By Robert Phillips, Deputy District Attorney (Ret.)

Diversion for DUI Defendants (Part III) -  Diversion is not allowed in DUI cases.

In July of 2021, the Appellate Division of the Superior Court for Los Angeles County ruled that a diversion program pursuant to Pen. Code section 1001.95 is not available to Driving Under the Influence (i.e., “DUI”) arrestees.  (People v. Superior Court (Espeso) (July 14, 2021) 67 Cal.App.5th Supp. 1; see California Legal Update, Vol. 26, #9, August 12, 2021; Admin. Notes.)  However, two weeks later, the Appellate Division of the Superior Court for Riverside County ruled to the contrary in a split (2-to-1) decision, holding that diversion is available to DUI arrestees.  (People v. Superior Court (Diaz-Armstrong) (July 27, 2021) 67 Cal.App.5th Supp. 10; see California Legal Update, Vol. 26, #10, September 11, 2021; Admin. Notes.) Well, it took a few months, but finally the Fourth District Court of Appeal (Div. 3; Orange County), in agreeing with Espeso, held that there is no diversion for DUI arrestees. (See Grassi v. Superior Court (Dec. 28, 2021) 73 Cal.App.5th 283.)  And then, most recently, the First District Court of Appeal (Div. 1; San Mateo County) followed suit, also siding with Espeso and Grassi.  (Tan v. Superior Court (People) (Mar. 10, 2022) 76 Cal.App.5th 130.) The problem has been that the statute that discusses diversion for misdemeanors (see Pen. Code § 1001.95) fails to mention Veh. Code § 23152(a) or (b) when (in subd. (e) of section 1001.95) it lists the various misdemeanors for which diversion may not be granted.  To interpret section 1001.95 as authority for granting diversion to a DUI defendant simply by failing to specify that no such diversion is available, would require a court to ignore Veh. Code § 23640(a) which specifically says that diversion in DUI cases is not allowed.  Nonetheless, Riverside County’s Superior Court Appellate Division held in Diaz-Armstrong that the later-enacted Pen. Code § 1001.95 superseded Veh. Code § 23640(a), and that the Legislature’s failure to include Veh. Code § 23152(a) or (b) in its list of non-divertible misdemeanors reflected the Legislature’s intent to allow diversion in DUI cases.  Expeso, Grassi, and Tan have all ruled to the contrary, with Grassi and Tan being from a higher court than Diaz-Armstrong.  So the “nays” have it (at least pending one of these cases going to the California Supreme Court).  You get busted for DUI, doing the crime mandates that you do the time.