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Judicial Diversion for DUI? Fourth District Says No

While our office is located within the Second Appellate District, we do handle DUI cases in Orange County, Riverside County and San Bernardino County quite often.  So, the recent ruling in Nancy Grassi v. The Superior Court of Orange County, wherein the Fourth Appellate District ruled that Vehicle Code § 23640 controls, making DUI is ineligible for judicial diversion, is terrible. 
Brief Synopsis: Judicial diversion for a DUI case is not allowed, according to the Fourth Appellate District (covering Orange, San Bernardino and Riverside Counties).  According to the appellate court, the ban on diversion for a DUI stated in Vehicle Code § 23640 bars judicial diversion in a DUI case.           
The strongest reason that 23640 was given applicability was the Fourth Appellate District’s interpretation of recent California Supreme Court holdings that a court should not impliedly repeal a statute.

Moreover, we fear that the Second Appellate District will henceforth regard the Fourth Appellate District ruling as persuasive authority to similarly deny judicial diversion on any DUI within its circuit.

Nonetheless, we think it is important to understand how weakly the Fourth Appellate District reached this ruling.

Indeed, the responsible reader must acknowledge the conclusion offered by the appellate court:

“In dissent about 32 years ago, Justice Johnson concluded with the following: ‘There is a tendency among appellate judges in writing their opinions, and I am as guilty of this as any other, to discuss tough cases as if they were easy, to characterize debatable answers as being obvious, and to write up razor thin cases as if a vast chasm separates the correct from the incorrect result.  We may spend days in the quiet of our chambers trying to formulate our individual positions on a close question, then hours arguing among ourselves, and along the way shift our views to and fro several times.  Yet when we finally get around to writing the opinion, we inform the reader it was a piece of cake.  Logic, precedent and principle all pointed in a single direction and the result we reached was inevitable.

“Well, in all candor I do not regard the instant case as easy, the answer obvious, or the result inevitable.  If nothing else, I hope the dissent exposes the depth of our problem.  This time the Legislature has handed us a true conundrum.”  People v. Weatherill (1989) 215 Cal. App. 3d 1569, at 1588-1589 [considering 23202, which was renumbered 23640 in 1998 without substantive change, as applicable to developmentally disabled persons].

“The Legislature again, in the identical setting, albeit a different diversion statute, handed the courts another diversion conundrum.

“Justice Johnson’s candid observation that his and the majority’s opposing viewpoints were both persuasive applies equally in this case.  The panel members here can surely imagine writing this opinion the other way, to conclude misdemeanor DUI defendants are eligible for diversion, based on say section 1001.95’s plain language (DUI’s are not expressly excluded), or the canons of statutory construction, the expression of some things means the exclusion of others [expressio unius est exclusio alterius] (section 1001.95, subdivision (e), provides exclusions but again DUI’s are not expressly excluded) or later enacted statutes supersede earlier statutes (the Legislature enacted section 1001.95 in 2020 and Vehicle Code section 23640 in 1998).  But as we explain above, we follow our Supreme Court’s teachings and harmonize the statutes to avoid an implied repeal. 

“We invite, indeed we implore, the Legislature to resolve yet another entirely avoidable diversion conundrum.”

With this conclusion, the Fourth Appellate District eloquently described its struggle and its apparent reluctance to rule as it did, knowing that it was facing a legal “Hobson’s Choice.”

While the conclusion also lays bare many of the reasons why the court could have ruled that judicial diversion includes DUI, it did not include all the reasons. 

The additional reasons that we believe merit mention include the following:
  1. Orange County District Attorney stated in the Orange County Register that misdemeanor DUI is eligible for judicial diversion (footnote 11);
  2. Two legislative bills subsequently attempted to address DUI in Section 1001.95.  Assembly Bill No. 282 made misdemeanor DUI ineligible.  In July 2021, the Senate Public Safety Committee voted against the bill but granted reconsideration.  Senate Bill 421 made misdemeanor DUI eligible under specified conditions (i.e., not injury involved, no high BAC).  In April and May 2021, two Senate subcommittees approved this bill.  To date, the Legislature has not amended 1001.95;
  3. On September 30, 2020, when Gavin Newsom signed AB 3234 into law, creating misdemeanor judicial diversion, he stated his concern that DUI was not excluded from the program.  He pledged to remedy this in the next Legislative session, but did not do so; and.
  4. In People v. Superior Court (Diaz-Armstrong) (2021) 67 Cal. App. 5th Supp. 10, 13, 21, the majority of the Riverside County Superior Court Appellate Division held that misdemeanor DUI defendants were eligible for diversion.
The citation for the Fourth Appellate District Court ruling discussed above is Nancy Grassi v. Superior Court of Orange County (4th App. Dist., 2021) 73 Cal. App. 5th 283, 288 Cal. Rptr. 3d 385.

For more information about judicial, military and mental health diversion, please click on the following articles:
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