On January 2, 2021, California implemented a new diversion program that applies to some misdemeanor offenders. The new rule is set forth in Penal Code section 1001.95.
The new law allows a judge over the objection of the prosecuting attorney to offer diversion to a defendant pursuant to the terms of Penal Code section 1001.95. Those terms can include a number of conditions that the judge deems appropriate under the circumstances, and last for a period of up to 24 months.
Following the completion of the period of diversion, if the defendant remained in compliance, the judge can dismiss the case. However, if during the period of diversion the defendant does not appear to be in compliance, or has committed a new violation the court can terminate diversion and reinstate criminal proceedings.
As we mentioned above, there are a few offenses for which misdemeanor diversion cannot be granted. Those offenses are set forth in Penal Code section 1001.95 subdivision (e). The offenses precluded from diversion are, an offense for which an individual would be required to register as a sex offender, a domestic violence charge (Penal Code section 273.5 and Penal Code section 243(e)(1)), and a violation of Penal Code section 646.9.
While not an offense listed in Penal Code section 1001.95 there has been a notable reluctance in many courts across the state and, specifically here in the Central Valley, to offer diversion when an individual is charged with a Violation of Vehicle Code section 23152 subdivision (b) (driving under the influence.) When a defendant is charged with a violation of Vehicle Code section 23152 subdivision (b) the court appears to find some reason as to why diversion should not be granted.
Currently, there is legislation pending in California, Assembly Bill 282, to exclude driving under the influence and other alcohol-related driving offenses from misdemeanor diversion. As it stands, the assembly bill has failed to pass.
Diversion is often reserved for what the court considers other minor misdemeanor offenses when the defendant has no criminal history. Over time, it remains to be seen if courts will start granting diversion for other offenses including driving under the influence. The clear intent of the legislature in enacting Penal Code section 1001.95 was to provide the court with authority to grant diversion even when the defendant is charged with a violation of Vehicle Code section 23152 subdivision (b).
If you have been charged with a misdemeanor and would like to discuss whether the new diversion program may be available to you, please give us a call.