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What Is The Current Status Of The Law In California For Diversion On DUI Cases?


In California, recent changes in DUI law are having an impact that is unreal to those who have been practicing DUI defense in the San Francisco Bay Area for many years. I have been practicing for about 28 years now, and I can say that the changes are very interesting and encouraging.

Many people have been asking about the new diversion law. 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 allows superior court judges in the San Francisco Bay Area and entire state of California 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 leads to another question, which is whether this is something that judges are actually willing to do. The answer is that it depends. From what we’ve seen so far, many DUI diversion motions are being denied unless the case is in San Francisco. Many people wonder whether judges really have the authority to grant diversion on a drunk driving case, and whether it is a true reflection of what the law actually states.

A very conservative ex-police officer, now an assembly member, has already brought a new bill to try to amend this new law to exclude DUIs and some other offenses from diversion. It is unknown how this new bill will play out, but most likely any change to the current law will not take place until 2022.

To apply for a diversion on a first-offense DUI in San Francisco, the DUI defense attorney will fill out a form and present it to the judge. The DUI defense attorney can put together a mitigating packet to show the court why their client is deserving of diversion. Diversions are not going to be handed out to people whose DUI led to a serious injury accident, or who have prior felony DUI or other criminal charges. In each case, a judge will 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 granted a diversion are good in a san Francisco case. However, the defendant needs to be able to show the court that they will not only stay out of trouble, but use the diversion as an opportunity to improve their personal, work, and family life. During times of such struggle amid COVID-19, this new diversion law is helping a lot of people—especially those who have never been in legal trouble before.

People who are granted DUI diversion will have to avoid legal trouble, or else risk having the criminal charges reinstated. Assuming the DMV hearing is not won (and winning these hearings can be difficult), people who have been granted a diversion will still have to attend a three or nine-month DUI school. In addition, they will be required to have SR-22 insurance for three years. The DUI arrest will still appear on their record, but there will not be a conviction for it, which helps significantly in terms of finding employment.

If an individual is granted a DUI diversion and gets another DUI charge in the future, then that DUI will be considered a first DUI in court but a second DUI for suspension purposes. As a result, they 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.

This law is helping to 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. People who are granted DUI diversion are still being penalized (e.g., via DUI school, suspended licenses, restricted licenses, etc.), which will reduce recidivism rates, but the cases are being diverted out of the criminal system so that they’re not lining up for jury trials.

This is saving 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 are beginning to take advantage of this monetary benefit provided by the new DUI diversion law. This means that Sacramento may not need to send our superior courts as much as they’re sending them right now.

It’s my hope that society will realize that this change in the law will help tremendously with our criminal system. Every single DUI charge is very serious and should be considered as such, but by imposing certain penalties, we reduce recidivism rates. 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 these people take DUI and MADD classes to learn about how dangerous it is to drive while intoxicated, and imposing restrictions or suspensions on driver’s licenses for a certain period of time. For instance, requiring that an offender have an ignition interlock device in their car can be very effective at preventing additional DUI charges in the future.

Regardless of whether a DUI offender has a criminal record, the DMV can impose these penalties. If the defendant does not win their DMV hearing, then the DMV is going to suspend their license, or restrict it and require an ignition interlock device. DUI school is also effective at teaching people about the seriousness of driving while intoxicated.

Hopefully, more counties in the San Francisco Bay Area will adopt this program, whether it be Sonoma, Napa, Marin, Contra Costa, Alameda, San Mateo, Santa Clara, or Solano County. DUI diversion is a good program that gives judges the discretion to grant DUI diversions in certain cases.

When an attorney takes on a DUI case that holds the possibility of a diversion, they are going to tell their clients to begin going to AA meetings, DUI school, and/or therapy in order to maximize their chances of being granted a diversion. There are several things a defendant can to do help themselves get a diversion instead of a conviction. This will also help the attorney show the judge (and society) that the defendant is willing to take steps to ensure that they don’t make the same mistake again.

Diversion for DUI has many benefits. If anyone has questions about how it works in California or would like more details, they should contact an experienced DUI attorney. They are welcome to contact us for a free consultation.

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) 523-7878 today.

Aaron Bortel

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