In California, incarceration and a criminal record are the most dreaded consequences of a criminal conviction. Military diversion is one of the common pretrial programs available for veterans and military members who face misdemeanor charges in California. These programs help you avoid jail time in exchange for treatment and counseling. Individuals who have served in the military or are active-duty militants suffer unique mental and psychological challenges.
The court recognizes these difficulties by offering sentencing alternatives like a military diversion. If you have suffered post-traumatic stress disorder, sexual trauma, or psychological stress from your service, you can benefit from the treatment offered in the military diversion program.
If you hope to enter the diversion program, you will benefit from the competent legal guidance we offer at Los Angeles Criminal Attorney. We will guide you through filing a motion to ensure your acceptance into the diversion program.
Understanding Military Diversion in California
Pretrial diversions are programs designed to keep certain groups of offenders from sending time in jail and having a criminal record. After completing the treatment and counseling program, the court dismissed the charges. Military diversion is a unique pretrial diversion program offered to veterans and active military members who have undergone emotional and psychological trauma during their time in the military.
If a veteran faces misdemeanor charges and is eligible for military diversion, the court does not require them to plead guilty or no contest to their charges. Instead, the judge suspends the defendant’s criminal proceedings and allows them to undergo treatment and counseling offered under the military diversion.
Before entering a military diversion program, you must waive your rights to a speedy trial. In California, all defendants have a right to a speedy trial. However, you must complete all the treatment or counseling programs offered under PC 1001.80, making it impossible to enjoy a speedy trial.
The court can send you to a military diversion program if you meet the following criteria:
- You are an active military member.
- You are a veteran of any military branch.
- You received an honorable discharge from the military.
- You face misdemeanor criminal charges.
- You do not have a criminal conviction for a similar offense.
- You receive a qualifying diagnosis from a court-approved medical professional.
Conditions that Qualify for Military Diversion
You will qualify to enter the diversion program if you are diagnosed with any of the following conditions:
Post-Traumatic Stress Disorder
PTSD is a condition suffered by individuals who have undergone traumatic conditions like sexual assault or combat. Although most people who experience trauma could snap back without developing PTSD, military members undergo extensive stress, making it difficult for some to recover. After a stressful experience, a person may undergo symptoms of acute stress which go away after several weeks. If your symptoms persist for more than a month and affect your ability to function, you could be diagnosed with PTSD.
Symptoms of post-traumatic stress disorder can begin within three months of a stressful experience. However, some symptoms could begin after several years. Some of the common symptoms of PTSD include:
- Frightening thoughts.
- Staying away from places and events that remind you of a traumatic experience.
- Feeling tense.
- Anger outbursts.
- Bad dreams.
- Difficulty sleeping.
- Negative thoughts.
- Loss of interest in enjoyable activities.
- A feeling of guilt and shame.
Feeling anxious and fearful is normal for individuals who have suffered trauma. However, if you have an underlying medical condition and lack enough social support, you could be at a higher risk of developing the condition.
Military Sexual Trauma
Under the US Department of Veteran Affairs, military sexual trauma is psychological trauma resulting from a physical assault of a sexual nature that occurs during active military duty. Some of the acts that constitute military sexual abuse include:
- Forced oral sex.
- Sexual penetration with a foreign object.
- Coerced sex.
- Unwelcome and threatening sexual advances.
Whether you were on or off duty when the sexual acts occurred will not affect your eligibility for the military diversion program.
Traumatic Brain Injury (TBI)
A traumatic brain injury is a form of cognitive impairment that results from violent blows to the head. In the military, you could suffer a gunshot to the head or serious falls that cause injury to your brain. Another common cause of TBI in military personnel is explosives. Some symptoms of TBI could appear immediately after the injury, including:
- Severe headaches.
- Loss of consciousness.
- Poor coordination.
If left untreated, the condition could worsen and cause the following long-term issues:
- Difficulty in concentration.
- Loss of memory.
- Poor problem-solving and decision-making.
The emotional and cognitive issues resulting from TBI could affect a person’s relationships with their family and contribute to criminal behavior.
Substance Abuse and Mental Health Problems
In addition to military sexual trauma, TBI, and PTSD, military diversion is available for veterans of military members dealing with substance abuse or other conditions like depression. The main factor that the court will consider is whether your condition resulted from your military service.
Crimes Eligible for Military Diversion
In California, the court will only consider you for military diversion if you face charges for the following misdemeanor offenses:
- DUI. You commit the crime of DUI when you operate a vehicle under the drug or alcohol influence. You are considered to be under the influence if your blood alcohol content was 0.08% or more at the time of driving.
- Domestic violence. Domestic violence is a term used to describe a wide variety of offenses committed against an intimate partner or other people with whom you have a personal relationship. Some of the offenses that fall under this category include child abuse, elder abuse, and corporal injury of a spouse.
- Disturbing Peace. Under California Penal Code 415, you commit the crime of disturbing the peace when you engage in disruptive behavior.
- Petty theft. Petty theft involves taking property without the owner’s consent when the property is worth $950 or less.
- Drug possession. Under California Health and Safety Code 11350, you can be arrested for drug possession if you are in actual or constructive possession of a controlled substance. Some of the controlled substances include illegal narcotics like cocaine and prescription medications.
Although facing charges for a felony offense makes you ineligible for military diversion, you may have a chance to enter the program if your felony charges resulted from wobbler charges. A wobbler is an offense that can attract felony or misdemeanor charges depending on the circumstances.
Having your felony reduced to a misdemeanor helps you meet the eligibility criteria for the diversion. Reducing a wobbler offense to a misdemeanor depends on these factors:
- Your criminal history.
- The seriousness of your crime.
- The experience of your defense attorney.
Entry to the Military Diversion Program
If you meet the eligibility criteria, your defense attorney will file a motion with the court before your trial requesting your admission to the diversion program. Sometimes, the judge can schedule a suitability hearing where the court determines whether you meet the criteria. Your motion for acceptance of military diversion should contain the following information:
- Files that support the diagnosis of a condition that qualifies under PC 1001.80.
- Letters from employers, family, and friends who can attest to the change in your behavior after the traumatic experience in the military.
- A treatment plan recommended by your therapist or psychologist.
If you are accepted into the military diversion program, the judge decides where you need a federal or local treatment plan. The court assesses all the programs available for veterans and determines the one that reports high success rates for your particular condition. If a program sponsored by the Department of Veterans Affairs is unavailable, the court will collaborate with other departments to ensure that you receive appropriate treatment.
Sometimes, the judge can direct you to the government mental health unit. However, this happens if the mental health unit is willing to support your treatment and write periodic reports to the court. While on the diversion program, the court requires you to comply with the following conditions:
- Attend all treatment sessions. In addition to keeping you out of jail, military diversion aims at treating you for your underlying PTSD or mental health condition. The court could terminate your program if you fail to attend your treatment sessions.
- Attend counseling for substance abuse. If the court determines that you have substance abuse problems contributing to your criminal behavior, the judge ensures that your diversion program includes substance abuse counseling.
- Mandatory court appearance. Entering a military diversion program does not end your obligations to the court. When the department responsible for the program files a court report, the judge could order you to appear for a review of your progress.
- Random drug and alcohol testing. While in the diversion program, you must submit to an alcohol or drug test. A positive drug test can result in the termination of your rehabilitation program.
- You must provide a satisfactory progress report after assessment by the agency that administers the diversion program.
Benefits of Entering a Military Diversion Program
No one wants to undergo the criminal process and end up in jail. Programs like military diversion offer numerous benefits to a defendant, including:
No Jail Time
A misdemeanor conviction in California attracts a maximum jail sentence of up to one year. Spending time in jail can significantly impact your life. In addition to missing out on time with your family, the conditions in the cells can worsen your mental state. You will not spend a day behind bars when you enter the military diversion program and complete it.
The PTSD, sexual trauma, and other mental conditions a person suffers while in the military cannot be solved by spending time in jail. This is because a jail sentence is aimed at punishment and not rehabilitation. A military diversion program entails counseling and mental health treatment that could help you lead an everyday life.
No Criminal Record
The court will dismiss all your charges if you complete your military diversion program and follow all the conditions. Without your consent, no one can access your arrest records. In California, a criminal conviction is a public record. Therefore, if you end up in jail, other people can access the record and use it to discriminate against you. Having a clean criminal record makes it easy to:
- Seek and retain meaningful employment.
- Find suitable housing.
- Qualify for government programs that are closed to
- Obtain credit and student loans.
Post-Traumatic Stress Disorder as a Defense
When you face criminal charges in California, your attorney can present PTSD as a defense to your charges. In your case, you can raise the condition as a mitigating factor. One of the ways of presenting the defense is by arguing insanity. You can plead not guilty to the charges because of insanity. A person is legally insane if they do not understand the nature of their acts. In severe cases, PTSD can affect your judgment.
If PTSD cannot apply as an affirmative defense, you can use it for mitigation. When you argue that your condition made it possible for you to commit the crime, the judge may impose a lower sentence.
Post-Conviction Treatment Under California Penal Code 1170.9
Penal Code 1170.9 is a statute that allows veterans to undergo treatment due to their convictions. Unlike military diversion, Penal Code 1170.9 applies after you have been found guilty of your crimes. You are qualified to receive treatment under this statute if you meet the following criteria:
You must be eligible for a probation sentence before the court allows you to receive this treatment. As a result of this requirement, some offenses will not qualify. For example, probation is not an option for serious and violent felonies. Therefore, a conviction for these offenses will result in incarceration.
Mental or Medical Conditions
A veteran will qualify for treatment under penal code 1170.9 if the court determines that the individual suffered from severe medical or mental conditions from their time in the military. If you suffer from sexual trauma or post-traumatic stress disorder, you may be a good candidate for the program.
If you qualify for treatment under this statute, the court will place you on probation or order you to enroll in a non-profit or federal treatment program. The time you spend in a treatment program must be less than the time you could have spent in jail after your conviction.
When you complete your treatment program, the court determines whether you have satisfied all the probation conditions. Successful probation under PC 1170.9 include:
- You complied with all your probation conditions.
- You participated in all treatment programs.
- You are not a danger to the safety of other people in the community.
- You have benefited from the treatment programs.
If you have met all the program requirements, the court will reduce your felony conviction to a misdemeanor. A misdemeanor conviction on your record has fewer negative impacts on your life.
California Veterans Court
California veterans court is a rehabilitative program that allows military members facing charges to avoid a criminal record and jail time. The veteran's court addresses and resolves underlying issues like mental health problems and substance abuse. Veterans court offers a higher level of supervision and monitoring.
Depending on the nature of your criminal case, you can avoid prison, receive early probation termination and have your case dismissed. Judges offer these benefits to recognize the difficult times that military personnel has undergone while in service. Veterans treatment court provides crucial life tools which help the vets avoid criminal conduct.
The judge has the discretion to accept or deny your admission to the veteran’s court. However, you must meet these requirements:
- You have served in a military department.
- You pleaded guilty to your charges.
- You have suffered Sexual trauma, brain injury, or OTSD while in the military.
- You must agree to participate in a treatment program that lasts twelve to eighteen months.
- You are eligible for probation.
Veterans who are accepted to the program are placed on formal probation and undergo four phases:
- Phase I. In this first stage, you will undergo an extensive assessment to enable the court staff to formulate a treatment that meets your specific need. Phase one takes up to four months and includes weekly meetings with the judge and court staff. Additionally, you may need to make regular contact with your probation officer.
- Phase II. This step is less strenuous and lasts up to three months with fewer meetings.
- Phase III. The frequency of court meetings and drug tests reduce in this phase.
- Phase IV. The last stage in the Veterans Court involves transitioning from the program to normal life. In Phase IV, you may still have to attend court meetings. However, the main focus of the stage is to continue leading your life as a law-abiding citizen.
The court considers these factors to determine whether your treatment in the Veteran’s court was successful:
- Your progress while in formal education.
- Your degree of participation in the treatment, education, and rehabilitation programs.
- Your career potential.
- Your contribution to community support.
Frequently Asked Questions on Military Diversion
Under California PC 1001.80, military diversion allows veterans and active military members to receive treatment for their mental health conditions instead of serving jail time for their offenses. For most defendants, this diversion program is the best way to avoid incarceration. Some of the commonly asked questions about military diversion in California include:
Can the court terminate the military diversion program before I complete it?
Yes. You must follow several conditions while on the military diversion program. If the agency responsible for the program is dissatisfied with your progress, they could file a progress report with the prosecution. If the court finds that your conduct is unsatisfactory or you are not benefiting from the treatment offered, the court will terminate the program.
Will the court seal my record when I complete the military diversion program?
When your conduct is satisfactory, and you complete the diversion program, the court dismisses your misdemeanor charges. After the charge is dismissed, there won’t be records of your arrest. Additionally, you can answer no when asked about any arrests or convictions by potential employers. The only exemption to disclosing an arrest record after a military diversion program is when applying for a position as a peace officer.
Does the military diversion reverse a driver’s license suspension?
Military diversion is offered right before your criminal proceedings. When you face an arrest for drunk driving in California, the Department of Motor Vehicle could suspend your driver’s license even before you appear in court. Although military diversion is available for defendants facing DUI charges, completing the program will not limit the DMV’s authority to suspend your license.
Do I need an expungement after military diversion?
An expungement is a legal proceeding where the court allows you to withdraw your guilty plea and avoid the negative impact of your conviction. When entering a military diversion program, you will not need to plead guilty to your charges. Therefore, there is no conviction and expunging your record is not necessary.
How long does the military diversion program take?
Military diversion programs last between twelve to twenty-four months. Legally, the period it takes for your criminal charges to be diverted is less than two years. However, if you fail to follow the program's conditions, your criminal proceedings will continue as if you never entered the program.
Find a Reliable Defense Attorney Near Me
Entry into a military diversion program is a great way to avoid spending time in jail and receiving the treatment you need. However, not all veterans or active military members are eligible for this pretrial diversion. California Penal Code 1001.80 is only available for military members facing misdemeanor charges and undergoing PTSD, sexual trauma, or other psychological disorders.
The legal issues around military diversion can be complicated when you are a first-time offender. Your choice of an attorney can make a difference between incarceration and receiving the much-needed treatment in a comfortable and safe atmosphere. At Los Angeles Criminal Attorney, we will review the facts of your case and ensure that you benefit from alternative sentencing schemes. If you are a veteran or military member facing criminal charges in Los Angeles, CA, you will need our expert legal guidance. Contact us today at 424-333-0943 to discuss your case.