What is Military Pre-Trial Diversion?

Pursuant to Penal Code section 1001.80, a defendant who is charged with a misdemeanor offense and (1) was, or currently is, a member of the United States military and (2) 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 may qualify for a pre-trial diversion program. (Cal. Penal Code section 1001.80(a)(1)-(2)).

According to Section 1001.80(k)(1), pre-trial diversion is “the procedure of postponing prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication.” For military pre-trial diversion, a qualifying defendant is ordered to participate in a federal or community-based treatment service program. These programs should have a demonstrated history of specializing in the treatment of mental health problems, “including substance abuse, post-traumatic stress disorder, traumatic brain injury, military sexual trauma, and other related health problems.”

The agency providing treatment to the diverted defendant must generally file reports to the court and the prosecutor not less than every six months demonstrating the defendant’s progress in the diversion program. The period of diversion should be no longer than two years. (Cal. Penal Code section 1001.80(h).

In 2017, the Legislature further amended Penal Code section 1001.80 to include misdemeanor violations of Vehicle Code section 23152 or 23153 as offenses eligible for the diversion program.

Upon successful completion of the military diversion program, “the arrest upon which the diversion was based shall be deemed to have never occurred.” Further, the defendant can indicate in a response to a question regarding his or her prior criminal record that “he or she was not arrested or diverted for the offense,” except under certain circumstances.

Military pre-trial diversion is a great resolution of a criminal case.


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