Until now, diversion for military and veterans has been limited to misdemeanor cases. However, beginning in 2025, a change in the law allows military and veterans diversion for felony cases. California Senate Bill 1025 amended Penal Code section 1001.80 to make most felony cases eligible. The new law took effect on January 1, 2025.
California has several diversion options for criminal cases. The legislature recently expanded military veterans diversion to include felony cases.
Military Veterans Diversion Requirements
The requirements to qualify for diversion include convincing the court that:
- The defendant was, or currently is, a member of the United States military.
- The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or a mental health problem as a result of their military service, and the defendant’s condition was a significant factor in the commission of the charged offense.
In making the second determination as to whether the diagnosed condition was a significant factor in the charged offense:
(B) The court shall find that the defendant’s condition was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
(C) A court may consider any relevant and credible evidence, including, but not limited to, a police report, preliminary hearing transcript, witness statement, statement by the defendant’s mental health treatment provider, medical record, or record or report by qualified medical expert, that the defendant displayed symptoms consistent with the condition at or near the time of the offense.”
Eligibility
Some charges are not eligible for diversion. The statute lists these in subdivision (o):
(1) Murder or voluntary manslaughter.
(2) An offense for which a person, if convicted, would be required to register pursuant to Section 290, except for a violation of Section 314.
(3) Rape.
(4) Lewd or lascivious act on a child under 14 years of age.
(5) Assault with intent to commit rape, sodomy, or oral copulation in violation of Section 220.
(6) Commission of rape or sexual penetration in concert with another person in violation of Section 264.1.
(7) Continuous sexual abuse of a child in violation of Section 288.5.
(8) A violation of subdivision (b) or (c) of Section 11418.
If the government charges you with violation of one of these laws, you will not be eligible for military veterans diversion. However, there may be other good defenses to your case.
Impact of Military Veterans Diversion
For many years, we have been using military veterans diversion as a way to get treatment rather than criminal punishment for people who have served our country. We have enjoyed particular success in misdemeanor DUI cases. This law applies to both current active duty members of the military, as well as veterans. Our firm has used this law to get dozens of misdemeanor criminal cases dismissed. Now, we can also apply for diversion in felony cases.
How to Apply for Diversion
If you believe that you meet the requirements, there is a process to ask the judge to grant diversion in your case. First, you’ll need to make sure your case qualifies. There are some charges that are still ineligible (see above). Second, you need to get an evaluation from a qualified evaluator. You can use the VA for this, or a private mental health professional. We prefer to use a private evaluator so that the results do not become part of your permanent VA file.
With the diagnosis, we need a treatment plan. A treatment plan provides guidance for the court to order appropriate terms to treat the diagnosed condition.
Once we have a report from an expert with a diagnosis and treatment plan, we file a motion with the court for military veterans diversion. Then, we appear at the hearing and argue the motion. At oral argument, we discuss the client’s history and diagnosis, as well as an appropriate treatment plan.
This is pre-plea diversion. So, there is no conviction, no guilty plea, and no finding of guilt. The case remains open while the defendant completes the terms. If the defendant fails in diversion, the case is back on track for trial. There is no harm or danger in applying for military veterans diversion.
Case Dismissed!
When the judge grants diversion, they lay out a treatment plan for up to two years. If the client completes the terms of military veterans diversion and stays out of trouble for the entire period, the judge dismisses the entire case! Next, the court seals the arrest records. So, for most purposes, you can say that you were never even arrested.
Need Help?
At Criminal Defense Heroes, P.C., we love helping our military members and veterans navigate the legal system. We often get cases dismissed through military veterans diversion, and we are excited to see it expand to help those charged with felony offenses. If you or a loved one are arrested, please reach out for help. give us a call at 323-529-3660 for a consultation.
