Military diversion serves as an alternative to jail time. It’s a unique form of pretrial diversion. This diversion is offered to active members or veterans of the military. A defendant does not have to plead guilty to an offense or take a no-contest plea to be eligible for the military diversion under the California PC 1001.80. As the defendant takes place in the diversion, the judge postpones all proceedings against the defendant. When a defendant completes the military diversion program, the court suspends all the charges filed against him or her. If you are a veteran or an active member of the military and you are facing misdemeanor charges, Orange County Criminal Defense Attorney Law Firm can guide you regarding the military diversion program.
Qualifying for Military Diversion Program in California
For you to qualify for the military diversion program, you must have been a member of the military. You could also be an active member of the military. You could qualify for the military diversion program if you’re suffering from:
- Traumatic brain injuries
- Military sexual trauma
- Post-traumatic stress disorder
- Mental health issues
- Substance abuse
For you to qualify for the military diversion program, the problem you suffer from must have arisen from your service in the military. It’s also important to note that the military diversion program is only available for first-time offenders. If you have a prior conviction for the same crime, you will get a referral to the Veteran's court. Compared to military diversion, Veteran's court offers a higher level of supervision and structure.
Post-traumatic Stress Disorder
Commonly abbreviated as PTSD, post-traumatic stress disorder refers to a mental condition often experienced by people who have experienced a traumatic occurrence like assault and violence. Some people may experience trauma and still not develop PTSD. However, when some people go through a challenging moment, they develop serious mental issues.
Some people develop acute stress disorder (ASD) after going through a traumatic experience. ASD consists of severe or extreme symptoms that last for several weeks. However, if the symptoms do not fade after a few days, you could be suffering from PTSD. You can tell that you’re suffering from post-traumatic stress disorder if your symptoms:
- Persist for more than one month
- Affect your ability to function normally
- Are not due to another underlying medical illness, substance use, or another traumatic event
How can you tell that you’re suffering from post-traumatic stress disorder? You can know that you have PTSD if you start experiencing symptoms within three months of going through a traumatic experience. However, in some instances, post-traumatic stress disorder symptoms may set in many years after you have undergone a traumatic experience. When diagnosing a person with PTSD, a doctor may look out for:
- Re-experiencing symptoms
- Avoidance symptoms
- Arousal and reactivity symptoms
- Mood and cognition symptoms
Re-experiencing symptoms refer to factors that remind you of the past traumatic experience. Some of the common re-experiencing symptoms include bad dreams, flashbacks, and frightening thoughts.
Avoidance symptoms involve avoiding places, events, or things that remind you of the past traumatic experiences. In addition to staying away from events, places, and objects that remind you of the past, you may also avoid feelings and thoughts that are related to the past traumatic experience.
Reactivity and arousal symptoms may be present if you are always tense or feeling beat or on edge. People with arousal symptoms are easily startled. You could also have a hard time falling and remaining asleep. It’s also common to experience angry outbursts from time to time.
Mood and cognition symptoms mainly involve having negative thoughts about the world or yourself. You may also experience trouble trying to remember the key features of the traumatic event. You may continuously experience feelings of blame, guilt, and other distorted feelings. People with mood and cognitive symptoms often lose interest in participating in fun activities.
After going through a traumatic experience, it’s normal to experience a certain level of anxiety or fear. Most people who experience trauma do not develop PTSD. However, some people are at a higher risk of developing PTSD than others. People who are most susceptible to PTSD are:
- People who have faced trauma in their childhood
- People with little or a weak social support
- People with a history of substance abuse or mental illness
- People who have another source of stress like the loss of a loved one, job loss, or loss of a home
The Meaning of Military Sexual Trauma
According to the Department of Veteran Affairs (VA) in the U.S, military sexual trauma is a psychological trauma that may result from a physical assault of a sexual nature. The trauma could also occur from sexual harassment or battery of a sexual nature. The sexual trauma must have occurred while the Veteran was in active duty, inactive duty training, or active duty for training.
Department of Veterans Affairs further defines sexual harassment as repeated or recurrent physical or verbal contact of a sexual nature. To qualify as sexual harassment, the contact must be threatening in nature.
Some of the acts that may qualify as military sexual trauma are:
- Penetration with an object
- Forced oral copulation
- Coerced sex
- Offensive remarks or threatening remarks about a person’s sexual activities or body parts
- Unwelcome or threatening sexual advances
An occurrence may qualify as military sexual trauma irrespective of whether it occurred when a service member was off duty or the base. If the service member was still in active duty of training or on active duty, the trauma qualifies as military sexual trauma.
Meaning of Traumatic Brain Injury
Commonly abbreviated as TBI, traumatic brain injury refers to a cognitive impairment that occurs due to a jolt or a violent blow on the head or the body. A traumatic brain injury may occur if a bullet penetrates the brain tissue. The trauma may also occur after being hit by an object or after a fall. An explosive blast could also lead to a traumatic brain injury. If a pressure wave passes through the brain, it may disrupt brain function. Other leading causes of traumatic brain injuries include vehicle accidents, blasts, collisions with objects, severe blows on the head, and penetrating wounds.
How can you tell that you are suffering from traumatic brain injuries? Signs of traumatic brain injury include loss of sensation and coordination, headaches, and dizziness. You could be suffering from TBI if you often experience emotional and cognitive difficulties.
The signs of TBI may occur immediately after undergoing a traumatic event. The symptoms may also occur days or weeks after experiencing a traumatic event. Military members suffering from traumatic brain injuries may experience a wide range of emotional problems and frustrations. The victims may also have a hard time getting along with their families and other military members.
It’s common for people suffering from traumatic brain injuries to resolve substance abuse, depression, and other mental health problems. It’s often problematic for people suffering from TBI to cope with their issues.
Traumatic brain injuries could have long-term problems that include:
- Memory issues
- Learning problems
- Poor reasoning
- Poor judgment
- Lack of concentration of a short attention span
- Decision-making and problem-solving problems
- Poor planning and organization
- A hard time beginning and completing tasks
- Poor communication and language
- Constant anxiety
- Lack of self-control
- Mood swings and irritability
Other than people suffering from PTSD, TBI, or sexual trauma, military diversion may also be available to people suffering from:
- Severe depression and other mental health issues
- Substance abuse
However, the court must take time to determine whether the condition resulted from your military service. Before recommending the military diversion program, the court will also decide whether or not you’ll benefit from the military diversion program.
Offenses or Crimes that Qualify for Military Diversion
The military diversion program is available to eligible defendants facing misdemeanor charges. Some of the common misdemeanor offenses committed by veterans include California DUI offenses, misdemeanor assault, battery charges, and narcotics possession.
What is the process of getting a military diversion in California? Your attorney requests a diversion from the court on your behalf. For the court to decide, the court may order an assessment to determine if you have a mental health issue. You will be placed in a pretrial diversion program as long as the court agrees that you qualify. You also have to consent to the placement in a pretrial military diversion program. As you receive treatment, the court may postpone the criminal proceedings up to two years.
Available Treatment Programs
The court will conduct an assessment to determine whether you should be placed in a community or a federal treatment service program. The court will give preference to treatment centers with a history of treating individuals successfully. The United States Department of Veteran Affairs or the U.S. Department of Defense operates most of these programs. However, the court may also recommend alternative treatment centers.
To maximize the services and benefits offered to a veteran, the treatment program may collaborate with the Department of Defense, the court, and the Department of Veteran Affairs. The court may also order mental health treatment services. In this case, the court may refer the defendant to a county mental health facility. The county mental health authority must accept to file regular reports to the court. The agency must also embrace the treatment of the defendant. The treatment center must also accept to coordinate appropriate referrals to a veterans service offender.
Other Conditions for Participating in a Military Diversion Program
For you to participate in a military diversion program instead of jail time, you have to be willing to comply with all the conditions imposed by the court. You also have to comply with all the requirements imposed by the military diversion program. The conditions that you have to comply with include:
- Attending all the treatment sessions
- Undergoing counseling for substance abuse or domestic violence
- Drug testing or random alcohol testing
- Satisfactory or positive progress reports from the military diversion agency responsible for administering the treatment program.
As you take part in a military diversion program, the responsible agency will file your progress report with the prosecutor or the court. The treatment center or agency has to file regular reports. The agency must not go beyond six months before filing a report regarding your progress.
The Length of the Treatment
How long will you take at the military diversion program? In most cases, a military diversion program lasts between 12 and 24 months. According to the law, the period during which the proceedings filed against you will be diverted should not be more than 24 months.
The court may terminate the military diversion program before completion. The court may decide based on the reports submitted by the agency to the court or the prosecutor regarding the defendant's progress.
The court may hold a hearing before completing the military diversion program if it’s evident that you're performing unsatisfactorily in the program. The court may also have a hearing if it’s apparent that you're not benefitting from the treatment program.
If the court determines that the treatment program is not working, the court may terminate the military diversion program instead of filing criminal charges or proceedings against you.
Sealing of a Criminal Record After Completion of a Military Diversion Program
After completing the military diversion program, the court dismisses all the criminal charges against you. After the dismissal of your charges, no one can use your arrest record or the diversion against you without your consent. No one will use your past criminal records in a way that could result in denial of benefits, employment, certificate, or license.
After the criminal record sealing, you can confidently respond that you were never arrested and that you have never participated in a diversion program for an offense. However, there is an exception to this privilege. If you’re applying to become a peace officer, you must disclose your past arrest despite your criminal record's sealing. You have to disclose your record while filling the application or questionnaire for a peace officer position.
The Department of Justice may also disclose your sealed criminal record in response to a peace officer application request.
Completion of Military Diversion and Your Driver’s License
The court may recommend a military diversion program after you commit a misdemeanor DUI offense. Simultaneously, the California Department of Motor Vehicles may suspend your driver's license after you commit a misdemeanor DUI offense. Successful completion of the military diversion program will not lead to your driver's license's automatic reinstatement.
Even if military diversion is available for misdemeanor DUI offenses, completing the diversion program does not limit the DMV's authority to take actions like suspending your driver's license. Therefore, even after completing the military diversion program, you would have to meet the conditions set by the California DMV before the reinstatement of your driver's license.
Post-Traumatic Stress Disorder as a Legal Defense
Your attorney may be able to use post-traumatic stress disorder as your defense. This defense will only apply if the crime in question falls within the California insanity defense. PTSD may also act as a mitigating factor that could make the court reduce your charges. Even if post-traumatic stress may not act as a complete defense, it could help you receive a court's lenient judgment.
If you committed a crime while you were legally insane, you might plead not guilty based on the insanity. The court may consider you to be legally insane if you did not know the nature of the offense or if you couldn't differentiate between right and wrong at the time of committing the offense. You need to prove through a preponderance of the evidence that you were insane at the time of committing the crime. This means that you have to convince the judge beyond a reasonable doubt that you were insane when you committed the offense. If it’s evident that you were not aware of your actions, the court may place you in a mental health treatment facility instead of jail.
You should note that it’s challenging to win a case based on the insanity defense. In 2008, an army officer from Northern California was found not guilty based on the insanity defense. The army veteran who was suffering from PTSD committed an armed robbery in a pharmacy. The Veteran stated that he was traumatized by his experiences while serving in the army. He used to guard mass graves in Bosnia. The Veteran also cited trauma from shooting a teenager during a drug raid in Honduras. Following an injury, the Veteran became addicted to painkillers. When he committed the pharmacy robbery, the Veteran was trying to access narcotics to enable him self- medicate.
The post-conviction treatment, instead of jail time outlined under the California PC 1170.9, is almost similar to the military diversion program. However, this program comes after the court finds you guilty or when you plead guilty or no contest to an offense. Just like the military diversion program, the post-conviction treatment under PC 1170.9 allows judges to recommend treatment for military veterans instead of jail time.
For the court to recommend post-conviction treatment, the offense must have resulted from sexual trauma, PTSD, substance abuse, traumatic brain injury, or other mental issues resulting from the army's service.
In the past, the treatment under PC1170.9 was limited to combat veterans. However, after the amendment in 2011, the law eliminated the combat veteran requirement. Before the court recommends post-conviction treatment for a defendant, the court has to determine whether the program is eligible. If the court determines that a veteran is eligible for the treatment program, the court recommends the treatment instead of jail time.
The period spent while undergoing treatment under PC1170.9 must not last longer than the defendant's time in custody. For you to qualify for the post-conviction treatment under PC1170.9, you must be eligible for probation in California.
The treatment under PC 1170.9 is not available for certain offenses in California. Serious or violent felony crimes don’t qualify for probation, and neither do they qualify for the post-conviction treatment under PC 1170.9.
The court can’t recommend post-conviction treatment for offenses that would not qualify for probation. For instance, you would not qualify for the post-conviction treatment if convicted of a crime like Watson's murder or DUI second-degree murder. Offenses like DUI causing injury under California VC 23153 may also render you ineligible for the post-conviction treatment program.
For the court to recommend military diversion or post-conviction treatment instead of jail time, the court must believe that you committed the offense because of PTSD or any other mental issue resulting from serving in the military.
Veteran’s Courts in California
Veteran courts function in the same way as other collaborative courts like the homeless court and the California drug court. The courts aim at solving underlying issues like mental health issues and substance abuse problems. After all, the underlying issues propel a defendant to commit a crime. The Veteran's courts are almost similar to the military diversion programs. However, they provide a higher level of supervision and structure.
The Veteran’s courts only deal with people who have committed nonviolent crimes. However, certain Veteran’s courts take violent offenders as well. How do the Veterans’ courts work in California? After you’re accepted into the program, you will have a team of participants, including the prosecutor, the judge, and a caseworker. This team will work together and help you get through a comprehensive treatment plan. Successful completion of the treatment program will lead to the suspension of all the charges filed against you.
The most important part is that you will have a good support system to help you reintegrate into society after the dismissal of the charges.
Find an Orange County Criminal Defense Attorney Law Firm Near Me
Are you a veteran or an active army member-facing misdemeanor charges in California? There’s an alternative to jail time for your offense. Your criminal defense attorney may recommend a military diversion program instead of jail time. The court is more likely to grant the military diversion if you committed the offense due to mental health issues resulting from your time in the army. The Orange County Criminal Defense Attorney Law Firm can advise you regarding the military diversion program and help you apply for the program. Contact us at 714-740-7848 and speak to one of our attorneys.