Purpose Behind Military Diversion
Pretrial diversion is the process of temporarily or permanently suspending a prosecution. The suspension may occur at any point of the judicial process until adjudication has occurred. Military diversion was established to help active duty military members and veterans facing misdemeanor charges, and who may be suffering from trauma, mental health issues or substance abuse, as a result of their military service. Military diversion offers these defendants the opportunity to suspend the criminal proceedings against them and enter a diversion program. In exchange, the court will impose conditions on the diversion program that will require the defendant to participate in treatment programs to address their underlying service related issues.
Understanding Penal Code Section 1001.80
In consideration of the service-related trauma suffered by military members, California has established a military diversion program under Penal Code section 1001.80. Under this law, “pretrial diversion shall apply whenever a case is before a court on an accusatory pleading alleging the commission of a misdemeanor offense, and the defendant was, or currently is, a member of the United States military and the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service.”
Basically, to be eligible for pretrial diversion, the defendant must:
- Be charged with a misdemeanor or misdemeanors only;
- Be a current or former member of the United States military;
- Be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service;
- Consent to being placed on Military Diversion and waive his or her rights to a speedy trial;
- Not have been granted Military Diversion for any other case.
Military Diversion Process
How does a defendant obtain military diversion?
By seeking the advice of an experienced military diversion attorney who will file and serve a motion for military diversion pursuant to California PC section 1001.80.
What supporting evidence should be included in the petition for military diversion?
The defendant will need to provide his or her DD214 form to show proof of military service and an assessment by a mental health professional that shows the defendant’s mental health condition. The assessment may be done by the VA Regional Center, Health Access Clinic, or Substance Abuse Recovery and Rehabilitation Program.
What happens when the court receives the petition for military diversion?
The defendant will be required to waive his or her right to a speedy trial in order to enter a diversion program. Upon doing so the court will suspend the proceedings against the defendant and vacate future hearings previously set. The court will set a date for on the Military Diversion calendar to hear the merits of the petition. The court will send a notice of the new hearing date and a copy of the defendant’s petition to the prosecuting agency in the defendant’s case.
What happens at the hearing for military diversion?
The defense will argue the Motion for Military Diversion and present a proposed treatment plan for the defendant from the program providers that were recommended in the initial assessment. The defendant should also be prepared to answer question from the court regarding his or her military experience. The prosecuting agency in the case will be given an opportunity to respond in opposition.
What happens if the court decides the defendant is not eligible for military diversion?
The defendant’s request for military diversion will be denied and all previously vacated dates will be reset for the court to resume criminal proceedings against the defendant.
What happens if the court decides to grant the defendant’s request for military diversion?
The court will impose the conditions of the diversion program, ordering the defendant to complete a treatment program to treat their underlying service related issues.
How long will military diversion last?
Local treatment program could last anywhere from six months to two years. The court will grant diversion for a period not to exceed two years.
How will the defendant’s progress be measured?
The defendant will be subject to random drug and alcohol testing by the treatment provider. Treatment providers will also submit written progress reports every 90 days to the court. The court will set dates for review hearings for the defendant to show his or her compliance with the court’s conditions.
Who will determine the defendant’s progress?
The court will oversee defendant’s performance and determine if he or she is performing unsatisfactorily or satisfactorily.
What type of diversion programs are available?
The military diversion program will use existing resources available to current or former military members to treat their underlying service related mental health issues. Defendants will be able to participate in federal, county, community or VA treatment programs. Some of these services include PTSD counseling, domestic violence educational classes, anger management therapy and substance abuse treatment.
What happens upon the defendant’s successful completion?
The court will dismiss the criminal charges against the defendant and the Department of Justice will be notified of the disposition of the case.
What happens if the defendant is performing unsatisfactorily?
The court will hold a hearing to determine whether or not to end treatment and resume the criminal proceedings against the defendant. If the court decides to resume the proceedings, the defendant’s case will go back to the originating court.
If you are facing criminal proceedings and are a veteran or currently in the military and suffering from PTSD, substance abuse, anger management, or other mental health issues as a result of your military service, you may be the perfect candidate for military diversion. Do not allow the criminal proceedings against you to go any further until you speak with an experienced military diversion lawyer. Attorney Vik Monder is ready to provide you with important information on how to divert your case and avoid a criminal record at all costs.
Contact San Diego Military Diversion Attorney Vik Monder for a FREE consultation today at: 619-405-0063