Military Diversion

The Definition of Military Diversion

Penal Code (PC) 1001.80 defines military diversion as a special form of pretrial diversion. A Military diversion is a sentencing option that is an alternative to jail time for a misdemeanor conviction against active military members or veterans. You don’t have to enter a no-contest or guilty plea for you to obtain a military diversion. Instead, what happens is that the court postpones the proceedings while you participate in an education and treatment program.

After completing the education and treatment program, the charges you are facing will be dropped. If you fail to complete this program, the court will resume the criminal proceedings against you. Also, California offers a similar program of mental health diversion whereby a participant can also have his/her charges dropped and their criminal record sealed.

Conditions that Qualify a Defendant to Join Military Diversion Program

You may be eligible for military diversion in case, because of your military service, you suffer from:

• Military sexual trauma
• Substance abuse
• Traumatic brain injury (TBI)
• Mental health issues
• Post-traumatic stress disorder (PTSD)

The problems mentioned above must have occurred due to your military services. Also, note that military diversion option is usually available only to first offenders.  In case you have been previously convicted of the same crime you are facing now, you will be sent to a Veteran’s Court. This court provides a higher level of structure as well as supervision compared to military diversion. We shall discuss it in detail later in the article.

As we said earlier, a military diversion program will be an option for you only if you are facing misdemeanor charges. Typical misdemeanor crimes that affect veterans or military members include but not restricted to:

• DUI
• Misdemeanor assault & battery
• Narcotic possession

There is usually a process involved for you to be approved for military diversion. First, your criminal defense lawyer has to request the court if it could get the diversion. Then, the court might or might not require doing an evaluation to assist it in reaching a decision. In case the court approves that you are eligible, and provided you consent, you’ll be put in a pretrial military diversion program. Then, criminal proceedings against you will be suspended for not more than two years as you receive treatment.

Treatment Programs You Can Use

The judge evaluates whether you ought to be directed to join a community or federal-based treatment program. Preference is given to those treatment programs with a track record of effectively treating persons suffering from trauma because of their military services. Examples of these programs are those run by the U.S Department of Veterans Affairs or the U.S Department of Defense. The treatment program you are ordered into, and the court may team up with the U.S Department of Veterans Affairs to maximize services and benefits provided to veterans.

If you are ordered to undergo treatment for mental health, the court might also refer you to a reputable mental health facility in the county. This is provided the facility is willing to accept accountability for:

• Your treatment
• Filing of progressive reports in court
• Coordination of suitable referral to veterans service officers in the county

Other Terms for Participation       

You have to comply with all conditions the diversion program you are assigned, or the court imposes. These conditions include, among others:

• You have to attend treatment sessions
• You must undergo counseling for substance abuse or domestic violence (as appropriate)
• You have to agree to random drug/alcohol testing
• The agency running the program must prepare progress reports

The agencies/agency running your assigned program will give the reports on your progress to the prosecutor and court not less often than after every six months. Generally, any military diversion program lasts twelve to twenty-four months. As the law provides, criminal court proceedings against you can only be postponed for a maximum of two years.

Note that military diversion can be terminated before you complete it. As earlier mentioned, the responsible agencies or agency will be filing reports with the prosecuting attorney and court on your progress at least after six months. After the court goes through the reports, it might, at any point, convene a hearing should it appear that:

• You aren’t performing satisfactorily in that program, or
• You aren’t benefiting in any way from the services and treatment the military diversion program provides

If the judge determines that the treatment isn’t working, he/she may end the diversion, then resume the criminal court proceedings against you.

Your Arrest Record Will Be Sealed Should You Complete Your Military Diversion Program

After you complete your treatment program, the charges against you will be dropped.  When this happens, no authority or person may use your record of diversion or arrest without your permission in any manner that could cause a denial of benefits, certificates, licenses, or employment. Therefore, when responding to any question concerning your previous criminal record, you can honestly indicate that you weren’t arrested or ordered into a diversion program for the crime.

However, we have an exception when you’re applying to be a peace enforcement officer. Here, you must disclose that you were arrested when answering the direct question in the application or questionnaire for the position of a peace enforcement officer. Also, the Justice Department may disclose the record in reply to your application request.

Also worth noting is that if you were arrested for drunk or drugged driving and your license got suspended, it will not necessarily be returned after you have completed the program. Even though military diversion covers misdemeanor DUI offenses, completing the diversion program doesn’t prevent the DMV from taking administrative actions. One of these actions includes suspending your license.

PTSD Can be a Legal Criminal Defense

In an applicable case, a criminal defense lawyer can raise post-traumatic stress disorder as a valid defense to an offense. A PTSD defense falls within the insanity defense. Also, an attorney can raise PTSD as proof of mitigation. Even though mitigation is not a complete defense, it may help you receive a lenient treatment, especially during felony sentencing.

• PTSD as an insanity defense

You can enter a not guilty plea on the grounds of insanity. That is, your attorney can argue that you committed the offense when you were legally insane. For a defendant to be considered legally insane, it means that during the commission of the crime, he/she:

• Didn’t comprehend the nature of his/her act
• Couldn’t distinguish between what is right or wrong

You have to prove that you were insane by a preponderance of the evidence. By this, it means that you have to make the jury think it’s more likely than not that you were insane during the commission of the offense. If you successfully show this, then you will be taken to a mental hospital where you will be committed and receive treatment rather than going to prison.

• PTSD as evidence of mitigation

Even if post-traumatic stress disorder cannot be applied as a valid defense under the context of insanity, it may still be used as mitigation proof. When used as evidence of mitigation, you will have to prove that due to emotional trauma, you shouldn’t be blamed for your conduct. You should show that you would have acted otherwise were it not for the trauma. After this argument, the court may be persuaded to sentence you to reduced jail time. Or, it may sentence you to a treatment program or probation instead of jail.

Post-Conviction Treatment In Lieu of Jail (PC1170.9)       

PC 1170.9 and PC 1001.80 are similar. The only difference between these two is that PC 1170.9 applies after the defendant in question has entered a guilty or no contest plea to an offense or the court has found him/her guilty. Like PC 1001.80, PC 1170.9 permits the court to convict veterans or active military members to treatment in lieu of jail or prison. Also, the offense must have been as a result of TBI, sexual trauma, PTSD, mental health issues, or substance abuse arising because of their serving in the U.S military.

Before, PC 1170.9 was limited only to combat military veterans. However, in 2010, this law was amended to get rid of the requirement to be a combat veteran.  PC 1170.9 works in a way that if you fall within it, a hearing has to be held to determine if you are eligible. If the court rules that you qualify for the alternative sentencing, you will then face a treatment program sentence instead of prison or jail.

Treatment programs under Penal Code 1170.9 last for a duration that doesn’t surpass that which you would’ve spent in custody. Certain defendants get sentenced to probation under PC 1170.9 and ordered to enroll in a residential program of treatment. If this happens to you, you will receive sentence credits for the actual period you spent in that residential treatment.

For you to be eligible for enrolment into a treatment program under PC 1170.9, you have to qualify for a probation sentence. Due to this requirement, Penal Code 1170.9 isn’t an option in certain types of cases. For instance, cases that involve violent felony offenses and serious felonies in California do not carry a probation sentence as a punishment. As a result, these crimes won’t apply under PC 1170.9.

Even if you technically qualify for probation, alternative sentencing under Penal Code 1170.9 isn’t an option unless the court actually sentences you to probation.

Veteran’s Courts

Recently, several court systems in California counties have established special veteran’s courts. Examples of court systems that instituted veteran’s courts include the Superior Courts in San Bernardino, Orange, Los Angeles, and Ventura Counties. The design of veteran’s courts is similar to that of any other collaborative court, for example, homeless court and drug court.  These courts strive to resolve fundamental problems like mental health problems and substance abuse that result in crime, to begin with. Veteran’s courts and military diversion are similar, but veteran’s courts provide quite a higher magnitude of supervision and structure.

Generally, veteran’s courts only take on nonviolent offenders. But, the Combat Veteran’s Court in Orange County, which is also the first one of its type in California, takes on violent offenders sometimes.

How Veteran’s Courts Work

After a veteran has been admitted into the court’s program, he/she is allowed to have a group of participants. These participants include the judge, defense attorney, Veterans Administration caseworker, and prosecutor. These team members are supposed to work together on designing ways and assisting the veteran in question through an all-inclusive treatment plan. If the veteran completes the program successfully, his/her charges are usually dismissed under PC 1170.9. 

Another critical point to note is that the veteran might have the mechanisms to cope and systems to support them. These may enable them to productively and positively mingle with mainstream society.

Alternative Sentences for Felony Charges

Even if you aren’t facing misdemeanor charges, you may still get relief for the felony charges against you. Under PC 1170.9, one may be eligible for an alternative sentence when facing DUI charges or a felony. 

California law dictates that any former or current member of any branch of the United States Military who might be suffering from the following

• TBI
• PTSD
• Military sexual trauma
• Mental health issues, or
• Substance abuse due to their military services and get charged with an offense are entitled to an alternative sentence.

In Los Angeles, the veteran’s court that has been established allows several felonies and DUI charges that qualify to be accorded special treatment. The veteran’s court program is an intense one and requires a full commitment. However, if the defendant is successful, his/her charges will be reduced, and the case may even be dismissed.

Here are a few of the advantages of participating and completing a veteran’s court program:

• You will have a higher chance of getting probation
• The felony charges you are facing may be reduced to a misdemeanor
• Receiving treatment in lieu of jail or prison time for given crimes
• Probation conditions may be considered satisfied early (except for restitution), and probation may be terminated earlier than expected
• A veteran’s court program may permit the court to dismiss penalties, restore your rights, or vacate the conviction for given crimes

Is Military Diversion Program the Best for You?      

It is no doubt that military diversion programs are a useful tool for several members of the military, including veterans. However, before you decide if the diversion is the right option for you, have to consider a few things. These include the facts of the charges against you, proof you or the prosecution has, and your past criminal history. In certain cases, diversion might not be the best for you.

At Leah Legal, before advising you on what to do, we will first do a comprehensive investigation to determine whether military diversion is appropriate for alternative sentencing. We will employ proactive measures to assist you in determining the required steps that will prevent you from having a conviction on your record. Reach out to us for a consultation where we will discuss whether or not a military diversion program is the best option for your situation.

Find a Military Criminal Defense Attorney Near Me

As we have seen, you don’t automatically qualify for military diversion until you have proven yourself before the court that you deserve it. The best person to help you do this is a criminal defense attorney. The lawyer you choose may be the difference between getting the treatment you need and going to jail/prison. Apart from getting treatment, your arrest record will be sealed once you complete your assigned military diversion program successfully. If you are a military member or veteran in Los Angeles and have been arrested, call Leah Legal at 818-484-1100. Our attorneys will evaluate your case and inform you whether or not you qualify for military diversion.