Military diversion (Pen. Code, § 1001.80) is not available for defendants charged with driving under the influence (DUI) offenses (Veh. Code, §§ 23152, 23153). VanVleck, an active duty Marine, and Kluesner, an Army veteran, were charged with misdemeanor DUI offenses. In both cases, the trial courts granted military diversion, which is available where the defendant is charged with a misdemeanor, was or is a member of the military, and may be suffering from trauma or PTSD as a result of their service. The People appealed, arguing that Vehicle Code section 23640 prohibits diversion in all DUI cases. Held: Reversed. In 1981, the Legislature enacted section 23640 to eliminate diversion in DUI cases. Thereafter, in People v. Weatherill (1989) 215 Cal.App.3d 1569, the court considered whether a diversion statute for defendants with cognitive developmental disabilities charged with any misdemeanor offense (Pen. Code, § 1001.21) was an exception to Vehicle Code section 23640. The court concluded that it was not based on the legislative history of section 23640, which made clear that diversion was unavailable to all defendants charged with DUI. The military diversion statute, enacted in 2014, is no different. In fact, “[h]ad the Legislature intended to depart from the conclusion in Weatherill and create an exception to section 23640, it could have easily done so by stating that the military diversion statute authorizes pretrial diversion for defendants charged with DUI.” The rules of statutory construction support this conclusion. Although later enacted statutes generally supersede earlier ones, and the military diversion statute was enacted 23 years after section 23460, section 23460 is a more specific statute because it deals with diversion in DUI cases specifically as opposed to diversion in all misdemeanor cases, and as such it prevails despite its earlier enactment.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D069893.PDF