Last Updated on February 20, 2025
Prison and jail overcrowding has resulted in California being open to many alternatives to traditional forms of criminal punishment. One increasingly common alternative is “diversion,” a program that allows those accused of crimes to avoid criminal conviction if they meet the terms outlined in their agreement with the court.
What is a Pre-Trial Diversion Program?
To keep the number of incarcerations down, California allows some persons accused of certain crimes to participate in pre-trial diversion programs that will enable them to avoid serving jail time and having a criminal charge added to their record. Your criminal defense lawyer will usually provide you with information on participating in a diversion program if your case may qualify under the law.
Who Qualifies for Diversion Programs?
Until 2021, diversion programs were only open to select defendants, typically juveniles, drug users, current and former military personnel, and those with mental health issues. These programs were generally only available to first-time offenders with no prior convictions on their records.
In January of 2021, a new diversion program was created under Penal Code sections 1001.95-1001.97 (PC). This program allows defendants accused of nearly any type of misdemeanor to participate. Unlike the pre-existing programs, defendants in this program do not have to have a clean criminal record to qualify —though first-time offenders are still far more likely to be offered this opportunity.
With so many diversion programs available, always speak with your attorney if you are interested in this option because each program has different eligibility rules. One thing that’s always true is that those accused of sex crimes are never eligible for these programs, nor are those charged with serious or violent felonies, such as murder.
Even if your case may qualify, it is at the court’s discretion whether you will be allowed to enter the program. An experienced diversion program lawyer may be critical in convincing the judge that you deserve such an opportunity.
What are the Benefits of Diversion?
The advantages to those admitted into these programs are evident, as they allow people to avoid incarceration and having crime added to their criminal record. But these programs also benefit society as a whole in multiple ways. For example:
- Studies show that educating or treating low-level offenders reduces reductivism rates without increasing risk to the community
- Keeping people out of jail and prison saves a significant amount of taxpayer money, considering that the state spends over $130,000 per year to house each inmate in custody
- Those enrolled in the programs can keep their jobs, continuing to support the economy
- Family members of inmates continue to benefit from the support and guidance of their loved ones
What Diversion Programs are Available?
California has many different programs, with some focused on the type of offender (a juvenile, a servicemember, etc.) and others focused on the kind of offense (misdemeanors, drug offenses, etc.). Here is a list of the most common diversion programs:
Misdemeanor Diversion (1001.95-1001.97 (PC))
This is the most popular diversion program in the state, as it is open to the majority of offenders accused of misdemeanor offenses, with the exception of those charged with:
While not outlawed at a statewide level, judges in San Diego typically refuse to allow those accused of DUI to participate, but those facing wet reckless charges usually qualify.
Drug Offenses (1000 (PC))
Under this law, those who have been accused of low-level, non-violent drug crimes (usually possession) can apply for a drug diversion program if they have not had any previous convictions in the last 5 years. Offenders must undergo drug treatment and education to complete the terms of their agreement.
Treatment-Mandated Felonies (11395 (HSC))
While not technically a “diversion program,” voters recently approved legislation introducing a new class of felonies to state law. Under this law, those charged with a third or subsequent drug possession or sales offense will face felony charges; however, they may be able to avoid a conviction if they undergo substance abuse treatment. Those charged with a third offense will automatically qualify for deferment of the charges, but judges may decline that option for offenders facing fourth and subsequent convictions and sentence them to jail or prison instead.
Juvenile Offenders (654 (WIC))
California offenders under the age of 18 may be eligible for a diversion program unique to juveniles, even if they are facing felony-level charges, as long as they are not accused of serious or violent crimes.
Mental Health Diversion (1001.36 (PC))
This program applies to those accused of the majority of crimes as long as the offense was related to a defendant’s mental health disorder recognized by the American Psychiatric Association. Examples include schizophrenia, bipolar disorder, and PTSD.
The condition must have played a significant role in the crime. The defendant must be amenable to treatment and cannot pose an unreasonable risk to public safety. Offenses excluded from this law include:
- Murder or voluntary manslaughter
- Sex crimes that require registration
- Possession or manufacture of a weapon of mass destruction
Members of the Armed Forces (1001.80 (PC))
A military diversion is an option for current and former service members charged with a misdemeanor. This program is only open to those with substance abuse, Post Traumatic Stress Disorder (PTSD), sexual trauma, traumatic brain injury, or other mental health disorders related to their military service. While this diversion program is only applicable for misdemeanors, it is helpful for current or former members of the military who have been accused of a DUI in San Diego, unlike Penal Code sections 1001.95-1001.97 (PC).
The Diversion Program Process
Entry into these programs is not granted automatically, and to get into one, your lawyer must file a request for a diversion with the court. He will also have to show why you deserve to be in the program, which may involve contacting character witnesses, presenting a polished resume, or showing evidence of the good you do in your local community.
The process for a diversion varies based on the type and the conditions imposed by the judge. Some programs may last only one year, while others will last two. For example, a drug diversion program will require the defendant to take around six months of classes and participate in a drug and alcohol treatment program. In domestic violence cases, the defendant usually must complete a batterer’s class before the charges are dismissed.
Juvenile diversion programs may include community service, counseling, outreach, or “scared straight” programs. A state health diversion program, including those for members of the military, will always involve some form of counseling but may also include in-patient treatment, medication, or other techniques to treat the condition.
Being charged with another crime or failing to meet the program’s terms can result in the termination of the diversion program. When this happens, a hearing will be ordered so the court may review whether or not criminal proceedings should proceed once again.
At the Program’s Conclusion
After a diversion has been completed, the defendant’s plea may be withdrawn, and the case can be dismissed entirely. Essentially, this means that the charge never happened for legal purposes. You will not be required to list it when filling out background checks while applying for jobs or housing, though you must disclose the arrest and charge if you apply for a position in law enforcement. While it may be used as grounds to prevent you from being eligible for another diversion program, the charge will not count against you as a prior offense if you face criminal charges anywhere in the US in the future.
If you have been charged with a crime and are interested in a pre-trial diversion in Vista or the rest of San Diego, discuss this possibility with your criminal defense attorney. You can contact Peter M. Liss to schedule a free initial consultation in his Vista office by calling (760) 643-4050 or (858) 486-3024.
