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Are DUI Offenders in CA Eligible for Misdemeanor Diversion?


Effective as of January 1, 2021, Assembly Bill 3234 allows first-time DUI offenders in California to qualify for misdemeanor diversion. Under a diversion program, defendants are given up to 24 months to complete certain conditions (e.g., regular court check-ins, attending AA meetings, counseling, fines, restitution, etc.) in exchange for having their charges dismissed and their arrest record expunged upon completion of the program. 

However, the new law conflicts with Vehicle Code Section 23640, which prevents judges from granting diversion to DUI offenders in lieu of criminal penalties. This confusion has resulted in many legal battles among prosecutors and criminal defense attorneys throughout the state. 

About AB 3234 

Once AB 3234 went into effect, Superior Court judges have had the discretion to grant diversion in misdemeanor DUI cases according to the facts and circumstances of each case, including the defendant’s blood alcohol content (BAC) at the time of the arrest, if speeding was a factor if property damage was involved, and the location of the offense. DUIs involving injuries or other felonies are not eligible for diversion under the new law. 

Recent Court Rulings on AB 3234 

According to The San Bernardino Sun, prosecutors started filing appeals because DUI offenders do not qualify for diversion under Vehicle Code Section 23640. While some appellate division judges have ruled in favor of prosecutors, others did not. 

On July 14, appellate division judges in Los Angeles County Superior Court unanimously ruled that DUI defendants are not eligible for pretrial diversion since the new law did not specifically address DUI cases and failed to repeal the Vehicle Code provision. 

On July 27, Riverside Superior Court’s appellate division denied a motion by District Attorney Mike Hestrin and ruled that DUI defendants qualify for diversion under the new law. 

In Orange County Superior Court, some appeal division panels have ruled that DUI offenders are not eligible for diversion, while others have declined to hear petitions raised by prosecutors. 

Lara Gressley, a criminal defense attorney in Riverside, filed a petition to the California Supreme Court in June to decide on the issue after her motion to grant diversion to a client was denied in Los Angeles Superior Court. She cited 11 DUI cases from eight Superior Courts across the state, in which five defendants were granted diversion and five were declined, while the 11th case requires further review. 

Future Legislation 

Introduced by Senator Steven Bradford (D-Gardena), SB 421 would limit diversion to DUI offenders who have no prior DUI convictions and have not completed diversion for DUI within a 10-year period. If a DUI offender is granted diversion, the bill would require the individual to install an ignition interlock device (IID) and enroll in counseling and education programs. 

So far, Bradford’s bill has been signed off by two key Senate committees. 

Another bill, AB 282 by Assemblyman Tom Lackey, attempts to eliminate DUIs from the qualifying offenses under AB 3234. However, the bill was rejected by the Senate Public Safety Committee in July. 

If you have been arrested for a DUI in Santa Barbara, call Appel & Morse at (805) 467-6060 or fill out our online contact form today to request a free case evaluation. Our legal team of former prosecutors has more than four decades of combined legal experience! 

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