Diversion programs give individuals a second chance by dropping criminal charges if the individual completes all the requirements set by the judge. Drug diversion programs are helpful for non-violent offenders who may be better served by treatment programs than time in jail and a criminal record. A new California has opened up the possibility of diversion for most misdemeanor offenses, including driving under the influence (DUI). 

Expanded Misdemeanor Diversion Under AB 3234

Assemblymember Phil Ting of San Francisco introduced Assembly Bill 3234, “giving judges the discretion to place first-time misdemeanor offenders in a diversion program.” The bill was based on a pilot program in Los Angeles County, which cut court costs and resulted in lower rates of recidivism compared to those who were prosecuted.

According to the language of the bill, judges in superior court would be authorized to offer misdemeanor diversion to a defendant, even over the objection of a prosecuting attorney. At the end of the diversion program, if the defendant complies with all the required terms, the judge would dismiss the charges and it would be as if the arrest had never occurred. 

There are only a few offenses that would not be eligible for misdemeanor diversion, including: 

• Any offense for which a person would require the defendant to register as a sex offender.
• Domestic violence under PC 273.5.
• Battery under PC 243.
• Stalking under PC 646.9.

Diversion for DUI Arrests in the East Bay

Most California misdemeanors would be eligible for diversion, including first-time DUIs, drug DUIs, drug possession, and shoplifting. The diversion period would have terms, conditions, and programs based on the defendant's specific situation, as determined by the judge. Diversion could be for a period not to exceed 24 months.

The requirements of the program would be determined by a judge, based on the individual situation. For example, a first-time drug and alcohol DUI arrest could have conditions like: 

• Substance abuse treatment
• Payment of restitution
• DUI and alcohol education
• Random urine testing
• Community services 
• Attend a MADD drunk driver victim panel

Second DUI Offense and Diversion

Diversion may not be available for a second or third DUI. However, if the driver has their first DUI charges dismissed, a later DUI would not count as a 2nd DUI but only as a 1st-time DUI, with generally lesser charges and penalties. The prior DUI that was dismissed under the diversion program may not be considered a priorable offense. 

Will the Court Grant Diversion in My DUI Case?

Diversion may be an option for judges but that does not mean they are required to offer it to anyone, even a first-time offender. It may still be up to the judge to decide whether diversion is appropriate in each case. Each individual judge may also handle DUI cases differently. Some judges are known to be more strict about driving offenses involving drugs or alcohol. If you have questions about the specific judge in your case, talk to your East Bay DUI defense lawyer. 

Help After an East Bay DUI Arrest

This new diversion law just went into effect on January 1, 2021. It may be too early to say what kind of effect this may have on first-time drunk driving arrests in Alameda and Contra Costa Counties. 

If you were arrested for a DUI or other misdemeanor offense in the East Bay, contact the local criminal defense lawyer who understands that you do not have to be left with a criminal record just because you were arrested.