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California’s new DUI diversion law causing confusion

On Behalf of | Oct 11, 2021 | DUI |

A new California law allows judges to grant diversion for first-time misdemeanor driving under the influence offenses. But it has caused confusion and has become the most litigated issue in the state.

This law, AB 3234, took effect on Jan. 1 and falls in the state penal code. But prosecutors and others claim that it conflicts with an existing Vehicle Code provision that prohibits judges from granting diversion or eventual dismissal of DUI charges.


Superior Court judges, under the new law, have the discretion to grant diversion in misdemeanor DUI cases based on severity issues such as the driver’s blood alcohol content level, speed, where the offense occurred and whether property was damaged.

Judges may stop proceedings for up to 24 months so that defendants may complete a program requiring, among other things, counseling or attendance at AA meetings and reporting their progress to the judge. Defendant who successfully complete this program may have their arrest record quashed and their charges dismissed.

Different application

The law has been applied inconsistency. Granting of DUI diversion often depended on the county where the charges were filed or the judge presiding over the case.

In an appeal to the state Supreme Court, one lawyer referenced 11 DUI cases from eight courts across the state including Riverside, Orange, and Los Angeles counties. Five defendants received diversion while diversion for five others was denied. A judge in the 11th case said that further review was necessary.

Prosecutors, criminal defense attorneys and legislators are seeking guidance from the state’s appellate courts or new laws to resolve the different interpretations and application of this law. Courts have continued or delayed cases for months in anticipation of a binding appellate court opinion.


Prosecutors filed appeals and claimed that DUI offenders are ineligible for diversion because of the state’s vehicle code. Courts have issued different rulings.

A Los Angeles Superior Court ruled on July 14 that DUI defendants do not qualify for diversion. That court found that the legislature did not address whether misdemeanors diversion can be granted for DUI cases and did not repeal the Vehicle Code.

On July 27, a panel in Riverside Superior Court’s appellate division denied a motion by the district attorney and ruled that DUI defendants are eligible for pretrial diversion under the new law.

Some appellate panels in Orange County ruled that misdemeanor DUI offenses are ineligible for diversion. Other panels have declined to hear petitions on that issue.

Bills were introduced to address this matter. But anyone stopped for a DUI should seek legal representation to help assure that their rights are protected.