On again, off again. There has been much confusion surrounding diversion for misdemeanor DUIs. You may have read my earlier post where I discussed the differing opinions in the county superior courts. If not, a brief recap is as follows:

On January 1, 2021, a new law took effect which allows superior court judges to order diversion for most misdemeanors instead of a conviction. (Penal Code section 1001.95.)  If the defendant successfully fulfills the diversion order, the misdemeanor charge is dismissed forever more. As the law Is written there is a handful of misdemeanor offenses that are not eligible for diversion. Driving under the influence is listed among the exceptions.

However, there was a law already on the books, Vehicle Code section 23640, that stated a DUI charge cannot be suspended or stayed by the superior court in order to allow the defendant to participate in a rehabilitation program, nor can the court dismiss the charge upon the offender’s successful completion of such a program. This appeared to be a conflict with the new misdemeanor diversion law, at least for those charged with DUI.

As I discussed more thoroughly in my previous blog, Riverside County superior court’s appellate division held that the new misdemeanor diversion law was not in conflict with Vehicle Code section 23640, while LA Country’s appellate division held that it was.  Misdemeanor DUI defendants in Riverside County were receiving the benefit of a diversion order, LA County defendants were not. Orange County superior court also refused to grant diversion under the new law to DUI defendants.

This confusion spilled into other counties, but also gave many DUI defendants hope that they could receive a diversion and eventually have the DUI charge dismissed. DUI defense attorneys were confused too, often deciding to file a diversion motion, even in counties where the courts were not generally granting these motions.  Because it was only the superior court appellate divisions (Riverside and LA) that had weighed in, there was still no clear authority for those in other counties.

DUI defense attorneys hoped that the Court of Appeals or the Legislature would offer clarification.

Well, that finally happened. Two separate Courts of Appeal have come down on the side of LA County. The first of those decisions was published in December of 2021 by the Fourth District, Division 3, which is the Court of Appeals for Orange County (not to be confused with the Appellate Division of the Superior Court). The Court of Appeals, regardless of the district or division sets authority for the entire state. The second decision from the First District (San Mateo County) followed suit this month.

Unless the California Supreme Court decides otherwise, which is unlikely, we now have a definitive answer: Misdemeanor diversion under Penal Code section 1001.95 is NOT available to DUI defendants. How that will affect those DUI defendants that were granted diversion in Riverside and other counties may be legally challenging. But as it stands, DUI defense attorneys can no longer file for a diversion motion for their DUI clients. It is important to note that this does not affect DUI pretrial diversion for qualified military veterans.

Even though DUI misdemeanor diversion under Penal Code section 1001.95 is not available for DUI defendants, there are still other defense options available. William Weinberg invites you for a free consultation to discuss what options may be available to you.  Feel free to contact him at any time by calling his Irvine office at 949-474-8008 or by emailing him at

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