How To Get A Military Diversion For California Veterans

Under Penal Code § 1001.90, California military veterans who are suffering from emotional trauma as a result of their military service may qualify for a pre-trial diversion program if they committed a misdemeanor offense. 

Watch this video to understand how to get a military diversion.

How Does The Diversion Program Work?

Pre-trial diversion programs are designed to keep certain offenders from obtaining a criminal record, so long as they meet certain conditions.

If the individual is successful in completing the diversion program that includes treatment and counseling for whatever diagnosis you have, the criminal charges are dismissed.

Having a clean criminal record enables the veteran to have more opportunities to seek the following:

• Suitable employment,
• Keep their current employment,
• Find housing,
• Obtain credit and student loans, and
• Qualify for other government programs that might be closed to criminal offenders. 

Who Is Eligible To Receive A Military Diversion?

To be eligible to receive a military diversion, you must meet certain requirements:

1. Be on active military service
2. Be a veteran of any of the military branches
3. Received an honorable discharge or other-than-honorable discharge (not a dishonorable discharge)
4. The offense you are charged with is a misdemeanor
5. You have not previously participated in any type of diversion program
6. You do not have a past conviction for the same offense
7. The court finds you have qualifying diagnosis from a medical professional or from your military medical records¹

What Conditions Must Be Met To Apply For A Military Diversion?

If you are currently serving in the military or are a veteran and meet the above criteria, a court must find that you meet the following psychological conditions:

• Sexual trauma
• Post-traumatic stress disorder (PTSD)
• Traumatic brain injury
• Substance abuse
• Any mental health issues that developed during or as a result of service. 

There need not be a nexus or causal link between your particular diagnosis and your military service. For instance, there is no requirement that your substance abuse or addiction problem arose because you were in a combat zone. 

Records of your condition may be found in:

• VA records
• Separation physicals
• Medical evaluations while on active duty
• VA compensation and pension package
• Support letters from family 
• Citations and letters outlining combat experiences and trauma
• Letters from case workers, VA rep, and mental health providers
• Current medical records and opinions of medical professionals

What Is The Legal Process For Getting Into The Diversion Program?

If you appear to meet all the qualifying criteria, your attorney will file a motion with the court after your arraignmentand before your trial or other disposition requesting that you be accepted into the diversion program.

Some California counties will refer you to a separate department on this issue or to another judge who will conduct a “suitability” hearing. 

What Should Be Included In The Motion?

The motion for acceptance into military diversion should detail your eligibility,

• Contain a file that has records that support your condition or diagnosis that qualifies under the statute along with  
• Letters from family, peers, case worker, VA rep, and others attesting as to your character, military experience, any trauma experienced, and other relevant information.
• A proposed treatment plan recommended by your medical provider, psychologist, or therapist.

Once accepted into the program, the court will place you in the appropriate community-based or federal program designed to treat your particular condition and that has a documented success rate for veterans²

How Long Does It Take To Complete The Program?

Most military diversion programs are 12-months, but some can last up to 24-months though none are permitted to last more than 2-years.

What Crimes Are Eligible?

Misdemeanor crimes are eligible for military diversion and include:

• DUI
• Domestic violence
• Simple assault
• Disorderly conduct
• Petty theft
• Shoplifting
• Drug possession
• Prostitution
• Indecent exposure
• Drunk in public
• Any other misdemeanor

Are Any Felonies Eligible For Military Diversion?

Although commission of a felony renders you ineligible for diversion, there are certain offenses known as “wobblers” whereby the court can reduce the offense from a felony to a misdemeanor³.

Wobbler offenses include:

• Assault or battery on a peace officer, firefighter, or paramedic
• Certain conspiracy charges—to cheat or defraud, obstruct justice, to commit a felony, etc.
• Participation in criminal street gang activity
• Vehicular manslaughter without alcohol or drugs but with gross negligence
• Vehicular manslaughter with drugs or alcohol but without gross negligence
• Battery against a person with serious bodily injury
• Unlawful sexual intercourse
• Sexual battery
• Infliction of traumatic injury 

How Can Felonies Be Reduced To Misdemeanors?

Reducing a wobbler offense to a misdemeanor depends on several factors including:

1. The nature and severity of the offense,
2. Whether you have a criminal history or record, and
3. Other mitigating circumstances.

Through negotiations, your criminal defense attorney may persuade a prosecutor to also reduce a felony to a misdemeanor once records of your military service and diagnosis are made available.

Will My Arrest Still Be On My Record After Completing the Conditions?

If you meet all the conditions of the program and are successfully discharged, then charges will be dismissed or dropped, and your arrest record will be sealed and be inaccessible to the public.

Do I Nee To File An Expungement After Completeing The Program?

Since you never pled guilty to any charges, there is no need to expunge a conviction.

On any application for rent, employment or benefits, you can state that you have never been arrested or been in diversion without fear of committing perjury.

Do I Need To Disclose My Arrest If I Plan To Apply To Be A Police Officer?

However, if you are applying to become a police officer then you must disclose your arrest. 

If your arrest was for a DUI, the dismissal of charges may not necessarily affect the DMV’s authority to suspend your driver’s license since it is separate from any criminal proceedings.

What Happens If I Don’t Complete the Conditions of My Diversion?

A judge can terminate your program before you complete it if you are not meeting all conditions and terms, or the records and reports indicate you are not demonstrating any progress in your treatment.

Should a judge decide to terminate your participation before completion, the criminal proceedings that were placed on hold will once again commence and you will face all charges. 

1. PC § 1001.80 (a)(2). [↩]
2. Penal Code § 1001.80(e). [↩]
3. Penal Code § 17(b). [↩]