Los Angeles Military Diversion Lawyer

Military Diversion: How Veterans Can Avoid Incarceration if They Meet Certain Conditions

Those who serve in the armed forces often pay a physical and mental price for their service, whether from a battlefield injury or post-war traumatic stress.

California courts recognize this and have created a military diversion program that can help active duty service members and veterans avoid incarceration.

If you are a veteran and are currently charged with a DUI or other eligible criminal offense, you may be able to avoid incarceration and even a conviction on your record by waiving your right to a trial in favor of a diversion program that focuses on mental health.

Let’s take a closer look at the program and how it operates.

How California’s Military Diversion Program Works

California Penal Code sections 1001.80 through 1001.80 established the state’s pre-trial diversion program. According to the Code, the program is open to those who meet the following criteria:

“(1) The defendant was, or currently is, a member of the United States military.

(2) The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.”

If those criteria are met, the defendant becomes eligible to participate in a diversion program that fits the following parameters:

“When determining the requirements of a pretrial diversion program pursuant to this chapter, the court shall assess whether the defendant should be ordered to participate in a federal or community-based treatment service program with a demonstrated history of specializing in the treatment of mental health problems, including substance abuse, post-traumatic stress disorder, traumatic brain injury, military sexual trauma, and other related mental health problems.”

While seeking mental health treatment in a community setting is certainly a better outcome than incarceration, those who participate in the military diversion program must closely adhere to the rules and make satisfactory progress. Reports from the treatment agency must be submitted to the court every six months. If the court receives reports that progress is not satisfactory, the court will hold a hearing and the defendant can be removed from the diversion program and may face incarceration.

If the program is successfully completed, however, the defendant can walk away with a virtually clean record. The state Penal Code states:

“Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The defendant may indicate in response to a question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (j). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.”  

Given these circumstances, any active service member or veteran who is facing a qualifying criminal charge should give strong consideration to this program.

California’s Military Diversion Penal Code: Full Version

CHAPTER 2.9C. Military Diversion Program [Penal Code Sections 1001.80- 1001.80.]

(a) This chapter shall apply to a case before a court on an accusatory pleading alleging the commission of a misdemeanor offense if both of the following apply to the defendant:

(1) The defendant was, or currently is, a member of the United States military.

(2) The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.

(b) If the court determines that a defendant charged with an applicable offense under this chapter is a person described in subdivision (a), the court, with the consent of the defendant and a waiver of the defendant’s speedy trial right, may place the defendant in a pretrial diversion program, as defined in subdivision (k).

(c) If it appears to the court that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from the treatment and services provided under the diversion program, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from diversion, the court may end the diversion and order resumption of the criminal proceedings. If the defendant has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed.

(d) If a referral is made to the county mental health authority as part of the pretrial diversion program, the county shall provide mental health treatment services only to the extent that resources are available for that purpose, as described in paragraph (5) of subdivision (b) of Section 5600.3 of the Welfare and Institutions Code. If mental health treatment services are ordered by the court, the county mental health agency shall coordinate appropriate referral of the defendant to the county veterans service officer, as described in paragraph (5) of subdivision (b) of Section 5600.3 of the Welfare and Institutions Code. The county mental health agency is not responsible for providing services outside its traditional scope of services. An order shall be made referring a defendant to a county mental health agency only if that agency has agreed to accept responsibility for all of the following:

(1) The treatment of the defendant.

(2) The coordination of appropriate referral to a county veterans service officer.

(3) The filing of reports pursuant to subdivision (h).

(e) When determining the requirements of a pretrial diversion program pursuant to this chapter, the court shall assess whether the defendant should be ordered to participate in a federal or community-based treatment service program with a demonstrated history of specializing in the treatment of mental health problems, including substance abuse, post-traumatic stress disorder, traumatic brain injury, military sexual trauma, and other related mental health problems.

(f) The court, in making an order pursuant to this section to commit a defendant to an established treatment program, shall give preference to a treatment program that has a history of successfully treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service, including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs.

(g) The court and the assigned treatment program may collaborate with the Department of Veterans Affairs and the United States Department of Veterans Affairs to maximize benefits and services provided to a veteran.

(h) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months.

(i) A record filed with the Department of Justice shall indicate the disposition of those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. The defendant may indicate in response to a question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (j). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(j) The defendant shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (i), this section does not relieve him or her of the obligation to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Section 830.

(k) (1) As used in this chapter, “pretrial diversion” means the procedure of postponing prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication.

(2) A pretrial diversion program shall utilize existing resources available to current or former members of the United States military to address and treat those suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service.

(l) Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a pretrial diversion program in accordance with this section includes a misdemeanor violation of Section 23152 or 23153 of the Vehicle Code. However, this section does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.

(Amended by Stats. 2017, Ch. 179, Sec. 1. (SB 725) Effective August 7, 2017.)

Finding the Right Criminal Attorney

At Goldstein Law Group, we help fight for the rights of the accused every day. If you’re a veteran or active duty service member who could benefit from this program — or a civilian who needs experienced legal representation — we urge you to call us today.  Since 1975, our lawyers have helped our clients navigate the criminal justice system.