Reaffirming one of its previous decisions from earlier this year, California’s Fourth District Court of Appeal held Friday that a 2018 change in law governing criminal defendants’ eligibility for pretrial mental health diversion doesn’t apply to people charged with DUIs.

Under Vehicle Code section 23640, DUI defendants in California are categorically ineligible for any form of pretrial diversion. In 2018, the state Legislature enacted Penal Code section 1001.36, which made qualifying misdemeanor and felony defendants generally eligible for a pretrial mental health diversion, except for people charged with murder and other serious offenses.

The petitioner in this case, David Moore, was charged with a felony complaint of driving under the influence of alcohol after a 2018 crash that injured three occupants of the other vehicle. Moore argued that even though the Vehicle Code renders DUI defendants ineligible for pretrial diversion, he should be eligible for pretrial mental health diversion under the 2018 change to the Penal Code.

Rejecting Moore’s petition for a writ of mandate, the Fourth District held that the legislative history of Penal Code section 1001.36 shows the Legislature didn’t intend to make DUI defendants eligible for pretrial mental health diversion, even if DUIs aren’t among the specified offenses the statute makes ineligible.

In so holding, the court followed its reasoning in Tellez v. Superior Court (2020) 56 Cal.App.5th 439. In that decision, the court pointed to a 2017 amendment to the statute governing pretrial diversion for current and former U.S. military service members suffering from mental health afflictions (Pen. Code, § 1001.80). The amendment clarified that military members charged with misdemeanor DUI offenses are eligible for that form of diversion.

Penal Code section 1001.36, the court noted, was enacted during the same legislative session as the amendment to section 1001.80. The Legislature’s failure to add a similar amendment to section 1001.36, the court reasoned in this case, “strongly indicates that the Legislature did not intend to impliedly repeal Vehicle Code section 23640 insofar as it operates to bar DUI defendants from eligibility for pretrial mental health diversion.”

If the Legislature had intended DUI defendants to be eligible for the diversion, the court held, it would have repealed or amended the Vehicle Code statute or carved out an exception in Penal Code section 1001.36.

The court also held that public policy considerations don’t favor making DUI defendants eligible, writing that it’s the Legislature’s job to strike a balance between protecting public safety and mitigating the entry into the criminal justice system of people with mental disorders. “The Legislature has struck this balance by declining to make DUI defendants eligible for pretrial mental health diversion,” the court held.

Counsel for the parties could not be immediately reached for comment.

The case is Moore v. Superior Court, case number E074429, in the Fourth District Court of Appeal for the state of California.

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