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California’s misdemeanor diversion law doesn’t include DUIs, court rules

A decision by California’s Fourth District Court of Appeal represents a major reversal for people who have been charged with a low-level DUI offense in San Diego. The court ruled that a new law that made entering into a diversion program as an alternative to trial easier for defendants excludes DUI charges.

The law gives judges the power to put a defendant in a misdemeanor case into a pretrial diversion program even if the prosecutor objects, with certain exceptions. The statute specifically states:

1001.95. (a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.

(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.

(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.

The judge can order the defendant to complete certain conditions, such as performing community service or not drinking alcohol, within a 24-month time frame. If the defendant meets the terms of the diversion, the court will dismiss the charges. Diversion is a way of keeping a criminal arrest and charge off your record. For the courts, diversions can help clear severely backlogged court schedules.

Court implores legislative fix

Soon after the law went into effect, prosecutors began arguing that the State Legislature did not intend to include DUIs in the new judicial diversion powers. Several judges have ruled on the matter on both sides of the debate.

This ruling by the Fourth District Court of Appeal is the first published decision on the issue, meaning it could become a precedent in California. In the decision, the three-judge panel wrote, “we implore… the Legislature to resolve” this apparent loophole.

What this could mean for your case

The ruling does not mean you cannot qualify for a diversion over a DUI charge. But it makes it more difficult.

Even if your case does not involve a car accident or physical harm to another person and you have no prior record, the prosecutor might refuse to consider pretrial diversion. However, you and your defense attorney still might be able to negotiate a plea bargain — or take the case to trial.

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