Is Penal Code Section 1001.95 Diversion Available to DUI Defendants?

In September 2020 Assembly Bill 3234 was enacted adding Penal Code section 1001.95 to California law. Section 1001.95 became law on January 1, 2021. Section 1001.95 allows a judge, at his or her discretion, to order a pretrial grant of diversion to a defendant charged with a misdemeanor.  The diversion order will require the defendant to comply with terms, conditions, or programs that the judge deems appropriate. If, at the end of the diversion period, the court determines the defendant successfully complied with the order, the charges against the defendant must be dismissed against the defendant.

Most DUIs are misdemeanors and as the Section 1001.95 is written now, DUIs are not excluded from a court-ordered grant of diversion.  This does not sit well with the district attorneys in California, nor with many legislators. Even Governor Newsom, when he signed the bill into law, expressed reservations that driving under the influence offenses were not excluded from the diversion program. Yet, now almost one year since the bill was enacted, DUI misdemeanoroffenses continue to be eligible for diversion under Penal Code section 1001.95. Or are they?

Some superior court judges are liberally granting Section 1001.95 diversion to defendants charged with misdemeanor DUI, some court judges are hesitant, and some steadfastly refuse to grant the diversion to DUI defendants altogether. There is a bill currently pending in the Legislature, AB 282, which is an act to amend Section 1001.95 to exclude DUI offenses from the diversion scheme. However, the bill failed on its first committee vote but is up for reconsideration. In the meantime, the appellate courts have had a say – and have confused the issue even more.

On July 15, 2021, the Superior Court of California, Los Angeles County, Appellate Division published a decision in the case People v. Superior Court (Espeso). That court held that section 1001.95 diversion does not extend to DUI offenses. The decision was based on the court’s understanding that Vehicle Code Section 23640 prohibits diversion programs for DUI offenses. Recognizing the tension between the two statutes (Penal Code section 1001.95 and Vehicle Code section 23640), the court cited legal precedent which demanded recognition that because the Legislature did not specifically state that diversion under Penal Code section 1001.95 would be allowed for DUI and/or did not amend Vehicle Code section 26340 to carve out an exception for section 1001.95 diversion, the Legislature intended DUI to be excluded from section 1001.95 diversion.

That settles that … well for almost two weeks anyway.

Less than two weeks after the Espeso decision, the Superior Court of California, County of Riverside, Appellate Division held in People v. Superior Court (Diaz-Armstrong) that diversion under Penal Code section 1001.95 is available to defendants charged with misdemeanor DUI. The Diaz-Armstrong court held that the Legislature did intend Section 1001.95 diversion to be available to DUI defendants “as an exception to the prohibition embedded in section 23640. If such was not the Legislature’s intent they could and should have clearly said otherwise.” (Diaz-Armstrong, supra, slip op at 22.)

Confused? Perhaps I should have titled this blog post: “Follow the Bouncing Ball.”

For practical purposes how will the trial courts square these two decisions? That remains to be seen. The Legislature may pass the pending legislation (AB 282) sometime in the future (although no vote is currently scheduled), which would specifically exclude DUI offenses from section 1001.95 diversion, or the issue might end up in a higher court. But as it stands now, it continues to be up to each trial court judge to grant or deny a 1001.95 diversion to a DUI defendant.

Whether a DUI defendant will be granted a Section 1001.95 diversion is not a given. But for those defendants who have been charged with misdemeanor DUI and have not yet been sentenced, it may be well worth the effort to petition the court for diversion under Penal Code section 1001.95. Until, and if, the law is amended to exclude DUI offenses and/or a higher appellate court rules that DUIs do not fall under the Section 1001.95 rubric, a Section 1001.95 diversion remains a possibility. It is up to the individual trial judge to grant the order, but considering that if diversion is granted (and diversion is successfully completed), the DUI will be dismissed before conviction, it is something certainly worth a try.

Orange County DUI defense attorney William Weinberg is available to discuss your DUI defense options. He offers a free consultation and convenient payment plans. You may contact him by calling his Irvine office at 949-474-8008 or by emailing him at



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