SANTA ANA, Calif. – Driving under the influence (DUI) defendants across California remain categorically ineligible for diversion following a decision by the California Supreme Court to deny review of a District Court of Appeal published opinion rejecting an Orange County DUI defendant’s appeal.

In December, the Court of Appeal, Fourth Appellate District, Division Three published a unanimous decision that agreed with Orange County District Attorney Todd Spitzer that driving under the influence (DUI) defendants are not eligible for misdemeanor diversion under newly enacted Penal Code section 1001.95 because existing law already specifically prohibits granting diversion to DUI defendants, pursuant to Vehicle Code section 23640.

“Our roads – and our residents – are safer as a result of the Orange County District Attorney’s unwavering position that drunk and drugged drivers must be held accountable,” said Orange County District Attorney Todd Spitzer. “We are doing everything we can to prevent first-time offenders from becoming repeat offenders and when first-time offenders become repeat offenders we have to have the laws on the books to be able to hold them responsible. I am not going to be put in a position where I am forced to let a repeat drunk driver not have to face additional consequences and a family whose entire lives have been devastated by the loss of a loved one not be able to get the justice they deserve. I am incredibly proud of the dedicated prosecutors and investigators in my office who continue to combat the epidemic of drugged and drunk driving and prevent more innocent lives from being lost.”

This is the first published opinion by the Court of Appeal on the issue in the state and clarifies the limits of Penal Code section 1001.95, which gave judges broad discretion to grant diversion to misdemeanor defendants with very few exceptions. Defendants charged with driving under the influence were not specifically prohibited from a grant of diversion under the new law.

For that reason, the Orange County District Attorney’s Office along with the California District Attorneys Association (CDAA) and Mothers Against Drunk Driving (MADD) fought vigorously to defeat AB 3234 (Ting). Despite those efforts, Governor Gavin Newsom signed the bill into law, which went into effect as Penal Code section 1001.95 on January 1, 2021.

In his September 30, 2020 signing statement for AB 3234, Governor Newsom wrote that he was concerned that DUIs were not excluded from diversion eligibility by the new law and promised to expeditiously remedy the issue in the next Legislative session.

To date, it has not been remedied by the Legislature.

Misdemeanor DUI defendants immediately began filing petitions for diversion under the new law. Among those was Nancy Grassi, who was charged by the Orange County District Attorney’s Office with driving under the influence of drugs in 2019.

In February 2021, Grassi filed a motion for misdemeanor diversion under the new misdemeanor diversion law. Her request was denied after Orange County prosecutors argued Vehicle Code section 23640, which was enacted in 1998, already prohibits driving under the influence defendants from receiving diversion. Grassi sought review in the Court of Appeal.

Presiding Justice Kathleen E. O’Leary of the Court of Appeal, Fourth Appellate District, Division Three, wrote the unanimous published opinion in Grassi v. The Superior Court of Orange County, affirming that driving under the influence defendants are not eligible for court-initiated misdemeanor diversion pursuant to Penal Code section 1001.95 because Vehicle Code section 23640’s specific language – which prohibits diversion for any DUI defendant under any circumstances – still applies.

A copy of the published DCA opinion in Grassi v. The Superior Court of Orange County can be found here: https://www.courts.ca.gov/opinions/documents/G060362.PDF

Deputy District Attorney George Turner of the Writs & Appeals Unit argued this case.