Military Veteran Pretrial Diversion

Many veterans, especially those that have served in the combat arena, often return home to find coping difficult. Tragically, those that have served may turn to drugs or alcohol to help them cope. In recognition of the mental health effects precipitated by military service, the California Legislature enacted laws to address these mental health issues, rather than punish the veteran for acts that were triggered by mental health problems as a result of military service.

If you are a U.S. military veteran and you have been charged with driving under the influence of alcohol or drugs (DUI or DUID), you may be eligible for alternative sentencing under Penal Code section 1001.80. If found eligible, you will agree to "pretrial diversion," which allows you to enter a treatment program as ordered by the court rather than proceed with the judicial process. For those who successfully complete the court-ordered treatment program, the arrest for DUI or DUID will be deemed as to have never occurred.

Who is Eligible?

Any current or former member of the United States military, no matter what type of discharge received, is eligible for diversion if he or she is suffering from a mental health problem stemming from military service. For example, PTSD, substance abuse that arose during or because of service, brain injuries, or sexual trauma experienced during the time of service may qualify. Combat service is not a requirement.

A qualifying defendant must file a request with the court for a military diversion; it does not happen automatically. Orange County DUI military diversion defense attorney William Weinberg can assist you through this process.

How Does the Court Decide Whether a Defendant is Eligible?

It is not enough to simply state that you are suffering from a mental health issue related to your service, you must produce evidence of that to the court. Recent psychological or health evaluations by qualified mental health or medical personnel may be sufficient as would records documenting the condition or conditions in your military health records. You also should present your DD Form 214 (Certificate of Release or Discharge from Active Duty) at the time of your hearing. Attorney William Weinberg has shepherded many veterans through is process in the Orange County courts and can help you gather the type of documentation that the courts like to see.

How Does the Program Work?

The court, with input from the veteran, will assign the eligible veteran to an appropriate treatment program. This can be a private program or a public program administered by a federal or community-based agency. The treatment may be inpatient or outpatient depending upon the court's assessment of the veteran's needs. Under the statute, the court is obliged to give preference to treatment programs with a history of successfully treating veterans who suffer from service-related mental health disorders. The court may order the veteran to a program that the veteran requests if the court finds the program appropriate.

The veteran's progress in the program must be reported to the court and to the prosecutor at a minimum of every six months. The veteran gets a maximum of two years to successfully complete the treatment, although successful treatment can conclude sooner than that. Whether after two years or before, when the court concludes that the veteran has successfully completed the program, the case is dismissed. Note that although the statute uses the terminology "shall be deemed to have never occurred," this is a bit misleading. While the veteran who successfully completes the program does not have to report the arrest or diversion on any application or other question concerning his or her criminal background, the arrest is not sealed. It will remain on the Department of Justice Record (rap sheet) with a notation of the dismissal pursuant to pretrial diversion. The arrest and diversion must also be disclosed by the veteran if he or she applies to become a peace officer.

Because the DMV Administration Per Se process is an administrative matter, not a criminal matter, diversion will not prevent the suspension of the veteran's driver's license if the DMV determines that the veteran was driving under the influence. Orange County DUI defense attorney William Weinberg can help you understand how a criminal diversion will interplay with the DMV administrative per se process.

What if the Veteran Does Not Successfully Complete the Treatment Program?

If the veteran fails to complete treatment, or it appears to the court that the veteran is performing unsatisfactorily in treatment, the court may reinstitute the charges and the criminal matter will proceed. The statute provides for a two year period to successfully complete the program. Many veterans find it difficult to start and might drop out of the program or start off fine but then relapse and fail to show up for the ordered treatment. When that happens, the court will hold a hearing, often giving the veteran another chance. Attorney Weinberg cares about his veteran diversion clients and he makes every effort to keep them on track. Although the statute allows two years for successful completion, if the veteran is not showing a genuine effort, the court may terminate the diversion sooner.

Pretrial diversion not only offers the veteran a chance to avoid a DUI or DUID conviction, but it also gives the veteran the resources to address the veteran's service-induced mental health issues.

Contact DUI Defense Attorney William Weinberg for Help

Orange County DUI defense attorney is honored to assist those who have served our country. Call him at his Irvine office at (949) 474-8008 or email him at to set up a free consultation to discuss your eligibility for a military pretrial diversion.

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