Following a criminal charge can be challenging and confusing, not knowing what will occur next, particularly if you are a first-time defendant in Van Nuys. Luckily Assembly Bill 3234 (misdemeanor diversion program) can allow you to have the case erased or dismissed upon completing a court-imposed diversion program. It enables you to protect your name, professional license, employment, immigration status, and criminal record. This blog discusses different diversion programs you can consider, depending on the circumstances of your charges. Keep reading to learn whether you are eligible.
What is a Misdemeanor Diversion Program?
A misdemeanor diversion program allows an eligible defendant to avoid incarceration by undergoing treatment. Upon completing the program, the criminal case will be dismissed and your arrest record sealed as if it never occurred. Theoretically, first-time defendants have a great opportunity to qualify for the misdemeanor diversion programs.
It is not a must you enter a no contest or guilty plea to engage in a misdemeanor diversion program. Nevertheless, if you fail your program or commit another crime before your program period ends, your original charges pick up where they left off and can lead to a conviction.
Assembly Bill 3234 gives the judge the discretion to order diversion (apart from in specific cases), even when the prosecutor objects. In other words, the judge in the court prosecuting your misdemeanor case can offer you a diversion once they determine it is appropriate. The judge can suspend the criminal case for two years if you accept the diversion offer.
During this time, you should comply with terms and conditions imposed by the court based on your criminal history and case circumstances. Common conditions include:
- Performing community service
- Attending alcohol classes
- Drug treatment program
- Anger management
All defendants should pay restitution to the victim(s) who suffered losses. Additionally, they should adhere to the restraining or protective order issued in the criminal case.
However, if you are financially unable to pay the restitution, it will not be considered a legal ground to find you in violation of the diversion conditions.
Impact of a Misdemeanor Diversion Program on Federal Issues
Misdemeanor diversion programs have potentially significant effects on federal matters like licensure and immigration. Federal laws treat a guilty plea, even if later withdrawn under a diversion, as a conviction as opposed to California laws that deem judgment final following the sentencing phase of the criminal justice process.
A defendant who fails to complete their misdemeanor diversion, the absence of a guilty plea preserves their entitlement to litigate the charges in a jury trial if it becomes relevant.
Crimes Not Eligible for Misdemeanor Diversion Program
Not all misdemeanor offenses are qualified for diversion consideration under AB 3234. The diversion programs are unavailable for persons charged with:
- Domestic battery (PC 243(e)(1))
- Corporal injury to a spouse (PC 273.5)
- Stalking (PC 646.9)
- A California misdemeanor sex-related crime that requires the accused to register as a sex offender per PC 290
Presenting a Petition at the Trial Court
Just because you are eligible for a misdemeanor diversion program, it does not necessarily mean the judge has to grant it to you. You have to fight for it. Therefore, it is wise that you present an effective and persuasive petition that highlights mitigating factors about your criminal history, background, character, and other legal arguments and relevant facts supporting your diversion request.
Other Pretrial Diversion Programs
Are you worried that you could not be eligible for the misdemeanor diversion programs, particularly with a previous crime?
Well, there are other pretrial diversion programs for which you can qualify, namely:
- Drug diversion
- Military diversion
- Mental health diversion
Generally, pretrial diversion programs are tailored for defendants struggling with mental health conditions, post-traumatic stress disorder, and addiction. The accused person receives the help they require while simultaneously avoiding a criminal record and serving time. The state also benefits in that the District Attorney’s caseload is lighter, and space in jails is not wasted on individuals in need of assistance instead of punishment.
Drug Diversion
PC 1000 allows an eligible defendant charged with a low-level drug crime to have their criminal charges dismissed if they complete drug treatment.
Some of the crimes that allow defendants to engage in drug diversion include:
- Possession of controlled substances (HS 11350)
- Illegal possession of marijuana (HS 11357)
- Drug paraphernalia (HS 11364)
- Abetting or aiding the use of unlawful controlled substances (HS 11365)
- Methamphetamines and drug possession (HS 11377(a))
- Under the influence of controlled substances (HS 11550)
- Illegal cultivation of marijuana (HS 11358)
- Forging or altering a prescription to acquire drugs for personal use (HS 11368)
- Possessing or using nitrous oxide (PC 381)
The listed laws cover common controlled substances like heroin, cocaine, ecstasy, ketamine, marijuana, gamma-hydroxybutyric, peyote, methamphetamines, and prescription opioids like hydrocodone and codeine.
To qualify for this misdemeanor diversion program, all the statements below should be correct:
- Within five (5) years before you committed the charged crime, you have not been convicted of a criminal activity involving drugs apart from the crimes highlighted in PC 1000
- The crime did not involve an offense of threatened violence or actual violence
- There exists no proof of simultaneous violation associated with dangerous narcotics apart from the commission of the crimes highlighted in PC 1000
- You have no previous felony conviction within five (5) years before you committed the charged crime
How a Defendant is Referred to the Drug Pretrial Program
First, the prosecutor will review your case. The prosecution will advise you and your defense lawyer in writing if you look eligible for the misdemeanor diversion program.
Your notice of qualification from the prosecution will entail:
- An explanation of every procedure involved in the program
- Description of authorities and duties of the prosecutor, probation department, court, and the program
- A statement indicating that the prosecutor can terminate the pretrial program following your failure of treatment, commission of an offense that disqualifies you, or violation of program conditions
- Information that the judge will dismiss your charges after you complete the drug treatment
- A clarification of how you can answer any question about your arrest and drug treatment after completing your program
- A statement indicating that to obtain the program, you should plead not guilty to the criminal charge and waive your rights to a jury trial, a speedy trial, and a speedy preliminary hearing
Then the judge will schedule a court hearing to determine whether you qualify and consent to the diversion program. Before making this determination, the judge can require a probation officer to investigate your case. The assigned probation officer will consider your age, employment records, community ties, previous drug use, demonstrable motivation, educational background, and treatment history.
Please note that any statement you make to the probation department during the investigation will be inadmissible to verify your original charges. Instead, the court and the probation department will use the information to decide whether you will benefit from treatment, rehabilitation, or education. Then the judge will determine what form of rehabilitation, treatment, or education would be suitable.
You will be given a chance to consent to your participation. If you agree, you will plead not guilty to your criminal charges and then complete a jury trial, speedy trial, and speedy preliminary hearing.
The drug diversion program should be either:
- A program that offers services free of charge to the participant and has been considered effective and credible by the county drug program administrator and the court
- Certified by the county drug program administrator under Chapter 1.5 of Title 8 of the Penal Code
Generally, the program lasts between twelve months and eighteen months. Nevertheless, after showing a good cause, the judge can extend the time, allowing you to complete the program.
During the program, you will submit to a drug or alcohol test. The results are used to determine your adherence to the misdemeanor diversion program. Failing the drug test does not result in a new criminal charge but probable program termination.
Mental Health Diversion
Under Penal Code 1001.36, mental health diversion allows some defendants to receive mental health treatment after being charged with an offense. The program allows an eligible and willing person to postpone any action in their case, allowing the accused to engage in the treatment program. The defendant can request the program at any stage of their criminal case before sentencing.
The conditions below must be satisfied before you qualify for the program:
- You suffer from a condition highlighted in the Diagnostic and Statistical Manual of Mental Disorders like schizoaffective disorder, schizophrenia, bipolar disorder, and PTSD.
- Your mental health condition played a considerable role in the crime committed.
- A qualified psychologist believes that you will respond to the treatment
- You consented to diversion and waived your entitlement to a speedy trial
- You agreed to abide by treatment as a term and condition of diversion
- The court believes that you will not pose a risk of danger to public safety
To prove the mental disorder, you should present proof of a diagnosis by an experienced psychologist. The professional will rely on evidence like your examination, arrest report, and medical records.
The court can conclude that the condition played a role in your crime commission if you exhibited any symptom of the mental disorder near or at the time of the crime. Generally, when making this determination, the court can review relevant evidence like police reports, witness statements, medical records, reports prepared by medical practitioners, a preliminary hearing transcript, and medical expert statements.
Finally, when determining whether the accused will not cause a public threat when treated in their community, the judge will consider the following factors:
- The district attorney’s opinion
- The criminal defense attorney’s opinion
- The mental health specialist’s opinion
- The accused history of the application of violence
- The defendant’s criminal record
- The seriousness of the crime in question
Typically, this misdemeanor diversion program lasts two years and can involve outpatient or inpatient treatment.
How Your Treatment Progress is Monitored
The agency providing your diversion treatment program should regularly present progress reports to the prosecutor, the court, and your defense lawyer.
If any of these events occur, the judge will schedule a hearing:
- You are prosecuted with a new California misdemeanor that demonstrates the application of violence
- You are facing a felony
- A psychologist recommends to the court that your diversion program performance is unsatisfactory or you are disabled
- You engage in a criminal act that makes you unfit for the diversion program
During the hearing, the judge determines whether:
- they should modify the treatment
- You ought to be referred to a county investigator for potential conservatorship proceedings
- They should reinstate your criminal proceeding
What Happens Once You Complete Your Treatment?
If you complete your program, the judge will dismiss your criminal charges during the diversion program period. You complete the program when you:
- Have abided by the diversion requirements
- Have avoided violation of new law unrelated to your mental health disorder
- Have a long-term mental health care plan
If you fail to complete the diversion, the judge will reinstate the proceedings against you.
Military Diversion
Military diversion is a pretrial diversion program under PC 1001.80 available as an alternative to serving time for misdemeanor crimes against active military members or veterans.
A defendant can be eligible for the diversion if, due to their military service, they suffer from:
- Military sexual trauma
- Substance abuse
- Mental health challenges
- PTSD
- Traumatic brain injury
You can find records that can prove your condition in:
- Separation physicals
- The Department of Veterans Affairs (VA) compensation and pension package
- VA records
- Support letters from loved ones
- Letters and citations with combat experience and trauma
- A medical evaluation while on active duty
- Current medical records and medical expert’s opinions
- Letters from mental health professionals and caseworkers
Generally, military diversion is only available to first-time defendants. A defendant with a previous conviction for the same crime or charged with a less severe and nonviolent California felony will be referred to Veterans Court.
Some of the misdemeanors eligible for the diversion include:
- Drunk in public
- Disturbing the peace
- Assault
- Battery
- Driving under the influence
- Petty theft
- Indecent exposure
- Shoplifting
- Prostitution
- Driving with a blood alcohol concentration greater than 0.08%
How a Defendant Obtains Military Diversion
Your defense attorney will file a motion requesting the pretrial diversion from the trial court after the arraignment and before trial. Your motion should contain:
- A file with records that support your diagnosis or condition
- Letters from VA rep, caseworker, colleagues, and loved ones attesting to your military experience, character, and the trauma experienced.
- A recommended treatment plan by your therapist, medical expert, or psychologist
The court can then assess the matter before making the determination. If it agrees that you are eligible and you consent, you will undergo the military diversion program. Every criminal proceeding will be postponed for two (2) years while you receive treatment.
The court will evaluate whether you should engage in a community or federal-based treatment service program. Generally, preference is given to any program with a history of treating people with trauma as a result of military service, including programs run by:
- The United States Department of Veterans Affairs, or
- United States Department of Defense
If the court orders a mental health treatment service, it can refer you to a county mental health agency, as long as the authority accepts all the following responsibilities:
- Your treatment
- Filing reports to the court
- Coordination of suitable referrals to county veterans service officers
Terms for Military Diversion Participation
You should obey the following conditions ordered by the diversion program or the court:
- Counseling for substance abuse or domestic violence
- Attending treatment sessions
- Attending compulsory court hearings
- Random drug or alcohol testing
- Progress reports prepared by the agency administering your program
The authority responsible for your diversion program should submit your progress reports to the DA and the court every six (6) months.
Will Your Arrest Record be Sealed After Completing the Program?
After completing the treatment program, the court will dismiss your criminal charges. No person can use your criminal record without your consent to lead to denial of a license, certificate, benefit, or employment. You can truthfully respond to your previous criminal history questions that you were not diverted or arrested for the crime.
However, you should disclose your arrest when applying to become a law enforcer. Moreover, the Department of Justice (DOJ) can reveal your record in response to your law enforcer application request.
Find Qualified Legal Representation Near Me
Misdemeanor diversion programs provide an alternative to criminal prosecution where instead of you, the defendant going through the trial, the court diverts your criminal charges. The judge will postpone all proceedings while you undergo treatment. Once you complete the program, the court will dismiss your charges and seal your criminal record as though it never took place. If facing a misdemeanor, it is paramount that you consult with an experienced attorney; you could be eligible for a misdemeanor diversion program under AB 3234, depending on your case facts. Leah Legal is a seasoned law firm fighting for the freedom and rights of defendants in Van Nuys. We can help you determine whether a misdemeanor diversion program is the most effective legal strategy when you hire us. And if yes, ensure you obtain a program with the best possible terms and conditions. Please contact us at 818-484-1100 for a free case review.