HOW CAN MILITARY DIVERSION HELP ME?
First off, if you are currently serving or a veteran of our Armed Forces, thank you for your service. And good news, the California Legislature has also created a law designed to recognize the challenges you face in the civilian world and reward you for serving your country. If you qualify and are granted Military Diversion, upon completion of the program, the case will be dismissed and deemed “never to have occurred”, with some specific Exceptions.
WHO QUALIFIES FOR MILITARY DIVERSION?
- You must be charged with misdemeanors only;
- You must be a current or former member of the US military (Army/Navy/Air Force/Marines, and I've even had a Coast Guard member granted diversion)
- You must be diagnosed by a medical treatment provider (usually the VA, but any doctor or therapist may qualify) with:
- Sexual trauma;
- Traumatic brain injury;
- Post Traumatic Stress Disorder (PTSD);
- Substance Abuse; or
- Mental Health problems
As a result of military service.
HOW DO I APPLY FOR MILITARY DIVERSION?
You (or better yet, me on your behalf) can file a Request for Military Diversion (CRM-284) at an early stage in the proceedings. Note that I prefer to review the reports completely, to ensure a case could be proven against you before even considering Diversion, as fighting for a dismissal is always preferred. However, if it looks like they have a reasonable case, Diversion is a great way to “earn” a dismissal.
Once the Request is filed, the court vacates any pending dates and sets the matter for the Military Diversion calendar. In Vista, these are heard in Department 14 on Mondays only.
At least 15 days prior to the hearing, the Defendant must file and serve on the Court and DA a motion arguing the eligibility for Diversion, including a defendant's service history, mental assessment and proposed treatment program. The prosecution may file a motion in opposition, and serve on your attorney prior to the hearing.
WHAT HAPPENS AT A HEARING FOR MILITARY DIVERSION?
The court will review the medical assessment, the connection with the alleged crime, and the proposed treatment program. If the court determines a defendant eligible for diversion, it will grant diversion for a period not to exceed two years, and impose conditions of program, such as ordering participation in the treatment programs, as well as set review hearings to monitor progress of that treatment. A final date will include a referral to determine if the goals were met, and upon proof of successful completion of the program, the court will order the matter sealed and dismissed.
HOW LONG IS THE PROGRAM AND WHAT TYPES OF TREATMENT ARE REQUIRED?
Military Diversion is intended to be no shorter than one year, and no longer than two years.
DUI Military Diversion: California recently amended the Diversion statute to specifically include DUI cases for diversion. If granted diversion, a court will normally require drug and alcohol counselling as a condition of diversion, which is very similar to conditions of probation if you were to be convicted.
Domestic Violence (DV) Diversion: The court will often order the same or similar Domestic Violence Recovery Program (DVRP) that is also required of those convicted of DV charges, as well as a stay-away order from the alleged victim.
Although these programs are similar to terms of probation if you were convicted, the obvious benefit of completing them through diversion is that the matter will be dismissed without ever suffering a conviction.
WHAT HAPPENS IF I FAIL TO COMPLETE THE DIVERSION PROGRAMS?
If the court determines the defendant is performing unsatisfactorily, the court can set a hearing to determine if diversion should be terminated and criminal proceedings reinstated.
WHAT DO I GET FOR SUCCESSFULLY COMPLETING MILITARY DIVERSION?
- At the end of the specified period, upon satisfactory completion of programs ordered, the court will dismiss the criminal charges.
- The arrest will be deemed to have never occurred, except that (1) the Department of Justice (DOJ) will be notified of the disposition of the case; (2) the arrest upon which the diversion was based may be disclosed by DOJ in response to a peace officer application request; and (3) the defendant is still obligated to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Pen. Code §830.
DO I NEED A PRIVATE ATTORNEY TO GET MILITARY DIVERSION?
It certainly helps to have a professional evaluation of your case to first determine if there are available defenses or motions, such as to suppress evidence illegally obtained, of if the case is likely winnable at trial. If not, then determining the appropriateness of Military Diversion, combined with drafting a persuasive motion, and assistance in obtaining the proper supporting documentation, makes a competent, local attorney an excellent investment in protecting your future.