People ask me some version of this question almost every week. There is no record, it was a first offense, nobody was hurt, and there is a real underlying problem that treatment would actually address. Is there a program to complete that makes the case go away?
In California the answer is almost always no, and the reason is one sentence of the Vehicle Code. I am Joel Brand, and here is what the law actually says, what the one exception is, and why the line sits where it does.
What Vehicle Code 23640 says
Section 23640(a) provides that when a person is charged with a violation of Section 23152 or 23153, "prior to acquittal or conviction, the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs."
That language is doing a lot of work. It does not merely say a judge may decline to divert a DUI. It says the court cannot pause the case for that purpose and cannot dismiss because the person went to a program during the pause. It removes the option rather than leaving it to discretion.
Now read subdivision (b), which almost nobody quotes. It says the section does not apply to programs entered after conviction and sentencing, including as a condition of probation.
So California is not skeptical of treatment. Treatment is standard in DUI sentencing, and counties run DUI courts and other collaborative courts built entirely around supervised treatment. The state's position is narrower than it first looks. Treatment cannot substitute for the conviction. Get help after you are convicted, not instead of being convicted.
The one exception: military diversion
There is a real carve out, and it is the only one.
Penal Code section 1001.80 creates pretrial diversion for current and former members of the United States military whose offense is connected to sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems resulting from service. Subdivision (n) says that notwithstanding any other law, "including Section 23640 of the Vehicle Code," a misdemeanor DUI can be diverted under that section. A felony DUI cannot.
That language did not appear by accident. Courts had gone the other way, and the Legislature amended the statute to say plainly that misdemeanor DUI is included. It has been in place since 2017. I go through how the program works, who qualifies, and what the treatment obligation looks like in the guide to military diversion after a DUI.
Why every other route has failed
Defendants have tried the other diversion statutes, and 23640 has stopped all of them.
Misdemeanor diversion under Penal Code 1001.95. AB 3234 took effect in 2021 and gave judges broad discretion to divert misdemeanors. Its list of disqualifying offenses names domestic battery, stalking, and a handful of others. It does not name DUI. Defendants argued that the omission had to mean something. The Courts of Appeal disagreed and harmonized the statutes the other way, holding that the specific bar in 23640 survives the later general grant. Grassi v. Superior Court (2021) 73 Cal.App.5th 283 and Tan v. Appellate Division of Superior Court (2022) 76 Cal.App.5th 130 both came out that way, and other districts followed.
Mental health diversion under Penal Code 1001.36. Same result, and it arrived earlier. Tellez v. Superior Court (2020) 56 Cal.App.5th 439 and Moore v. Superior Court (2020) 58 Cal.App.5th 561 both held, based on the legislative history of sections 1001.36 and 1001.80, that the Legislature did not intend DUI defendants to be eligible. If the Legislature had thought mental health diversion already covered DUI, it would not have needed to write the military carve out.
In 2025 the Second District went further in People v. Garcia, reading "in any case" to mean the entire proceeding rather than the individual count. If a DUI charge is in the case, non-DUI counts arising from the same course of conduct are pulled under the bar along with it.
The practical takeaway is blunt. If you are charged with a DUI in California and you are not a veteran or service member, pretrial diversion is not on the table, whatever your diagnosis and whatever your record looks like. Anyone telling you otherwise is describing the law as it was argued, not as it was decided. What is available is a different set of tools: challenging the stop and the testing, negotiating the charge, and building genuine mitigation before sentencing. Those are covered in the DUI defenses guide and the page on alternative sentencing options.
Diversion would not stop the DMV
This is the piece most people miss, and it matters for understanding why the bar accomplishes less than it appears to.
A DUI arrest starts two separate proceedings. There is the criminal case in court, and there is an administrative case at the Department of Motor Vehicles that decides whether you keep your license. The DMV case is not the court's to give away. Penal Code 1001.80 says as much even for military diversion: the DMV keeps its own authority over the license regardless of what happens with the charge.
So the picture of a diverted DUI defendant walking away with nothing is not accurate. That person still faces the administrative suspension, still faces the interlock requirement, and still has the arrest counting as a prior for ten years if there is a next time. If you are in this position right now, the deadline that matters is the DMV one. You have ten days from the date of arrest to request the hearing, and the page on how the DMV hearing works walks through what happens next.
Should California allow more?
That is a policy question rather than a legal one, and reasonable people land in different places. Here is where I land.
Consider what the military carve out concedes. If pretrial diversion for DUI were flatly incompatible with public safety, you would not create a category of people who can receive it. The exception admits that for some defendants the conduct is driven by a treatable condition, and that treating the condition is the better answer.
Which leaves an awkward result. Take two defendants with documented post-traumatic stress disorder, the same first-offense facts, and the same test results. One served in the military and one did not. One is eligible for diversion and one is categorically barred. I understand the history behind veterans' courts and I think that history is a good one. But as a line drawn across DUI cases generally, service history is a fact about biography rather than about risk. Nothing in it predicts whether this person drives impaired again.
If California ever revisits this, the model worth looking at is not leniency. Washington's deferred prosecution statute requires a two-year certified treatment plan, total abstinence from alcohol and non-prescribed drugs, and regular attendance at recovery support meetings. The charge is not dismissed at the end of those two years. Dismissal comes years later, roughly five years from the original order, and it has historically been available once in a lifetime. That is a longer and harder road than a standard first-offense DUI sentence here. Plenty of people would look at it and choose the conviction instead, which is precisely the point. A diversion track that is more demanding than the sentence is not a loophole.
The objection to any of this is deterrence, and it deserves to be taken seriously rather than waved away. A DUI is not a status offense. There is a potential victim in every one of these cases, and people who have lost family members to impaired drivers have earned their skepticism of anything that ends in a dismissal. The honest response is not that the concern is misplaced. It is that in California the criminal conviction is not carrying the deterrent weight alone, because the license consequences arrive on their own schedule no matter what the criminal court does.
My own view is narrow. I am not arguing that DUI diversion should be open to everyone. High test results, injury cases, and repeat cases belong in the conventional system and I would not want it otherwise. What I would argue is that the current line was not drawn by weighing risk. It is a categorical bar written decades ago, plus one exception for one population, plus a run of appellate decisions resolving what the Legislature left ambiguous. A line drawn that way is worth revisiting on purpose.
Grassi, Tan, Tellez, Moore, and Garcia all pointed in the same direction on that score. If California wants DUI diversion, the Legislature has to say so directly. So far it has said so exactly once.
Talk through your options
If you were arrested for a DUI in California and you are trying to understand what is actually available in your case, tell me what happened using the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.