal.App.5th 439 and Moore v. Superior Court (2020) 58 Cal.App.5th 561.  Unlike the Hopkins Court, the Tellez/Moore Court did not urge the Legislature to clarify its intent.

With the judicial quandary still brewing on DUI offense eligibility for mental health diversion, the Legislature enacted Pen. C. § 1001.95 to replace the Los Angeles Pilot Misdemeanor Diversion Program that had recently expired (Pen. C. §§ 1001.94 – 1001.98). It eliminated language specifically excluding DUI offenses from eligibility, but neglected to affirmatively address Veh. C. § 23640 with either a “Notwithstanding Veh. C. § 23640” or an “Except as provided in Veh. C. § 23640” clause.

It’s hard to fathom how the Legislature could not have seen this train coming.  The most logical explanation for it not addressing Veh. C. § 23640 is a fear of political retaliation by MADD—the entity that pushed for the enactment of Veh. C. § 23640 forty years ago.  Rather than expressly declaring a repeal of the statute for misdemeanor offenses it has let the Judiciary interpret its intent. It quite likely assumed its clarification of intent on the military diversion would be sufficient to reveal its implied intent for non-military defendants.

Politicians may play politics and lay low when they have to, but judges have a higher calling.  When deciphering ambiguous statutes, the honorable role of our Courts is to implement the legislative intent regardless of political ramifications. Canons of statutory construction are used to aid them in this task, but such tools do not always clearly resolve the issue.  In that circumstance, the Rule of Lenity may be employed to resolve the ambiguity in favor of the accused. People v. Manzo (2012) 53 Cal.4th 880, 889.

Ambiguous criminal statutes must be interpreted in favor of defendants when the courts can do no more than guess at what the legislative body intended. People v. Avery (2002) 27 Cal.4th 49, 58. “When [the Legislature] leaves to the Judiciary the task of imputing to [the Legislature] an undeclared will, the ambiguity should be resolved in favor of lenity.”  Bell v. United States (1955) 349 U.S. 81, 83-84.

“Lenity is also justified by the instrumental effect it has on the drafting of legislation. [It] encourages [the Legislature] to clearly specify…what punishments should be imposed.” Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, New York University Law Review (Oct. 2020), Vol. 95, No. 4, at 943.  When it comes to punishment, the government’s commands must be reasonably clear.  “When they are not clear, the consequences should be visited on the party more able to avoid and correct the effects of shoddy legislative drafting—namely, the federal department of justice (DOJ) or its state equivalent.”  Antonin Scalia & Bryan A. Garner, Reading Law: The Intepretation of Legal Texts, 299 (2012) (emphasis added).

The California Legislature has been persistently vague with its statutory text regarding diversion eligibility for DUI offenses. Invoking the Rule of Lenity will force more clarity from the Legislature and less guess work by the Judiciary.

Lenity is also compelled by the federal and state guarantees of fair warning under the Due Process Clauses.  See Liparota v. United States (1985) 471 U.S. 419, 427.  If avoidance of a misdemeanor conviction through Pen. C. § 1001.95 cannot be had, the Legislature should have given fair warning of it. Pen. C. § 1001.95 gives notice that certain offenses are ineligible for diversion but that notice does not include DUI offenses or make any reference to Veh. C. § 23640.

Forcing harmonization between the two competing statutes will not accomplish the Judicial duty to follow the Legislature’s intent in this instance.  Moreover, fair notice has not been given to the accused and the statutory ambiguity is egregious and appears purposeful. It is thus appropriate to invoke the Rule of Lenity and declare misdemeanor DUI offenses eligible for diversion under Pen. C. § 1001.95.


Paul Burglin has been a practicing criminal defense lawyer for the past 37 years and is Co-Author of the two-volume treatise California Drunk Driving Law (James Publishing).  He is Board-Certified in DUI Defense (as recognized by the American Bar Association) and is Dean Emeritus of the National College of DUI Defense.

Mr. Burglin has belonged to the fellowship of Alcoholics Anonymous for the past 31 years.  Helping clients avoid recidivism through treatment and sobriety is a hallmark of his practice.

You may contact Mr. Burglin through his website at

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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 ( 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.

One Response

  1. Opposition to BUI and DUI diversion:

    I am reaching out to you with the hope that you can assist me in raising awareness about the discrepancies that exist between BUI and DUI offenses. The recent amendment of AB 3234 means that DUIs no longer qualify for the misdemeanor diversion program, but BUIs still do. This is a matter of great concern.

    On September 15, 2019, my son, who was only eleven years old, lost his life due to a BUI incident. My husband, Javier Burillo, whom I had been married to for two decades, was taken into custody and charged with three felonies and additional enhancements. Mr. Burillo chose to consume alcohol that night, placed our autistic son in the riskiest area of the boat, and disregarded the high wind warning by speeding. After the incident occurred, he left the scene and changed his clothes while leaving our son’s remains behind. It was Mr. Burillo’s reckless decisions that resulted in the loss of our child’s life. Children do not just succumb to tragedies like these without any justification. Despite strong objections from the district attorney, Mr. Burillo’s charges were dropped to misdemeanors and he was granted diversion.

    While I hold no intention to defame Javier, my objective is to spread awareness about the risks associated with boating under the influence. There is a common misconception that BUI is less dangerous than DUI. However, this is not the case, and the penalties for BUI can be far more lenient. It is crucial to raise awareness of this matter to prevent further accidents in the future. By ensuring that the consequences for BUIs are comparable to those of DUIs, we can encourage safer practices and prevent future fatalities.

    As a mother who has lost her only child to BUI, I implore you to help me speak out about the injustice that has occurred. Everyone must be held accountable for their actions, regardless of their background. We cannot let this tragedy be in vain, and we must take the necessary steps to make sure that every offender is treated equally, regardless of the mode of transport.

    Please help me set the precedent that BUI and DUI offenses are treated equally, and that those who commit these crimes will be held accountable for their actions. Thank you for your time and attention to this important issue.

    Thank you for your time.

    Rose Grant (FKA Rose Burillo)

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