October 23, 2026
Misdemeanor diversion under Penal Code 1001.95 lets a California superior court judge pause a misdemeanor case and dismiss it if the defendant completes the conditions the judge sets. The judge can offer diversion even if the prosecutor objects and can continue the case for up to 24 months. The statute excludes offenses that require sex offender registration and offenses involving domestic violence along with stalking. Published appellate decisions also hold that misdemeanor DUI is not eligible because Vehicle Code 23640 bars it. Diversion is discretionary so a judge is never required to grant it.
A California judge can dismiss a misdemeanor after a period of compliance. The law that allows it is short and leaves most details to the judge. That makes it useful and also easy to misunderstand.
This guide explains who is eligible and who is not and how the judge decides. It also covers the conditions that can apply and what happens at the end of the diversion period. It is general information and not advice for a specific case. For help with a pending charge see Defend CA’s page on misdemeanor diversion legal help.
Misdemeanor diversion is a court-ordered pause in a misdemeanor prosecution that ends in dismissal when the defendant completes the conditions. Penal Code 1001.95 lets a judge in the superior court where the case is being prosecuted offer it in the judge’s discretion. The judge can do this even if the prosecuting attorney objects.
The judge can continue the case for up to 24 months and order the defendant to follow any terms or programs the judge considers appropriate for the defendant’s situation. If the defendant complies by the end of the period the judge must dismiss the action.
A defendant charged with a misdemeanor can be considered for diversion unless the charge falls in an excluded category. The statute bars diversion for three groups of current charges:
Older descriptions of the law name only Penal Code 273.5 and 243(e) for domestic violence. The current text covers any offense involving domestic violence so a charge outside those two sections can still be excluded.
Other laws can also bar diversion for particular charges. The most important example is DUI.
No. California appellate courts have held that Penal Code 1001.95 does not authorize diversion for misdemeanor DUI. Vehicle Code 23640 bars a court from suspending or staying a case for a person charged under Vehicle Code 23152 or 23153 so that the person can complete education or treatment programs. It also bars the court from considering dismissal for that reason.
Three published decisions reached this result:
The Tan court acknowledged the question was close and noted that several bills to change the rule had stalled. The Daily Journal reported in March 2022 that the California Supreme Court declined to hear an appellate decision on the issue. A person charged with DUI should ask a lawyer about the programs that remain available after a conviction and about any change in the law.
Yes. The statute says the judge may offer diversion even if the prosecuting attorney objects. The statute does not list factors for the judge to weigh so the decision rests on the judge’s discretion.
Courts have begun to address how that discretion works. A 2026 decision from the Fourth Appellate District, Bobo v. Appellate Division, involved misdemeanor vehicular manslaughter. According to a summary of the decision the court found that offense was not on the excluded list. It also found that the trial court abused its discretion by relying only on facts inherent in the offense without connecting them to the purposes of the statute. A lawyer can explain how that reasoning applies to a specific case.
The judge can order any terms the judge considers appropriate for the defendant’s situation for up to 24 months. The statute does not list them. Penal Code 1001.96 adds the requirements that matter for dismissal:
When the defendant completes the conditions the judge must dismiss the case. Under Penal Code 1001.97 the arrest is then treated as though it never occurred. The defendant may answer that they were not arrested when asked about their record. Without the defendant’s consent the arrest record cannot be used to deny employment, a benefit, a license or a certificate.
There are exceptions. The defendant must be told that the California Department of Justice may disclose the arrest in response to a peace officer application request. The defendant must also disclose the arrest if an application for a peace officer position asks about it directly.
The court can end diversion and restart the criminal case. If the court believes the defendant is not complying it must give notice and hold a hearing. If the court finds noncompliance it may end diversion and order the criminal proceedings to resume. A defendant who is struggling with a condition should talk with a lawyer before the hearing and not after.
Penal Code 1001.95 is a general program that a judge can offer for most misdemeanors. Other California programs target specific situations and have their own rules. Examples include Penal Code 1000 for certain drug charges and Penal Code 1001.36 for mental health diversion. DefendCA describes the latter on its page for mental health diversion. A charge can be eligible for one program and not another so a lawyer should compare them.
It can matter a great deal. The Immigrant Legal Resource Center says pretrial diversion is not a conviction for immigration purposes while deferred entry of judgment is. The difference turns on whether the defendant has to enter a plea. Section 1001.95 does not say a plea is required but a noncitizen should have a lawyer confirm how the court handles diversion before agreeing to anything.
Procedures differ by court. The statute does not set a filing process. Defense attorneys generally ask the judge to offer diversion and the court then decides whether to grant it. Ask your attorney how the court that hears your case handles these requests and whether it uses a local form.
Misdemeanor cases in San Mateo County are heard at the Superior Court’s Southern Branch in Redwood City or the Northern Branch in South San Francisco. Defend CA’s guide to the criminal court process in San Mateo County explains each stage. Thomas Greenberg handled San Mateo County cases as a Deputy Public Defender and now practices privately in Redwood City.
Penal Code 1001.95 gives judges a way to dismiss a misdemeanor after a period of compliance, but it leaves the decision to the judge and excludes several categories of charges. Whether it fits in a particular case depends on the charge and the person’s history and the court.
If you are facing a misdemeanor charge Thomas Greenberg can review the charge and explain whether diversion is worth asking for. Call (650) 242-0021 or contact the firm to ask for a free consultation. No result can be promised, and every case is different.
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