PC 1001.36 Mental Health Diversion and DUI in California

Penal Code 1001.36 is California's mental health diversion law. For the right defendant it is one of the best outcomes the system offers: treatment instead of prosecution, and a dismissal at the end. I am Joel Brand, and I want to be direct with you about the part that matters most if you are facing a DUI. In a California DUI case, mental health diversion is not available.

That is not a close question or a matter of finding the right judge. It is settled law, and I would rather you hear it from me now than after paying someone to file a motion that cannot succeed.

What mental health diversion does

For the cases where it applies, Penal Code 1001.36 lets a court pause the criminal proceedings and place an eligible defendant into a treatment program. If the person completes the program successfully, the charges are dismissed and the arrest is generally treated as though it never occurred.

Eligibility is not automatic. The court has to be satisfied that the person suffers from a qualifying mental disorder, that the disorder was a significant factor in the commission of the charged offense, that a mental health expert believes the person would respond to treatment, and that the person does not pose an unreasonable risk to public safety if treated in the community. Certain serious offenses are excluded by statute.

Why it does not reach a DUI

Vehicle Code 23640 is the obstacle, and it is a categorical one. It says that when a person is charged under Section 23152 or 23153, the court "shall neither suspend nor stay the proceedings" so the person can attend a treatment program, and shall not dismiss because the person attended one. That language does not give a judge discretion to weigh. It removes the option.

Defendants argued that the later mental health diversion statute overrode the older bar. The Courts of Appeal rejected that. In Tellez v. Superior Court (2020) 56 Cal.App.5th 439 and Moore v. Superior Court (2020) 58 Cal.App.5th 561, the courts examined the legislative history of sections 1001.36 and 1001.80 and concluded the Legislature never intended DUI defendants to be eligible. The reasoning is hard to argue with. If mental health diversion already covered DUI, the Legislature would not have needed to write a separate carve out for service members.

In 2025 the Second District went further in People v. Garcia, reading the phrase "in any case" to mean the entire proceeding rather than the individual count. If a DUI charge is in your case, the non-DUI counts arising from the same incident are pulled under the bar along with it.

I have seen this described elsewhere as a question that varies by county, or as something courts are merely "skeptical" about. That is not an accurate picture of where the law sits. The full statutory background is in my article on whether you can get diversion for a DUI in California.

The one route that does work

There is a single exception, and it is not this statute. Penal Code 1001.80 creates pretrial diversion for current and former members of the United States military whose offense connects to service-related trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems. Subdivision (n) states that notwithstanding any other law, including Vehicle Code 23640, a misdemeanor DUI may be diverted under that section. Felony DUI may not.

If you served, that door is genuinely open, and it is underused. I walk through eligibility, the treatment obligation, and what the court will want to see in the guide to military diversion after a DUI.

A mental health condition still matters in your case

Losing the diversion route does not make your diagnosis irrelevant. It changes where it does its work.

A documented condition can shape the negotiation. Where depression, anxiety, post-traumatic stress, or bipolar disorder genuinely contributed to what happened, and where you are already in treatment and can prove it, that is a real argument for a reduced charge or a lighter sentencing posture. It is the same category of evidence that would have supported a diversion request, used at a different stage. The pages on alternative sentencing options and mitigation before sentencing cover how that gets built.

The evidence still has to be real. A letter saying you have been anxious will not move anyone. What carries weight is a qualified evaluation, a diagnosis, a treatment plan you are actually complying with, and a clear account of how the condition connects to the night in question.

Diversion is not the same as competence

It is worth separating two things that get confused. Diversion under 1001.36 is about resolving a case through treatment. Competence under Penal Code 1368 is about whether a defendant can presently understand the proceedings and assist counsel. They address different problems at different points, and 1368 is not blocked by Vehicle Code 23640, because it is not a diversion mechanism at all. If a client genuinely cannot participate in their own defense, that inquiry is available regardless of the charge.

The DMV runs on its own track

One more thing worth knowing, because it is true no matter which path your case takes. A DUI arrest starts two separate proceedings. There is the criminal case, and there is an administrative case at the Department of Motor Vehicles that decides whether you keep your license. Even where diversion is granted under the military statute, the DMV keeps its own authority over the license.

The deadline there is short. You have ten days from the date of arrest to request the hearing, and missing it costs you the chance to contest the suspension at all. The page on how the DMV hearing works explains what happens next.

Where that leaves you

If a mental health condition played a real part in your arrest, the honest plan is not a diversion motion. It is a full defense to the charge, which means examining the stop, the observations, the testing, and the chain of custody, combined with treatment you begin now and mitigation built on documented evidence. That is what actually changes outcomes in these cases. Start with the DUI defenses guide for how the charge itself gets challenged.

Tell me what happened

If you were arrested for a DUI in California and a mental health condition is part of the picture, tell me about it using the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.