What Is Diversion For DUI In San Francisco?
In January of this year, the Governor of California approved Penal Code Section 1001.95 which allows for alternative sentencing, specifically diversion programs, for all misdemeanors (with the exception of sex offenses, domestic violence offenses, and stalking.)
In theory, misdemeanor DUIs are eligible for diversion sentencing. However, the diversion legislation grants individual trial courts the discretion to decide suitability after a particular offense has been determined to be eligible. This tends to make things more complicated. Every county court and judge throughout the state of California now has a different interpretation as to whether DUIs are eligible for misdemeanor diversion. Some courts hold that no DUIs are eligible, while others hold that some DUIs are eligible. In courts where there is possible eligibility, it is almost always decided on a case-by-case basis whether diversion will be offered as an option.
In San Francisco, the court has determined that first-time DUI offenses do qualify for misdemeanor diversion. However, the court has also ruled that DUIs that are second offenses, or where there’s a refusal, or where there are two separate pending DUI cases, may not be eligible for diversion.
In cases where a DUI does qualify for diversion in San Francisco, the standard term is as follows:
- A diversionary period of six months to two years
- Enrollment in a DUI class (whether it be 3, 6, 9 or even 18 months long)
- One month on a MADD Victim Impact Panel
- Community service (anywhere from 25 to 50 hours)
- No driving without a valid driver’s license, insurance or registration and no driving with alcohol in your blood
- Providing an admonition that if you continue to drive while under the influence and hurt somebody, you could be charged with murder.
Upon successful completion of diversion, the case is dismissed, and the arrest is removed from your record.
However, a DUI diversion does not eliminate the necessity of a DMV hearing. When you are arrested with a DUI, it triggers two separate processes: a criminal process, and a DMV process. While completing a diversion program may result in a dismissal of your case in criminal court, it will not automatically result in a dismissal of your case with DMV.
How Can I Get Diversion for a DUI in San Francisco?
The court in San Francisco has concluded that a charge of driving under the influence is eligible for misdemeanor diversion. The court will exercise its discretion and grant diversion when it deems a person is suitable for diversion on a case-by-case basis. In order to obtain diversion in San Francisco, a motion must be filed with the court and served on the district attorney.
It should be noted that the motion for diversion, the determination of eligibility for diversion in general and suitability is subject to the objection of the DA, and the further potential for the court to overrule the DA’s objection. However, in my experience, it is clear that the court does take statements from the DA or objections from the DA into serious consideration when making their ultimate determination on the matter. A qualified attorney will be able to present information to the court establishing that a person is in fact suitable for pretrial diversion.
The misdemeanor diversion statute was only put into practice at the beginning of this year, so it is still relatively new. However, so far, the DA in San Francisco has not typically objected to diversion for first offense misdemeanor DUIs. The DA is more likely to object in situations where there was a prior conviction or where the accused was involved in an accident and the person was arrested for driving under the influence while other charges were pending. An objection by the DA does not preclude a finding of suitability by the court.
Can I Get a First Time DUI Reduced to a Wet Reckless in San Francisco County?
Provided your blood alcohol level was low enough (that is, not that much higher than the legal limit), and there were no other aggravating factors (such as an accident, refusal of a BAC test, or a prior conviction), it is usually possible to have a first-time DUI reduced to a wet reckless charge in San Francisco.
What is the Neighborhood Court Being Used in San Francisco County for DUI Cases?
Neighborhood Court is a program that is unique to San Francisco. It was implemented by the San Francisco District Attorney almost a decade ago as a form of restorative justice designed to reduce congestion within the courts and create a community-driven solution to crime. There are currently 11 Neighborhood Courts in the city. Each Neighborhood Court is comprised of three members from the neighborhood that was affected by the conduct. Those three members of the court meet with the offender and offer a solution. If a person successfully completes the Neighborhood Court process—that is, if they successfully complete the terms laid out by the Neighborhood Court—the case will be dismissed. If they are unsuccessful, their case will be referred back to the District Attorney for prosecution.
A person who has opted to have his or her case resolved in Neighborhood Court rather than traditional court will have to appear before the relevant Neighborhood Court and discuss the conduct/incident in question. They must also make convincing assurances that they will not reoffend. The community members that comprise the Neighborhood Court will then determine a resolution or sentence, which might include AA meetings, victim impact panels, and community service. A DUI will be referred to Neighborhood Court prior to prosecution only if the blood alcohol level was low enough and there were no other aggravating factors.