The short answer: In most cases, no. DUI charges are generally not eligible for judicial diversion in California.

However, the issue became legally complicated after a 2021 law created confusion between two statutes. While some early cases allowed DUI diversion, appellate courts have now largely ruled against it.

If you are facing a DUI, understanding how these laws interact is critical.

Your best hope for a favorable outcome is with a highly experienced criminal defense attorney at the Hedding Law Firm in Los Angeles. To schedule a consultation, call (866) 986-2092 or use the contact form here.

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What Is Diversion in California?

A diversion program allows a defendant to:

• Avoid a criminal conviction

• Complete court-ordered conditions (counseling, classes, community service)

• Have the case dismissed upon successful completion

Diversion removes you from the traditional prosecution process. If completed successfully, the case is dismissed. If you fail, prosecution resumes.

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Why DUI Diversion Became Controversial

Two statutes created confusion:

1️⃣ Judicial Diversion Law (2021)

California Penal Code 1001.95 allows judges to grant diversion for most misdemeanors — even over a prosecutor's objection.

It excludes only certain crimes:

• Sex offenses requiring registration

• Domestic battery

• Corporal injury to a spouse

• Stalking

Notably, DUI was not listed as excluded.

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2️⃣ Older DUI Statute

California Vehicle Code 23640 specifically prohibits courts from suspending or dismissing DUI cases for participation in treatment programs before conviction.

This statute directly addresses DUI cases.

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Which Law Controls?

California appellate courts have ruled that Vehicle Code 23640 controls, meaning DUI cases are not eligible for judicial diversion.

Key cases include:

• Grassi v. Superior Court

• Tan v. Superior Court

• People v. Superior Court (Ortiz)

In these cases, courts held that:

• The more specific DUI statute (VC 23640) overrides the general misdemeanor diversion statute (PC 1001.95).

• The legislature did not explicitly repeal VC 23640.

• Therefore, DUI diversion is not permitted.

The California Supreme Court declined review, leaving those rulings in place.

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Current Legal Reality (2024)

Under existing case law:

• Misdemeanor DUIs are not eligible for judicial diversion.

• Judges generally cannot dismiss DUI charges under PC 1001.95.

• Prosecutors routinely object, and courts side with them.

While some trial courts initially granted diversion, appellate rulings have significantly limited that possibility.

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Are There Any Exceptions?

There may be limited circumstances involving:

• Military or veteran diversion statutes

• Alternative sentencing programs

• Negotiated reductions (e.g., reckless driving “wet reckless”)

Each case is highly fact-specific.

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What About Penal Code 17.2?

California Penal Code 17.2 expresses legislative intent to use the least restrictive means available.

However, it does not override statutes that specifically prohibit diversion for certain crimes. If a case is ineligible, PC 17.2 does not create eligibility.

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Why Courts Rejected DUI Diversion

Courts relied on two key principles:

1. Specific statute controls over general statute.
   Vehicle Code 23640 specifically addresses DUI.

2. No express repeal.
   The legislature did not state that PC 1001.95 overrides DUI prohibitions.

Because of this, DUI remains excluded from judicial diversion.

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What Should You Do If Facing a DUI?

Even if diversion is unavailable, strong defense strategies may include:

• Challenging illegal traffic stops

• Suppressing unlawfully obtained evidence

• Contesting breath or blood test accuracy

• Negotiating reduced charges

• Seeking alternative sentencing

Every DUI case depends heavily on procedure, evidence handling, and constitutional compliance.

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Frequently Asked Questions

Can a DUI be dismissed through diversion in California?

Generally no. Courts have ruled that DUI is excluded from judicial diversion under Vehicle Code 23640.

Why was there confusion about DUI diversion?

Penal Code 1001.95 allows diversion for most misdemeanors but did not list DUI as excluded. Courts ruled the older DUI statute still controls.

Has the California Supreme Court ruled?

The Supreme Court declined review of appellate cases rejecting DUI diversion, leaving those decisions intact.

Is misdemeanor DUI treated differently than felony DUI?

Both are generally ineligible for diversion under current law.

Are there alternatives to diversion?

Yes. Plea negotiations, reduced charges, suppression motions, and alternative sentencing may be available.

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The Importance of an Experienced DUI Defense Attorney

Although diversion is unlikely, that does not mean your case is hopeless.

An experienced DUI defense attorney will:

• Examine whether the stop was lawful

• Analyze breath and blood testing procedures

• Review police body cam footage

• Identify procedural violations

• Negotiate aggressively

Many DUI cases are reduced or resolved favorably due to evidentiary weaknesses.

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Speak With a Los Angeles DUI Defense Attorney

If you are facing DUI charges in Los Angeles or anywhere in California, early legal intervention is critical.

At Hedding Law Firm, we analyze every aspect of your case and pursue the strongest possible defense strategy.

📞 Call (866) 986-2092 for a confidential consultation.

Your future and driving privileges are too important to leave to chance.