The Case For DUI Diversion In California!

In California, recent legal changes seemed to open the door for an unprecedented boon to those of us who have been practicing DUI defense: Diversion Programs. I have been practicing for about 28 years now in the San Francisco Bay Area, and I have found the possibility of DUI diversion to be extremely promising for defendants, the court system, and society as a whole.

Unfortunately, despite actually getting some traction in the Bay Area, higher courts in California have now ruled against offering diversion for DUI charges. I was fortunate enough to be able to get a few clients through diversion before that door shut, which demonstrated just how impactful and effective diversion can be if we can muster the political will to get a new law passed.

How Did A New Law Make DUI Diversion (Briefly) Possible?

In September of 2020, the legislature passed California Assembly Bill 3234, which allows for a diversion program for certain cases, including DUI cases. More specifically, it gave California superior court judges discretion over a DA or prosecutor’s objection to grant a diversion for a DUI case. This new law is addressed in California Penal Code Section 1001.95.

This led to another question, however, which is whether judges would actually be willing to accept DUI diversions. The answer to that turned out to be: it depends. From the start, most DUI diversion motions were denied, unless the case was in San Francisco. There were also doubts among both the general population and legal professionals as to whether judges really have the authority to grant diversion on a drunk driving case under these new laws.

For example, one very conservative ex-police officer assembly member even brought a bill to try to amend this new law to exclude DUIs and some other offenses from diversion. In 2022, this disagreement made its way to the highest courts in California, which came down with a decisive ruling: no diversions for DUI charges.

What Did DUI Diversions Look Like, While They Lasted?

DUI diversions were not an easy get-out-of-jail-free card for anyone; instead, they were a realistic and moderated alternative to heavy and costly justice system procedures that resulted in a better outcome for everyone. Here is how they worked in San Francisco in 2021:

Step 1: Judicial Approval

Even during the brief period when you could do so, applying for a diversion on a first-offense DUI in San Francisco was never easy or automatic. Your DUI defense attorney had to fill out a form and present it to the judge with an additional mitigating packet of evidence to show the court why you deserved diversion.

In each case, the judge would then evaluate the facts and determine whether or not to grant a diversion. On a first-offense DUI charge with no injuries, the chances of being given a diversion were, for a time, good in San Francisco cases – especially if you had never been in criminal trouble before. On the other hand, diversions were never handed out to people whose DUIs led to a serious injury or accident, or who had prior felony DUIs or other criminal charges.

Step 2: Following The Program

To benefit from the diversion, you needed to show the court that you would not only stay out of trouble, but also use the diversion as an opportunity to improve your personal, work, and family life.

Once you are granted the DUI diversion, you will have to avoid legal trouble, or else risk having the criminal charges reinstated. Assuming your DMV hearing is not won (and winning these hearings can be difficult), you would still have had to attend a three or nine-month DUI school. In addition, you would have been required to have SR-22 insurance for three years.

Step 3: Consequences

Even if you successfully completed a diversion program, your DUI arrest will still appear on your record; there will simply be no conviction for it. Avoiding a conviction helps significantly in terms of finding employment.

In addition, if you obtained a DUI diversion and were later to receive another DUI charge in the future, then that DUI will be considered a first DUI in court but a second DUI for DMV license suspension purposes. As a result, you would have to attend multiple-offender DUI School. It is also likely that receiving another DUI charge after being granted a diversion would result in greater penalties than a first-time offense.

What Advantages Did Diversion Offer The California Court System?

Even during the brief time it was available, diversion helped free up the courts in California, which have been backlogged due to COVID-19, and in need of tens of millions of dollars to fund jury trials.

In addition, people who were granted DUI diversion were still being penalized (e.g., via DUI school, suspended licenses, restricted licenses, etc.), which could reduce recidivism rates, but the cases are being diverted out of the criminal system, which avoids more jury trials.

This could have saved a lot of money, considering that a single DUI jury trial can cost around $50,000 and take up to a week or two to resolve, depending on the specifics of the case. Los Angeles and other cities throughout California could certainly have benefited from the savings offered by the new DUI diversion laws. It would also mean that Sacramento may not need to send our superior courts as much as they are sending them right now, lowering the burden on both.

It is my hope that society will realize that adding diversion permanently to DUI laws will help tremendously with our criminal justice system. Every single DUI charge is very serious and should be considered as such, but by imposing certain penalties, we affect recidivism rates.

Why Diversions Might Be Just As Effective (Or More So) At Reducing DUI Recidivism

Giving someone a criminal record, which could cause them to lose their job (along with a number of other consequences), is not the way to prevent people from reoffending, and it is not helping our society.

What will help is…

• Requiring that people take DUI and MADD classes to learn about how dangerous it is to drive while intoxicated.
• Imposing restrictions or suspensions on driver’s licenses for a certain period of time.
• Requiring ignition interlock devices in cars after a DUI offense.

These measures and more can be very effective at preventing additional DUI incidents, while remaining entirely compatible with diversion programs.

After all, regardless of whether you have a criminal record or not, as a DUI offender, the DMV can impose these penalties on you. If you do not win your DMV hearing, then the DMV is going to suspend your license or restrict it and require an ignition interlock device. You might also be required to attend DUI school, which is effective at teaching people about the seriousness of driving while intoxicated.

Is There A Future For DUI Diversion In California?

Hopefully, lawmakers will bring back the diversion program by passing it into law or removing the older laws that block it. If that happens, we might see more counties in the San Francisco Bay Area adopt this program, including Sonoma, Napa, Marin, Contra Costa, Alameda, San Mateo, Santa Clara, or Solano County.

DUI diversion has the potential to be a great program, especially if judges have the discretion to grant DUI diversions when it seems fair or appropriate. In the meantime, unfortunately, it remains unavailable for the foreseeable future.

If you are charged with Driving Under the Influence in San Francisco or anywhere in the Bay Area, you will need to pursue traditional avenues of defense with the help of a skilled DUI defense attorney.

For more information on DUI defense in San Francisco, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 223-7290 today.