What is AB 3234?
AB 3234- Get out of Jail for free. Get your Misdemeanor Case Dismissed Under this new Misdemeanor Diversion Law of 2021.
AB 3234 originated from a pilot program in Los Angeles County in 2019, which allowed Judges to dismiss cases at their discretion. In 2021, following the Los Angeles pilot program, this new California law dramatically expands a Judge's ability to dismiss your misdemeanor case in California through a process called diversion. This law is codified in Penal Code section 1001.95(a) (e), which states in pertinent part:
A judge in the superior court in which a misdemeanor is being prosecuted may, at the judges discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
How does it Work?
Any person who is charged with a misdemeanor crime in California is eligible for this diversion program (with some notable exceptions as stated in section 3 below). Diversion just means that the Judge can dismiss your case on his or her own, but can first make you do stuff, such as community labor, counseling, restitution, etc. prior to dismissing your case. The great thing is that, unlike a formal diversion where you plead guilty and your guilty plea is later withdrawn before your case is dismissed, in this AB 3234 diversion, the words guilty or no-content never escape your lips since in this type of diversion your case is dismissed informally. For those defendants who are not citizens, this type of diversion will help for immigration purposes too because even formal diversion that leads to dismissal after a guilty plea is entered and then withdrawn can hurt your chances in immigration court, whereas this type of informal diversion cannot. The Judge simply postpones the case for the time she or he sees fit (if any), and allows you to perform terms and conditions as she or he sees fit (if any), and then dismisses your case.
You will also have to make restitution to the victim, if any, as part of the diversion, but your failure to do so if you cant afford it will not bar diversion in your case.
If you fail to satisfy the requirements of the Court, the Judge can end the diversion program, but even then you would have the opportunity to continue to fight your case!
Diversion existed before AB 3234, but only in limited circumstances such as mental health diversion under PC 1001.36.
For those charged with misdemeanors, this statute is like chocolate ice cream. But theres even a cherry on top: once your case is dismissed, even the arrest will be removed from your record as if it never happened! You can legally tell schools, jobs, or anyone else that you have not been arrested, with the one exception that if youre applying to be a police officer you still have to disclose it.
AB 3234 is not limited to first-time misdemeanors either and can technically be used more than once, though practically speaking most Judges may not grant diversion if it has previously been granted.
How can I take advantage of this law?
Effectively persuading the Judge to grant diversion entails presenting a 3-dimensional, multi-faceted profile of the defendant that helps the Judge feel you. The Judge will have to be persuaded that the defendants conduct can somehow be excused based on, for instance, unusual circumstances, the defendants history and background, or other mitigating circumstance. It would also help to show that this is unlikely to happen again, and that defendant has experienced remorse and has good character, and is moving forward productively with his or her life.
Since the Judge is not required to give diversion, and it is entirely within his or her discretion, effective representation for you is essential.
