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Oct. 21, 2020

California’s new misdemeanor diversion law is fatally flawed

While Assembly Bill 3234 has been touted as a saving grace for first-time misdemeanor offenders who may be offered diversion by a judge over the objection of a prosecutor, the reality is much different.

Todd Spitzer

District Attorney, Orange County District Attorney's Office


Todd served in the Orange County district attorney's office for eight years, including two years as an assistant district attorney. He assumed the office of Orange County District Attorney in January 2019.

American democracy is designed around the sacred principle that the government is answerable to its citizens. This simple but important tenet ensures that the people have a voice in how they are governed.

Unfortunately, at the last hour of the legislative session, the people of California were robbed of their voice by a desperate gut and amend bill that not just threatens public safety, but threatens lives. And now it is state law.

While Assembly Bill 3234 has been touted as a saving grace for first-time misdemeanor offenders who may be offered diversion by a judge over the objection of a prosecutor, the reality is much different. The poorly written and poorly crafted law opens the door for repeat offenders, including multiple DUI drivers and child abusers, to be granted diversion — without providing any definitions or guidelines for accountability or rehabilitation.

There were no public hearings on the legislation. There was no public discussion. There was no ability for the victims of DUI drivers and the myriad other crimes to speak out about such a dangerous — and potentially deadly — bill. The original bill was gutted and replaced with misdemeanor diversion provisions that adopted none of the exemptions that were in place in the pilot program (which at least had some accountability measures) that this bill was supposedly based on.

That is not democracy. That is legislation that was passed through the back door without any public input.

Let me be clear, I support appropriate diversion. Diversion is an integral part of the criminal justice system. In many cases, diversion can sometimes prevent a first-time offender from becoming a habitual offender.

Reducing recidivism was one of the first issues I tackled after being sworn in as the district attorney of Orange County in January 2019. I established my Recidivism Reduction Unit which is designed to understand how first-time offenders become habitual offenders, so that we as prosecutors can intervene in the cycle to assist defendants to become productive members of society while also ensuring accountability and safeguards for our communities.

But diversion is not appropriate for all crimes — or all offenders. And each case must be specifically analyzed for appropriateness.

What are the practical applications?

Orange County is facing a crisis when it comes to drivers driving under the influence of drugs or alcohol or both. Driving under the influence of drugs is up 40% and felony driving under the influence filings are up 25% over last year. In just 60 days this summer, the Orange County district attorney’s office filed charges in nine fatal driving under the influence cases and many more remain under review. Many of the drivers had multiple misdemeanor convictions for driving under the influence, which allows my prosecutors to charge them with murder when they kill someone while driving under the influence (and we can prove prior knowledge of the dangerousness through express admonishments given by a judge generally after a prior conviction).

This law changes that. Once diversion is completed, it’s as if the crime never happened — and those prior convictions wash out, despite the fact that state law allows prior DUIs to be pled and proven for up to 10 years. They can’t be used as a prior — and the families whose lives were shattered by an impaired driver will not get the justice they deserve.

AB 3234 does not impose a limit on how many times someone can be given diversion. How many times are we going to give someone a break before they kill someone? And now if they do, we won’t be able to prosecute them as more serious crimes.

AB 3234 is literally allowing people to get away with murder.

Drunk and drugged driving is personal to me. My former chief of staff, Steve Ambriz, was killed by a drugged driver. When I was a member of the state Legislature, my own son was rear-ended by a drunk driver. Thankfully, he survived with just a few minor injuries, even though the car was totaled. Those moments not knowing if my son was seriously injured continues to drive my passion and concern as a father and district attorney.

Anyone who gets behind the wheel of a motor vehicle after taking drugs or drinking has the potential of killing someone. That someone could be your husband or wife, your father or mother or even your child.

Governor Gavin Newsom signed the bill into law — despite authoring a letter that he was so concerned that the bill did not exempt DUI drivers from the provision he plans to address it with urgency at the start of the next legislative session.

Given his grave concerns, Newsom should have vetoed the bill and sent it back to the Legislature to fix its serious shortcomings. Instead he signed a fatally flawed bill into law over the objections of concerned prosecutors, Mothers Against Drunk Driving, and victims across California.

The criminal justice system does not exist to simply punish. It exists to set first-time offenders back on the right path and to deter criminal behavior from ever occurring — and from victims ever having to become victims.

Diversion is a valuable tool in the criminal justice system. But it should be measured and appropriate and not at the risk of innocent lives — now or in the future. 


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