A conviction carries severe consequences, including jail or prison confinement, court fines, and a criminal record with many collateral consequences. Fortunately, the law recognizes that not every offender, especially first-time offenders, should be designated as criminals for a one-time mistake that could be due to drug addiction or mental problems.

As a result, California has a special pretrial diversion program for first-time offenders to prevent criminal convictions and the consequences that accompany them. Upon completion of the program, the court drops the charges and seals the arrest record. Failure to complete the program means the court case will proceed. Here is what you should know about these diversion programs and how you can exploit them to protect your job, professional license, immigration status, and reputation.

Understanding California Special Diversion Programs

“Diversions” are special programs that create an alternative to the conventional criminal justice system or prosecution. Defendants eligible for the program avoid criminal prosecution, conviction, and incarceration by completing a diversion program tailored to address the reasons for arrest, such as drug addiction, anger issues, or alcohol abuse.

Diversion programs start after an arrest and criminal charge and end when you comply with the court-imposed conditions until the program period ends. Unlike criminal justice systems, whose aim is to punish offenders found guilty and permanently label them as criminals, diversion programs offer an alternative to the criminal court for first-time offenders, rehabilitating them through training and education to prevent future violations and avoid criminal labeling.

Also called pretrial diversion or intervention programs, these programs function much like probation programs. However, unlike probation that the judge imposes after you have been found guilty, a diversion happens before conviction. Instead of going through court hearings and a trial, the judge imposes a treatment program with a certain goal in mind, depending on the type of violation, criminal record, and the unique circumstances that apply to your case.

The court specifies the goals you must attain in the program and sets a time frame within which these objectives must be accomplished. If you adhere to the terms and complete the program, the court will dismiss the charges. So, if you qualify for diversion and complete it, you do not have to deal with the criminal court processes and consequences. The goal is to help non-violent offenders stay out of jail, prevent repeat offenses, and avoid a permanent criminal record. However, failure to complete diversion will result in prosecution and a possible conviction.

Judges do not automatically grant diversion programs. Your criminal defense lawyer must request one as part of your defense strategy. However, you must prove you are eligible before the court grants one. The court then decides on the type of program that fits your situation and sets the duration. You must then pay for the program as a court fee or treatment program fee. The cost of programs varies depending on the treatment or training you need. Because the program encourages rehabilitation, the common terms you must comply with, contingent on your case’s facts, include:

  • Enrolling and attending education classes
  • Undergoing rehabilitation and counseling
  • Joining support groups
  • Obeying a restraining order
  • Participating in community service
  • Victim restitution
  • Adhering to curfew hours
  • Undergoing vocational training
  • Joining a veterans program

When you adhere to these terms and complete the diversion, you will return to the court that imposed the program. The court will review your supervisor’s report and then dismiss the case if you have complied with the diversion terms. After the court dismisses your charge, the arrest record is sealed. Despite the record being sealed, you should still petition the court to expunge the record so that it is no longer visible on your criminal record.

Conversely, if you fail to complete the diversion or engage in a violation, the judge revokes the program, and your criminal charge resumes in court. If you pleaded guilty or no contest before diversion, the judge will find you guilty of the baseline violation. Nevertheless, if you were diverted before a guilty or no-contest plea, the case will resume where it was left off and follow the standard procedures in the criminal justice system, resulting in a possible criminal conviction, incarceration, and a permanent criminal record. As a first-time offender, a criminal conviction is life-changing because it damages your reputation, results in jail confinement, and makes it difficult to find opportunities.

Eligibility for California Special Diversion Programs

Not every defendant is a candidate for the California diversion program. Some are eligible for diversion, while others do not meet the candidacy criteria and go through the criminal process.

Typically, you must be a first-time offender and have a clean background to qualify for a special diversion program. So, if it is your first time under arrest, your defense lawyer can request a diversion program.

Similarly, your criminal charge must be for an offense listed under the law as eligible for diversion. The qualities of a crime that qualify for diversion are those that are designated as low-level and non-violent. These include:

  • Petty theft
  • Domestic abuse
  • Simple possession of drugs
  • DUI
  • Child abuse
  • Child neglect

Also, if you commit assault for the first time and the victim sustains minor to no injuries, you qualify to request a diversion. Before proposing the program to the judge, your defense lawyer must evaluate your case and determine if you are eligible. If you qualify, the lawyer will advise and guide you on the next steps.

Candidacy for diversion also depends on the type of program you want to join. Some treatment programs have strict requirements that lock out many defendants. Fortunately, if you can demonstrate that you would benefit more from a treatment program than a criminal court proceeding, the judge could be compelled to grant a diversion program even when you have a criminal record. The judge will review all diversion requests and will ensure that defendants who could benefit from the program do not miss the opportunity. However, before granting your request, the judge must ensure that you do not pose a danger to the public. This is the reason many defendants charged with violent crimes are ineligible for pretrial intervention programs.

Types of California Special Pretrial Intervention Programs

California has three primary pretrial intervention or diversion programs that offer treatment, counseling, and training, contingent on the defendant’s needs. These programs are:

  1. Mental Health Diversion

Abbreviated as MDC, mental health diversion is outlined under PEN 1001.36 as an intervention program that enables defendants with mental illnesses to receive the necessary treatment before they face a criminal charge. The intention of requesting this program is to delay while receiving treatment. When the judge grants an MDC, they can order you to undergo drug treatment, counseling, or therapy, contingent on your mental issue. MDC programs last up to 24 months and offer inpatient and outpatient care, depending on your needs. The law allows defendants to request this treatment plan at any stage of the court hearing before sentencing.

MDC provides relief to all eligible defendants, whether you face a misdemeanor or felony charge. However, some crimes are exempt from the relief. These include:

  • Murder under PEN 187
  • PEN 192a voluntary manslaughter
  • PEN 261, 261.5, and 262 rape
  • Sex offenses with an obligation to enlist with the Megan’s Law website as a sex offender
  • PEN 264.5 Sex in concert
  • PEN 288 lascivious act with a minor 14 or younger
  • Certain terrorism offenses
  • PEN 288.5 continuous sexual abuse of a minor

If your offense is not on the list of exempt offenses, you are eligible for an MDC if you satisfy the following conditions:

  • You have been diagnosed with a mental ailment
  • Your diagnosis must be for post-traumatic stress disorder (PTSD), schizophrenia, bipolar disorder, or schizoaffective disorder. If you have mental conditions, such as pedophilia, borderline personality disorder, or antisocial personality disorder.
  • Your mental condition significantly contributed to your crime
  • A qualified mental health professional can corroborate that your mental illness contributed to the crime.
  • A qualified mental health expert can confirm that you will benefit from the treatment recommended by the judge.
  • You agree to enroll in the treatment plan and forfeit your right to a speedy trial
  • You commit to adhering to the pretrial diversion conditions
  • The judge must be convinced that you do not pose any danger to the public

When proving your case, your attorney must demonstrate that the mental illness significantly contributed to your criminal act and that you showed signs of the disorder when the crime happened. The evidence the court will review to decide on whether to grant or deny an MDC is:

  • The police reports
  • Medical reports
  • Witness statements
  • The testimony from your mental health expert
  • The preliminary proceedings transcripts

Once the judge grants the proceeding, money can be derived from a private or public source to fund it. If sending you to a private mental treatment facility is too expensive, the judge will refer you to a collaborative court or a county facility.

Upon MDC completion, the judge will drop your charges. Successful completion of MDC means the following:

  • You have adhered to all court conditions
  • You have a long-term mental health care plan
  • You have stayed away from new crimes that are unrelated to your mental issues

If you do not complete the treatment plan, the criminal case will resume.

  1. Military or Veteran Diversion

Military diversion is provided for under PEN 1001.81. The pretrial intervention plan exists to help active-duty military members and veterans facing misdemeanor charges for less severe violations. The plan's eligibility criteria are nuanced. Your defense lawyer must demonstrate that during active duty in the military, you suffered any of the following conditions:

  • Traumatic brain injury (TBI)
  • PTSD
  • Drug or substance abuse or addiction
  • Sex trauma

An assertion alone is not sufficient to convince the judge to grant this relief. You must provide proof of the condition, such as:

  • A report on your medical checkup while on active military service
  • Current medical reports and your physician's opinion on your condition
  • The Department of Veterans Affairs (VA) compensation package and pension
  • VA records
  • Separation physicals
  • Support letters from your close family and friends
  • Letters from caseworkers and mental health practitioners

Only first-time offenders are eligible for military diversion. However, defendants charged with less severe, non-violent offenses or with a prior guilty verdict for the offense can still qualify for the relief.

The misdemeanor offenses eligible for the PEN 10001.81 diversion plan are:

  • PEN 420 battery
  • Health and Safety Code (HS) 11350 drug possession
  • PEN 240 assault
  • DUI
  • PEN 647f public drunkenness

Consult with your defense lawyer to establish if you are eligible for military relief. If you are, the lawyer must submit a motion in court requesting pretrial intervention. The petition should include copies of:

  • Support letters from case workers, friends, VA representatives, and family members with knowledge of your military service, trauma suffered, or character.
  • Medical records showing your diagnosis
  • The treatment plan suggested by your healthcare provider

If the court finds you eligible after evaluating your evidence, it will delay the criminal case by two years to allow you to undergo treatment. Once it grants the treatment, it will determine the program that best suits your needs and set the conditions you must satisfy. The common military diversion conditions are:

  • Mandatory substance abuse counseling
  • Attending all treatment sessions unless there is a valid or recognized reason for skipping
  • Presenting yourself in court upon request
  • Agreeing to random alcohol or substance tests

The facility providing the treatment must send progress reports to the District Attorney twice annually. If you breach the diversion terms, the court case will resume.

  1. Drug Diversion

Drug diversion or deferred entry of judgment (DEJ) is a pretrial intervention plan provided for under PEN 1000 for first-time offenders charged with misdemeanor simple possession violations. If the court grants your request for drug diversion, you must first enter a not-guilty plea to the baseline offense and agree to enroll in a treatment plan. When you do this, you waive or forfeit your right to a speedy trial, and you will begin a drug diversion program tailored to meet your needs for a set duration. If you complete the plan, the court will dismiss the case. However, when you fail to complete the program, you will be found guilty of the crime that qualified for the diversion.

Offenses eligible for drug diversion are:

  • HS 11350 controlled substance possession
  • HS 11358 illegal cannabis activation
  • HS 11550 being intoxicated by controlled substances
  • VC 23222 possession of a container full of marijuana in your car
  • HS 11377 possession of methamphetamine for personal use
  • HS 11365 aiding and abetting the unlawful controlled substance use
  • HS 11364 paraphernalia possession
  • HS 11368 use of forged prescriptions to obtain drugs for personal use
  • HS 11375b unlawful possession of prescription sedatives
  • HS 11357 illegal cannabis possession

The controlled substances referred to in these offenses are heroin, cocaine, cannabis, and ecstasy.

A standard drug diversion program:

  • Must provide free services to participants and must be deemed practical and reliable by the judge and county drug program administrators. 
  • Must be certified by the county drug program administrator

The judge will refer you to any of the approved programs for a duration of one to one and a half years, contingent on the type of treatment you require. If the desired outcome is not achieved within the set time, the court can grant an extension.

The court will terminate the drug diversion if:

  • You have been found guilty of a violation that depicts violent conduct
  • You have been convicted of a felony
  • You have engaged in a violation or failed to complete the diversion

After a violation, the court, probation officer, or DA can request a termination of the drug diversion. However, the court will hold a hearing to consider arguments and evaluate evidence regarding the termination of diversion. You will need an experienced lawyer on your side at this stage to convince the judge not to end the program or prove that you are benefiting from the treatment plan. However, if the prosecutor or PO builds a stronger case against you, proving that you are not deriving any benefits from the diversion, that you have failed to adhere to the terms, or that you have been convicted of a felony or violent behavior offense, they will terminate the program.

The court does not automatically grant drug diversion. Your lawyer must negotiate with the prosecutor for a DEJ. The DA reviews the case and then sends you and your legal representative a written notice on your qualification for diversion. The notice from the prosecutor comprises:

  • A detailed explanation of the drug diversion process
  • A glance at the roles and functions of your PO or supervising officer, prosecutor, or court in the process.
  • A statement that, upon completion of the diversion and positive recommendation by the authority overseeing the treatment, the court will drop your charges.
  • A statement that the program will be terminated if you commit a disqualifying offense or violate the diversion rules.
  • Information regarding your rights regarding having a criminal record and the response you should give when asked about your arrest record once you complete treatment.

When you request a DEJ, the judge can assign a probation officer to look into your case, conduct background checks, and make recommendations on your eligibility.

Find a Seasoned Criminal Lawyer Near Me

Not all arrests lead to convictions. If you qualify for a pretrial intervention or diversion program, you can avoid the trial, conviction, sentencing, jail time, crime record, and other consequences of a criminal court process. However, you will require a criminal lawyer to assess your case and determine your eligibility for diversion.

At California Criminal Lawyer Group in San Jose, we have experienced defense lawyers who will explain how diversion works and the conditions you must meet. Call us at 408-622-0204 to discuss the available diversion programs.