Judicial Diversion Does Not Apply to Misdemeanor DUI.

On January 1, 2021, judicial diversion under Penal Code §§ 1001.95 to 1001.97 became available for defendants in almost all misdemeanors.  Under § 1001.95(e), three specified crimes are excluded: domestic violence (both Penal Code §§ 273.5(a) and 243(e)(1)), stalking (Penal Code § 646.9) and any misdemeanor offense that requires defendant, once convicted, to register as a sex offender under Penal Code § 290.

Greg Hill was aware of this new law becoming effective once the news broke that Gavin Newsom signed the law on September 30, 2020.  From that time, there was immediate focus on whether DUI would be eligible for judicial diversion, as it was eligible for diversion under military diversion (Penal Code § 1001.80), also called veteran’s diversion.

Our office filed one of, if not the first, motion for judicial diversion for a DUI case in the Long Beach Courthouse.  Addressing whether DUI was eligible, our motion argued that “[u]nder the doctrine of expresio unius est exclusio alterius, the expression of one thing in a statute ordinarily implies the exclusion of other things.”  Naidu v. Superior Court (2018) 20 Cal. App. 5th 300, 2007.  In other words, since Penal Code § 1001.95(e) identified three crimes as ineligible, this necessarily implied that all other crimes were eligible. 

This same argument, also call ejusdem generis (“application of the general term is restricted to those things that are similar to those which are enumerated specifically”) had been made in the context of what items are burglary tools, as Penal Code § 466 lists out over ten specific items that may be considered burglary tools, implying items not listed shall not be considered burglary tools.

Our motion for judicial diversion in Long Beach Superior Court, however, was denied.  The judge there explained that Vehicle Code § 23640 barred diversion for DUI, so judicial diversion could not apply to DUI.  Greg Hill argued that the judicial diversion statute impliedly repealed § 23640 by specifically excluding DUI from the list of ineligible offenses and moreover, the judge should follow the most recent of any statute that addresses the issue, not the older statute.  The Long Beach judge disagreed, saying there was no such thing as an implied repeal of a law, saying it must be explicit, and he had discretion anyways, so he would follow 23640, although it was an earlier statute.

Our office then was successful in having several motions for judicial diversion for DUI granted on similar arguments.

This honeymoon ended rather quickly however, by the summer of 2021 and we have not won one such motion since then.

It looks quite unlikely that this motion will be granted again, either.  The recent reported decision of People v. Jessica Ortiz, a Fourth Appellate District Court, seems to cement this trend. 

In July 2020, Ms. Ortiz was charged with misdemeanor DUI and in February 2021, she filed a motion for judicial diversion under Penal Code §§ 1001.95 to 1001.97.  The judge granted the motion and the People appealed to the superior court appellate division, consolidating Ortiz’ case with two other DUI cases wherein judicial diversion was also granted.  The appellate division denied the People’s writ of vacatur to vacate the rulings in a published ruling.  People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal. App. 5th Supp. 10, 24-28.

The People then appealed this ruling to the Fourth Appellate District Court and the California DUI Lawyers Association (CDLA) filed an amicus brief, joining Ortiz in arguing that the legislative history of § 1001.95 clearly shows the Legislature intended § 1001.95 to allow diversion for DUI charges.

The Fourth Appellate District looked closely at the legislative history of 1001.95 and determined there was no clear legislative intent to repeal 23640 and moreover, there is a general presumption against repeal by implication when there is a conflict between two statutes. 

The Fourth Appellate District then decided that Ortiz was ineligible for judicial diversion in her DUI.

We find this ruling thorough, but twisted and strained in an unnatural way.  We also certainly disagree with this ruling, as it implies in quite a few assumptions that fundamentally seems to exercise the same implication that the court says a judge should not engage in when interpreting a statute.

The citation for the Fourth Appellate District Court ruling discussed above is California v. Superior Court (Ortiz) (4th App. Dist., 2022) 81 Cal. App. 5th 851, 297 Cal. Rptr. 3d 517.

For more information about judicial diversion applying to DUI, please click on the following articles: