Military Diversion

Helping Veterans Rehabilitate Without the Stigma of a Criminal Conviction

Prosecutors have long used diversion programs to defer the prosecution of a person based on certain grounds. The juvenile court system is a classic example of a diversion program designed to rehabilitate juveniles without attaching a criminal stigma. As of January 1, 2015, certain veterans can now too benefit from a pre-trial diversionary program.

The State of California created a pre-trial diversionary program for veterans, recognizing that it is not always necessary, and in fact, may be detrimental to pursue a formal courtroom prosecution. If you qualify, that means you are enrolled in a treatment plan and if successfully completed, have no criminal record.

Military Diversion under California Penal Code 1001.80

California Penal Code Section 1001.80 Military Diversion is “pre-trial diversion.” That means that in certain circumstances, a judge can decide that a veteran qualifies for pre-trial diversion and can postpone the case for up to two years.  The criminal hearing process will be frozen during that time.

Under the Military Diversion program, the veteran is responsible for successfully completing a “treatment plan” with certain terms and conditions, which may include attendance at regular treatment meetings, meeting with a counselor or therapist, drug or alcohol testing, and regular reporting with certain agencies or organizations.  If the treatment plan is successfully completed, which is usually less than two years, then the criminal case will be dismissed.

It is important that a veteran participating in the program abide by the terms and conditions imposed by the court. Under certain circumstances, the judge has the authority to prematurely end the Military Diversion program, if the veteran fails to fulfill his or her obligations. For example, if the veteran is not honoring his or her attendance for treatment meetings or is failing to submit to drug or alcohol testing, then the judge can terminate the program.

The judge can also prematurely end the veteran’s participation in the diversion program if they determine the veteran is not benefiting from it. Once the judge ends pre-trial diversion, the criminal case resumes, and the veteran will face the same criminal charges prior to the case being frozen.

Who Qualifies for Military Diversion?

In order to qualify for pre-trial diversion under the Military Diversion program, and ultimately a dismissal of the criminal case, a veteran must satisfy the following three requirements:

  • Be a current member, or a former member of the United States military;
  • Suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems. These issues must be a result of military service.
  • The arrest must involve a misdemeanor charge.

If you believe you may qualify for the program, here are a few addition points to consider:

  • Showing that you were a member or current member of the U.S. military can be as easy as submitting Form DD-214, and orders.
  • Demonstrating that you have a qualifying diagnosis, meaning that the problems you face are a result from your time while serving in the military can be proved through DOD medical records, VA records, military medical records, and other civilian medical records.

It is equally important to demonstrate that you can be successful in a treatment program. Also, that as an exercise of discretion, you warrant Military Diversion. The judge is not required to approve your participation in the program, but rather does so in their discretion. Therefore, it is imperative to show all relevant factors that as a veteran, with unique personal circumstances, you are deserving of Military Diversion. This assessment also includes whether you have a prior conviction for the same or similar offense.

Successful integration into the Military Diversion program begins with proper preparation and advice from an attorney who can show your circumstances in the best possible light. That way, the prosecutor and judge presiding over your case have a concise understanding of your situation. Although it is best to request Military Diversion in the beginning of the criminal prosecution, you can request it at any point in the judicial process.

Also, contacting a criminal defense attorney early on can help you qualify for Military Diversion. For example, there may be certain felony charges that may not necessarily be disqualifying. In certain circumstances, depending on the felony charged, a magistrate judge can reduce the felony to a misdemeanor after considering the circumstances of that case.

The Process

In addition to meeting the statutory requirements referenced above, your attorney must make a motion to the court for you to be considered for Military Diversion. Usually, the motion is made after your arraignment but before the case goes to trial. It is your burden, meaning you must prove that you are eligible and suitable to participate in the program. Suitability means that you will likely be a successful candidate for Military Diversion.

Helpful documents to submit to the court to show suitability include:

  • Character letters;
  • Awards and citations;
  • Letters or citations discussing battlefield experience, trauma, or heroic acts if applicable; and
  • Letters from your support network, including a spouse, parents, or friends that will show increase probability in successfully completing a treatment plan.

How will your treatment plan be determined?

The court makes the determination as to which treatment program will produce successful results. In making that assessment, the court will decide whether you should be subjected to federally based or locally based “treatment plans.”

The courts can assign a treatment program and collaborate with the Department of Veterans Affairs and the United States Department of Veterans Affairs to maximize benefits and services provided to a veteran. However, it is imperative that you take an active approach in devising your own treatment plan. Taking an active role in determining your treatment plan shows the court just how committed you are to your success. It is also a way that you can work with your own health care providers.

Usually, under the Military Diversion program, the treatment plan can take an average of one year and a half to two years for completion. However, two years is the maximum amount of time that the law provides for treatment plans.

An Experienced Military Diversion Lawyer

Most often, a vast majority of veterans who will qualify for the Military Diversion program are first-time offenders who do not have a criminal history. Typically, a qualifying veteran’s criminal conduct is out of character and the Military Diversion program offers a second chance—a plan to rehabilitate the veteran without attaching a criminal stigma of a conviction.

Even if the Military Diversion does not look like an option, it is best to consult with a attorney first. Additionally, there are other avenues under California law meant to assist a veteran in keeping their criminal record clean, including Veterans Court, alternative sentencing under California Penal Code (P.C.) § 1170.9 and “Diversion” under P.C. § 1001.80.

If you are a veteran or active military member who has been charged with a criminal offense in California, call our experienced team at The Law Offices of Christopher J. McCann today for a consultation of your case. You may reach us at (949) 596-0060.