Weatherill

WOODS (Fred), J.

(1a) Do Vehicle Code sections [1] 23202 and 23206, which prohibit diversion "in any" driving under the influence case, make an exception for a developmentally disabled defendant? Our answer is no.

On October 22, 1986, defendant was charged with misdemeanor violations of section 23152, subdivision (a), driving under the influence of alcohol, and section 23152, subdivision (b), driving with .10 percent alcohol in his blood. As to both counts it was alleged that he had suffered a 1984 conviction of section 23152, subdivision (a).

At his arraignment, defendant's counsel moved for diversion pursuant to Penal Code section 1001.21 which provides: "(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading at any stage of the criminal proceedings, for any person who has been evaluated by a regional center for the developmentally disabled and who is determined to be developmentally disabled by such regional center, and who therefore is eligible for its services. [¶] (b) This chapter applies to any offense which is charged as or reduced to a misdemeanor, except that diversion shall not be ordered when the defendant previously…

I respectfully dissent. This is an extraordinarily close case, however. In no sense is this one of those instances where the dissenter thinks the majority is guilty of an egregious error in its analysis or its interpretation of the facts. Nor is it one where some fundamental constitutional or legal principle is at stake. Indeed I consider the majority has presented a well-reasoned argument in support of its resolution of the conflict between these two statutes. The problem is the conflict is so profound, the Gordian knot so tightly wound, that an equally persuasive argument—indeed in my view a marginally more persuasive argument—can be made for the opposite resolution.

So I dissent more out of frustration than conviction. Perhaps by doing so this exchange of judicial opinions can serve as a signal to the Legislature *1571 this series of statutes has left the courts in a quandary. Traditional rules of statutory construction do not seem to really solve the puzzle; they cancel each other out. And, as can best be determined from the available evidence of legislative intent, the lawmakers did not expressly contemplate the issue bothering us here. So we are left to decipher the…

Do Vehicle Code sections 1 23202 and 23206, which prohibit diversion “in any” driving under the influence case, make an exception for a developmentally disabled defendant? Our answer is no.

Procedural and Factual Background

On October 22, 1986, defendant was charged with misdemeanor violations of section 23152, subdivision (a), driving under the influence of alcohol, and section 23152, subdivision (b), driving with .10 percent alcohol in his blood. As to both counts it was alleged that he had suffered a 1984 conviction of section 23152, subdivision (a).

At his arraignment, defendant’s counsel moved for diversion pursuant to Penal Code section 1001.21 which provides: “(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading at any stage of the criminal proceedings, for any person who has been evaluated by a regional center for the developmentally disabled and who is determined to be developmentally disabled by such regional center, and who therefore is eligible for its services, [if] (b) This chapter applies to any offense which is charged as or reduced to a misdemeanor, except that diversion shall not be ordered when the defendant…