A first-time criminal conviction, especially a misdemeanor, may lead to jail, fines, and other consequences, including a permanent record. Courts recognize that many first-time offenders struggle with drug addictions or mental health issues that often contribute to their behavior.
In California, there are pretrial diversion programs for first-time defendants. These programs help these defendants avoid a criminal conviction and prevent reoffending. If you complete a diversion program successfully, the court can dismiss the charges and seal your criminal record. If you do not complete the diversion program, your case will continue.
This blog will look at the different types of special diversion programs available in California that can help protect your reputation, professional license, immigration status, and job.
California’s Special Diversion Programs Explained
“Diversion” refers to programs that help move a criminal case out of the formal justice system. These programs allow qualified defendants to avoid a criminal conviction by completing a program that addresses the problems that caused their arrest, like drug addictions, alcohol abuse, or anger issues.
These programs are commonly known as pretrial diversion programs or pretrial intervention programs. A judge orders a diversion program and requires participants to achieve specific goals or tasks within a set timeframe. Each program fits the individual’s situation, considering the type of crime, criminal history, and personal circumstances.
For example, in a DUI case, a diversion program might ask you to:
- Go to Alcoholics Anonymous meetings
- Take a drunk-driving class in California
- Do community service
- Observe specific license restrictions
A judge can dismiss your case after you finish the program and relieve you of other legal problems. You can also ask to have the arrest record removed after completing a misdemeanor diversion.
This program aims to prevent repeat offenses by keeping non-violent offenders out of jail and helping them stay employed. Since a first-time misdemeanor conviction can significantly affect one's life, the diversion program enables one to remain on track and shows that one does not pose a danger to society.
Diversion programs are not given automatically; your defense attorney must request them as part of your defense plan. You must prove to the court that you qualify for the program.
Typically, diversion programs may include:
- Educational classes
- Rehabilitation
- Counseling
- Support groups
- Restraining orders
- Community service
- Anger management therapy
- Restitution payments
- Curfews
- Programs for veterans
- Mental health programs
If you complete the diversion program, the prosecutor or court will likely dismiss your criminal charges. There will be no conviction on your record or any criminal history. This process occurs “pre-prosecution,” allowing you to enter a diversion program without needing to plead guilty, no contest, or not guilty.
However, if you do not finish the diversion program, most states’ laws declare that your case will proceed as if the diversion never happened. It means the court could charge you for the alleged offense. You might also face a guilty plea, a criminal conviction, jail time, and a criminal record.
The Function of Diversion Programs
Misdemeanor diversion programs serve multiple purposes. They aim to:
- Reduce the number of low-risk cases in busy courts
- Prevent the negative impacts of a criminal conviction
- Help with jail and prison overcrowding
- Assist offenders in resolving the underlying problems that contributed to their actions.
- Lower the rate of repeat offenses
What are the Criteria for Eligibility?
In most jurisdictions, diversion is usually available only for first-time offenders with non-violent misdemeanor offenses. Also, entering a diversion program may require consent from the alleged victim, prosecutor, or judge.
Not every misdemeanor offense qualifies for diversion. The diversion programs are not available for individuals charged with:
- Domestic battery (PC 243(e)(1)).
- Corporal injury to a spouse (PC 273.5).
- Stalking (PC 646.9).
- Any California misdemeanor sex crime that requires registration as a sex offender under PC 290.
Types of Special Diversion Programs in California
California has three main pretrial diversion programs that cater to different defendants based on their charges.
1. Drug Diversion Program Under Penal Code (PEN) 1000
PEN 1000, or the “Deferred Entry of Judgment” (DEJ), offers a pretrial diversion program for simple possession offenses. This program lets non-violent offenders in California receive education and rehabilitation instead of jail time. Since January 1, 2018, the PC 1000 program has been officially recognized as a pretrial diversion program.
You can plead not guilty to qualifying charges and engage in drug treatment. Completing the program will lead to the court dismissing your charges. If you do not complete it, you will be automatically found guilty. You have the right to a trial with a judge or a California bench trial.
You can enter the pretrial diversion program (PEN 1000) for these offenses:
- Possession of a toxic substance for huffing — PC 381.
- Business and professions code 4060.
- Possession of controlled substances — HSC 11350.
- Unlawful possession of cannabis — HSC 11357.
- Possession of paraphernalia — HSC 11364.
- Unlawful activation of cannabis — HSC 11358.
- Aiding and abetting the usage of illegal controlled substances — HSC 11365.
- Using forged prescriptions to acquire medication for personal use — HSC 11368.
- Possession of methamphetamine for personal use — HSC 11377.
- Illegal possession of prescription sedatives — HSC 11375b.
- Being under the influence of controlled substances — HSC 11550.
- Having a container full of marijuana in your vehicle — VEH 23222.
The controlled substances involved include marijuana, cocaine, ecstasy, and heroin.
How Does a Drug Diversion Work
Pretrial diversion programs need to have certain features:
- They must offer free services to participants, and the court and county drug program administrators must find them practical and reliable.
- The county drug program administrator must certify the program, following Chapter 1.5 of Title 8 of the California Penal Code, starting with PC 1211.
You can request a referral to any certified program in any county. A pretrial diversion lasts between 12 and 18 months, but the court may extend this time if there is a valid reason to complete an approved drug treatment program.
The court has the authority to stop your participation in the PEN 1000 pretrial diversion for specific reasons:
- If the court convicts you of a crime that shows violent behavior,
- If you do not complete drug treatment or follow program rules
- If the court convicts you of a felony.
The judge, probation department, or prosecutor can file a motion to end your participation. The court will hold a hearing to decide this matter. If the court finds you guilty of any offenses or you are not meeting program expectations, your original case will proceed.
Qualifying for a Drug Diversion Program
The prosecuting attorney will review the case to see if you are eligible for a drug diversion program. You and your lawyer will receive written notice about your eligibility.
This notice will include:
- A clear outline of the drug diversion program process
- An overview of the duties and responsibilities of the prosecutor, probation department, and court in this process
- A requirement for you to plead not guilty to the accusations
- A waiver of your right to a quick trial or speedy preliminary hearings and jury trial
- Information stating that if you finish the drug treatment and receive positive recommendations from the diversion program authority, the court will drop your charges
- Note that the program can end if you do not follow the treatment rules or commit a new offense that disqualifies you
- Details about your rights regarding your criminal record, how to respond to questions about your arrest, and the drug diversion after completing the diversion program.
The presiding judge may ask the probation officials to look into your situation. The probation official will review factors like your age, past drug use or possession, and your education. Based on this, the probation department will inform the court about your eligibility, and then the court will decide.
2. Mental Health Diversion Under PC 1001.36
In California, Mental Health Diversion (MDC) allows you to receive mental health treatment if you face criminal charges. MDC is a pretrial diversion program described in PC 1001.36. It allows you to delay the case to participate in a treatment program. The presiding judge can order this treatment at any point before your sentencing.
Eligibility for Mental Health Diversion
In California, both misdemeanor and felony defendants can participate in mental health diversion programs. To qualify, you must meet these criteria:
- You have a mental health condition
- Your mental health issue significantly contributed to the crime you are charged with.
- A qualified mental health professional believes you would benefit from treatment.
- You agree to participate in the diversion program and forfeit your right to a quick trial.
- You commit to following the treatment plan as part of the diversion.
- The court believes you will not pose a serious threat to public safety.
To be eligible for PC 1001.36 diversion, you need to have one of these conditions:
- Post-traumatic stress disorder
- Bipolar disorder
- Schizoaffective disorder
- Schizophrenia
You cannot qualify for mental health diversion if you have these conditions:
- Pedophilia
- Antisocial personality disorder
- Borderline personality disorder
You can show you have a mental disorder by providing a recent diagnosis from a qualified mental health professional. The professional may use the following information:
- Arrest reports
- Your examination results
- Your medical records
You must convince the court that your mental disorder was a major factor in the charges you are facing to be eligible for a mental health diversion. Additionally, you can establish this if you showed symptoms of the disorder when the crime occurred. In making this decision, the court will look at all trustworthy and relevant evidence, such as:
- Medical reports
- Records from a qualified medical expert
- Police reports
- Statements from witnesses
- Transcripts from preliminary hearings
- Statements from your mental health treatment provider
3. Penal Code 1001.36 Treatment Period
According to PC 1001.36, mental health diversion lasts up to two years. It may include both outpatient and inpatient care. Before the court approves a rehabilitation program, it may consider:
- The community’s best interests
- The defense’s request
- The defendant’s needs
- The prosecution’s request
Mental Health Diversion Payment
Funding for mental health treatment is available from both public and private sources. If private treatment is too expensive, the judge may direct you to a county mental health agency or a collaborative court. Once you finish the treatment program, the judge will drop your charges. You will complete the program if you meet the following:
- Follow the diversion requirements
- Have a long-term mental health care plan
- Have largely avoided new legal issues not related to your mental health condition.
4. Military Diversion or Veterans Diversion Under PC 1001.81
Active duty military members and California veterans with trauma or mental health challenges can take part in military diversion. This program offers an alternative to jail time for misdemeanor charges against these individuals.
To qualify for military diversion under PC 1001.81, you do not need to plead guilty or no contest. The court can pause the criminal case so you can join an education and rehabilitation program. You should agree to give up your right to a quick trial. The judge will drop your charges once you finish the military diversion program. The criminal case will continue if you do not complete the diversion program.
Eligibility for Veterans Diversion
You may qualify for military diversion if you experience any of the following due to your military service:
- Mental health issues
- Traumatic brain injury
- Post-traumatic stress disorder
- Military sexual trauma
- Substance abuse
You can gather evidence for your condition from these records:
- Separation physicals
- The Department of Veterans Affairs or VA compensation and pension package
- VA records
- Support letters from friends and family
- Letters and citations regarding combat experience and trauma
- A medical evaluation during active duty
- Current medical records and opinions from medical experts
- Letters from mental health professionals and caseworkers.
Typically, military diversion is available only to first-time offenders. Typically, military diversion is available only to first-time offenders. However, if you face charges for a minor, non-violent felony or have a previous conviction for the same offense, the court will direct you to a veteran’s court.
Crimes That Qualify You for Military Diversion
You can qualify for military diversion if you face a misdemeanor charge, including:
- Disturbing the peace — Penal Code 415
- Drunk in public — Penal Code 647f
- Driving under the influence — VC 23152(a) and driving with a BAC of 0.08% — VC 23152(b)
- Drug possession — HS 11350
- Assault — Penal Code 240
- Battery — Penal Code 242
How a Defendant Can Obtain Military Diversion
After the arraignment and before the trial, your defense lawyer will submit a motion to the trial court asking for pretrial diversion. This motion should include:
- Documents that support your diagnosis or condition.
- Letters from your VA representative, caseworker, colleagues, and family members speak to your military background, character, and the trauma you have faced.
- A treatment plan suggested by your therapist, medical expert, or psychologist.
The courts will review this information before making a decision. If the court finds you eligible and agrees, you will enter the military diversion program. The court will delay all criminal proceedings for two years while you receive treatment.
The court will decide if you must join a community or federal treatment program. Usually, the court prefers programs that have helped those with military-related trauma. These include programs managed by:
- The United States Department of Veterans Affairs, or
- The United States Department of Defense
If the court requires mental health treatment, it may send you to a county mental health agency, provided that the agency agrees to take on these tasks:
- Your treatment
- Sending reports to the court
- Coordinating appropriate referrals to county veterans service officers.
Terms for Military Diversion Participation
You must follow these rules set by the diversion program or the court:
- Attend counseling for substance abuse
- Go to treatment sessions
- Be present at required court hearings
- Undergo random drug or alcohol tests
The agency managing your program will prepare progress reports. The authority in charge of your diversion program must send these reports to the DA and the court every six months.
Treatment Options in Military Diversion
Judges will decide if you can join a community-based or federal treatment program. The courts will prioritize programs that have successfully helped defendants with military-related trauma.
You may also join programs run by the U.S. Department of Defense or the U.S. Department of Veterans Affairs. The selected treatment program and the court can work with these departments to improve the services and benefits available to veterans.
Military diversion programs typically last between 12 to 24 months. According to the law, the diversion period for your criminal case cannot exceed two years. Your regular case will continue if you do not complete the military diversion.
Find a Criminal Attorney Near Me
Being arrested for a misdemeanor offense does not always lead to a court conviction. If you qualify for a special diversion program in Van Nuys, you can avoid a sentence, criminal record, potential jail time, and other adverse effects of a criminal charge. A skilled attorney could guide you through misdemeanor diversion programs and assess your eligibility. We at Leah Legal have a highly-rated defense criminal defense team ready to assist you in achieving a positive result for your case. Contact us at 818-484-1100 to speak with one of our attorneys.