Diversion law sparks confusion

A new California law that allows judges to grant diversion to first-time misdemeanor DUI offenders has created a quagmire in the legal system, leaving criminal defense attorneys and prosecutors warring over its interpretation and judges conflicted over a lack of clarity.

One attorney described the law, introduced last year as Assembly Bill 3234 by Assemblyman Phil Ting (D-San Francisco) as the most litigated issue in the state since it took effect on Jan. 1. District attorneys in Riverside, Los Angeles and Sacramento counties have challenged it in their Superior Court appellate divisions.

Opponents argue that the new law, which falls under the state Penal Code, conflicts with an existing state Vehicle Code section that precludes judges from granting diversion to DUI offenders in lieu of criminal penalties.

At the judicial level, it has created glaring disparities in who is granted diversion — which allows for eventual dismissal of charges — and who isn’t, essentially based on which judge a defendant appears before and in which county the charges were filed.

‘Flapping in the wind’

Prosecutors, criminal defense attorneys and lawmakers have been seeking clarification from higher courts or new legislation to resolve the conflict.

“This is what is happening now. It’s like a wildfire going through the courts,” said Lara Gressley, a criminal defense attorney in Riverside specializing in DUI cases. In June, she petitioned the state Supreme Court to weigh in after a Los Angeles Superior Court judge denied her motion to grant diversion to a client.

The Supreme Court declined to review Gressley’s case, which she attributes to the absence of any lower court appellate rulings on the issue.

Gressley said the new law is vexing judges who are having a difficult time deciding which way to go.

“They’re continuing cases for months at a time in hopes there will be a court of appeal opinion,” Gressley said. “Everybody wants a court of appeal ruling, because that is binding across all courts in California. Now we’re left just flapping in the wind. It has to get figured out.”

In the courts

Since Ting’s legislation went into law, Superior Court judges have had discretion to grant diversion in misdemeanor DUI cases largely based on the severity of the offense, such as the defendant’s blood alcohol level, speed, where the offense occurred and whether any property was damaged.

DUI offenses that cause injury to another person are usually charged as felonies and do not quality for diversion under the law.

Prosecutors immediately began filing motions within their respective Superior Court appellate divisions maintaining that DUI offenders do not qualify for diversion due to Vehicle Code Section 23640. Some appellate division judges have sided with prosecutors, and others have not.

On July 27, a three-judge panel in Riverside Superior Court’s appellate division denied a motion by District Attorney Mike Hestrin, voting 2-1 that DUI defendants are, in fact, eligible for pretrial diversion under the new law. Hestrin and Senior Deputy District Attorney Chris Bouffard filed the motion after judges granted diversion to three defendants in separate DUI cases.

Two weeks prior — on July 14 in Los Angeles County Superior Court — appellate division judges unanimously ruled that DUI defendants do not qualify for diversion. They maintained that when the Legislature approved AB 3234, it was “silent on whether misdemeanor diversion can be granted in driving under influence cases,” and that the new law did not repeal the Vehicle Code provision.

In Orange County Superior Court, some appellate division panels have concluded that misdemeanor DUI offenses do not qualify for diversion, and others have declined to hear petitions that raise the issue, court spokesman Kostas Kalaitzidis said in an email.

Disparity in rulings

In her petition to the Supreme Court, Gressley said the lack of an appellate court decision on the conflict has resulted in a “vast disparity in rulings” by trial court judges across the state.

“The lack of guidance on the questions has resulted in inconsistent rulings throughout the state,” Gressley said in her petition.

She cited 11 DUI cases from eight Superior Courts across the state, including Riverside, Orange and Los Angeles counties, in which five defendants were granted diversion and five were denied. In the 11th case, a judge said further review was necessary.

More getting diversion

In Riverside County, more than dozen DUI defendants have been granted diversion since the new law took effect, said Deputy Public Defender Souley Diallo. Some judges, however, are still reluctant to grant diversion even after the favorable appellate division ruling on July 27.

Orange County Public Defender Martin Schwarz said misdemeanor DUI convictions are unique in that they carry large mandatory fines. While perhaps not consequential to people of means, they do have a dramatic effect on those his office tends to defend the most: the poor.

While Schwarz would not comment on how many DUI defendants have been granted diversion so far, he said the majority of requests have been denied.

While he could not provide specific numbers, San Bernardino County Deputy Public Defender Geoff Canty said he’s only seen “about a handful” of DUI offenders granted diversion since January. He embraces the new law.

“It follows the trends that we are seeing in California, giving a variety of access to services and treating underlying causes that bring people into our criminal justice system,” he said. “It is far more beneficial than being punitive.”

San Bernardino County District Attorney Jason Anderson disagrees. Due to the high recidivism rate of DUI offenders and the public safety risk they impose, he said, making a first-time conviction stick is crucial to deter a second instance. Diversion, he argues, amounts to “giving people a pass on a firsttime DUI.”

M.A.D.D. reacts

Patricia Rillera, California state executive director for Mothers Against Drunk Driving, said AB 3234 not only gives DUI offenders a free pass, but undoes a lot of what her organization has achieved in its more than 40 years of existence.

“From our perspective, it undermines the seriousness of the offense and the progress that’s been made over the years to reduce DUIs and DUI-related deaths,” Rillera said.

She said drivers under the influence kill more than 1,000 victims a year in California and more than 10,000 nationally, and she said she sees the same repeat DUI offenders showing up for courtordered classes over and over again.

But some question the punitive nature of California’s DUI laws, and whether they are really that effective in deterring offenders from repeating past mistakes.

During a Senate Public Safety Committee hearing in July, Sen. Nancy Skinner said that while prosecution of DUI offenses has become more and more punitive over the years, there has been only a 4% drop in DUI incidents in the last 22 years.

“I’ve not yet seen any kind of study that shows that the diversions are less effective in terms of the reduction of DUIs,” Skinner said. “We’d obviously need more data to fully understand it, but there’s some indication that some of the diversion programs are more effective.”

Legislative action

Legislatively, bills have been offered to clarify or tighten Ting’s bill.

SB 421, introduced by Sen. Steven Bradford, DGardena, would limit diversion to those who have no prior convictions for driving under the influence and have not completed diversion for DUI within the past 10 years. For those who are granted diversion, the bill would require the defendant to install an ignition interlock device and participate in education and counseling programs.

Two key Senate committees have signed off on Bradford’s bill.

Another bill, AB 282 by Assemblyman Tom Lackey, was designed to exclude DUIs under Ting’s diversion law. The bill was rejected by a Senate committee in July, however.

Lackey said he would bring up the legislation against in the next session. For him, the fight is personal. As a retired CHP officer who worked 28 years in L.A. County, he saw dozens of accidents caused by DUI drivers, and notified more than 40 families that their loved ones had died in DUI-related accidents.

“I personally made over 1,000 (DUI) arrests. I have literally seen hundreds of tragedies associated with impaired driving, and it’s all preventable, and that’s the big tragedy,” Lackey said.

Change of heart

When Gov. Gavin Newsom signed Ting’s bill into law on Sept. 30, 2020, he expressed reservations about DUIs being among the qualifying offenses.

“I am concerned that the crime of driving under the influence was not excluded from the misdemeanor diversion program. I will seek to expeditiously remedy this issue with the Legislature in the next legislative session,” he said at the time.

The unintended consequences of the law and its ripple effects across the state in the past nine months has prompted Ting to have a change of heart.

When Lackey’s AB 282 went before the Assembly on May 27, he was among more than 60 Assembly members who voted yes on it. The bill passed, with only nine Assembly members voting no. However, it was rejected two months later when it got to the Senate Public Safety Committee.

Ting said that when his bill was moving through the legislative process, the primary concerns raised over which offenses would be eligible for diversion were related to domestic violence and sexual assault. DUI offenses did not come up during discussions, he said in an email.

He said he was primarily concerned about harsh treatment for first-time DUI offenders and a “onesize-fits-all approach to our criminal justice system that hasn’t worked.”

But now he’d like to remedy the law’s flaws.

“The legislative process allows for debate and compromise. That doesn’t end just because a law took effect,” Ting said. “I’m always willing to listen. But one lawmaker doesn’t have the power to make changes. It takes a majority of both houses and approval from a governor to make it happen.”