To keep the number of incarcerations down, California allows some persons convicted of certain crimes to participate in pretrial diversion programs that will enable them to avoid jail time and a criminal charge on their record. These programs can help society by educating or treating low-level offenders rather than putting them in prison, saving taxpayer money, and allowing defendants the chance to keep their jobs and live with their families. While not everyone accused of a crime will qualify for a diversion program, they are an excellent choice for those who can participate. Your criminal defense lawyer will usually provide you with information on participating in a diversion program if your case may qualify under the law.
California’s Misdemeanor Diversion Program
Until 2021, diversion programs in San Diego 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 initiated, codified under California 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.
Other Diversion Programs in California
The state’s existing programs still exist, and those accused of a felony may be eligible to participate if they qualify for a juvenile or mental health diversion. Similarly, while San Diego judges decline to allow those charged with DUI to participate in a diversion program (though those facing wet reckless charges are usually eligible), those facing military DUI allegations frequently qualify.
Offenders between the age of 12 and 18 may be eligible for a diversion program under Welfare and Institutions Code section 654 (WIC) as long as they have not been accused of serious or violent crimes.
Under Penal Code section 1000 (PC), 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.
The mental health diversion program described under Penal Code section 1001.36 (PC) applies to those accused of either a felony or misdemeanor, as long as the defendant has a mental health disorder recognized by the American Psychiatric Association. 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.
Members of the Armed Forces
A military diversion, detailed in Penal Code section 1001.8 (PC), is an option for anyone who has served in the military and is charged with a misdemeanor in California. 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.
Different diversion programs have different eligibility rules. Your criminal defense attorney can help determine if you may qualify for any such programs. 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.
Those accused of sex crimes are never eligible for diversion programs, nor are those charged with serious or violent felonies.
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 programs or “scared straight” programs. A California state mental 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.
Completion of Diversion Programs
After a diversion program 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 in either California or any other state in the future.
If you have been charged with a crime and are interested in completing a diversion program, 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.