MISDEMEANOR DIVERSION (PENAL CODE 1001.95)

What is Misdemeanor Diversion?

California recently passed a new law that could allow the court to divert (and ultimately dismiss) your case rather than proceed with the criminal prosecution.

If the judge grants diversion in your case, the criminal prosecution is essentially put “on hold.”  You would be required to comply with whatever terms the judge decides is appropriate for whatever length of time (up to two years) the judge determines is appropriate. If you do everything the judge says, then at the end of your diversion, your case will be dismissed.  If, at any time during the period of diversion, the judge thinks you are not complying with the terms, the judge will schedule a hearing to determine whether diversion should be terminated.  If diversion is terminated, the criminal prosecution picks up where it was before it was put “on hold.”

Previously, diversion was only an option in limited circumstances. However, a new California law vastly expanded opportunities for diversion.

As of January 1, 2021, Penal Code Section 1001.95 allows a judge to grant diversion in most misdemeanor cases. The judge can do so, even if the prosecutor objects. This diversion applies to almost all misdemeanor charges. There are specified crimes to which this program does not apply (domestic violence, stalking, registrable sex offenses, etc.). Misdemeanor driving under the influence cases are eligible to be considered for diversion.  

How do I get my case into Misdemeanor Diversion?

Misdemeanor Diversion is not automatic. We will need to make a formal written motion on your behalf, asking the judge to grant diversion. We will also have to schedule a hearing with the judge in order to argue on your behalf. 

If you are interested in this option, we will need to discuss this with you further. You will need to fill out a questionnaire that gives us more information that we can use to convince the judge. Essentially, we need to be able to tell the judge why your case is special and why you deserve Misdemeanor Diversion.

What are the chances that the judge will grant the motion in my case? How does the judge decide?

Unfortunately, the law is very vague at this point. There is no clear standard for the judge to use to determine whether a person should be granted Misdemeanor Diversion or not. We anticipate that judges will be very selective about the cases that get Misdemeanor Diversion. This means that there is probably a low chance of success unless you have some compelling reason to grant diversion.

There has been some debate about whether DUI cases are eligible for diversion. We believe that DUI cases are eligible under the new law. However, even if DUI cases are technically eligible, we anticipate that most judges will be reluctant to grant diversion in DUI cases.

Ultimately, the law leaves this decision completely up to the judge. We can make our best argument for you, but the decision is in the hands of the judge.

How long does Misdemeanor Diversion last? What are the terms of Misdemeanor Diversion?

The length of Misdemeanor Diversion can be up to 24 months. The exact length in your case will be up to the judge to decide.

The terms of Misdemeanor Diversion are completely up to the judge to decide. The judge could order you to do almost anything the judge thinks is appropriate as part of your diversion. We anticipate that if the judge grants you diversion, that the terms of your diversion may be more difficult than the actual punishment you would face if you plead guilty – but, you will avoid having a criminal record for this offence if you succeed.

For example, the judge could order you to do any or all the following:

• undergo treatment and/or therapy;
• community service;
• educational courses;
• attend self-help (AA/NA) meetings;
• submit to drug/alcohol testing (including possibly wearing an alcohol-monitoring ankle bracelet);
• pay restitution; and/or
• almost anything else the judge believes to be appropriate in your case.

Certainly, if you are granted diversion, you would be required to obey all laws. This means that if you pick up any new case (including possibly traffic tickets), your diversion would likely be terminated.

If you are granted diversion, then the judge would likely order you to appear in court at regular intervals to attend “review” hearings to make sure you are on track. This could be as often as once a month.

What are the potential downsides to filing this motion?

As discussed above, the actual terms of your diversion could be more difficult than the punishment for pleading guilty. You will also probably be ordered to attend court several times during the period of diversion.

It is also possible that the prosecutor could seek harsher penalties against you if you request diversion and the request is denied or if you are granted diversion but the judge later terminates diversion.   If the prosecutor is currently offering a favorable plea deal, it may not be in your interest to request diversion, particularly if the request is unlikely to be granted.  The decision whether to seek diversion must be made on a case-by-case basis.

A request for diversion will cause a delay in your criminal case being resolved.  In most cases, this will not be harmful to you.  Of course, the important benefit of successfully completing diversion is that the criminal charges against you are dismissed.  However, if your motion is denied by the judge or you fail diversion, then the criminal prosecution picks up where it left off.

What about the DMV?

If you were charged with driving under the influence of alcohol, you have an administrative case at DMV in addition to a criminal case at court.  Diversion has no impact on the DMV case.  You could still be facing a license suspension.   But if you are granted diversion and comply with the terms imposed by the judge, you will avoid criminal conviction.  That means: no jail sentence; no Work Alternative Program; no probation; no fines and fees; and no criminal conviction on your record.

Conclusion

Please note that this law is very new.  As written, the law provides little guidance on how Misdemeanor Diversion is supposed to operate. No one knows yet exactly how the judges will handle requests for diversion under the new laws.  Therefore, the answer to any remaining questions might be, “I don't know,” or, “We will have to try it to find out.”

Judges' decisions about diversion will likely be made on a case-by-case basis.  Please call us to discuss the details of your case at (831) 783-0222.

"Smart, hardworking, and a zealous advocate. Having Phillip Crawford on your side is the best thing you can do." – Lynn Gorelick, Attorney, Alameda County, Past President, California DUI Lawyers Association; Faculty Member, National College for DUI Defense