Pretrial Diversion Programs in California – What is it and how does it work?

Normally after you get arrested and charged with a crime in California, you either take a plea or go to trial. Pretrial diversion “diverts” you from this process before a plea is ever entered.

Pretrial diversion programs allow you to avoid jail and a conviction as long as you complete all the required conditions. These terms typically include rehabilitation treatment and/or education classes.

Finishing diversion causes your case to get completely dismissed. Meanwhile, not finishing diversion causes your criminal case to proceed as before, which may end in a conviction.

California’s three main pretrial diversion programs include:

1. Drug diversion (Penal Code 1000 PC), and
2. Mental health diversion (Penal Code 1001.36 PC), and
3. Military diversion (Penal Code 1001.80 PC).

Keep reading to learn what you need to know about these diversion programs, including eligibility requirements.

1) Drug Diversion

If you are facing minor drug charges in California, you may be eligible for drug diversion under Penal Code 1000 PC as long as:

1. You had no disqualifying criminal convictions in the last five years (such as felonies or drug-related misdemeanors); and
2. Your present charges involve no violence or threats; and
3. Your charge is for either of the following crimes:
   • possession of a controlled substance (11350 HS),
   • unlawful possession of marijuana (11357 HS),
   • unlawful cultivation of marijuana (11358 HS),
   • possession of drug paraphernalia (11364 HS),
   • forgery of narcotic prescriptions (11368 HS),
   • possession of prescription sedatives (11375 HS),
   • methamphetamine possession (11377 HS),
   • being under the influence of drugs (11550 HS), or
   • public intoxication (647(f) PC).

If the judge grants your request for diversion, they will give you a limited amount of time to finish substance abuse treatment and complete any other court-ordered terms.¹

2) Mental Health Diversion

If you are charged with a California crime, you may be eligible for mental health diversion under Penal Code 1001.36 PC as long as:

1. You were diagnosed with a “qualifying mental disorder” such as bipolar disorder, PTSD (post-traumatic stress disorder), schizophrenia, or schizoaffective disorder; and
2. The diagnosis was made by a qualified mental health professional; and
3. The professional attests that your disorder played a key role in your charged crime; and
4. The professional attests that treatment can help you.

Diagnoses that do not qualify you for a 1001.36 PC program are particularly dangerous or disturbing, such as antisocial personality disorder, borderline personality disorder, or pedophilia.

Mental health diversion is a possibility in many felony as well as misdemeanor cases. However, you will likely be disqualified if your charge is a serious or violent felony or requires sex offender registration. Examples of disqualifying crimes include:

• assault with intent to commit a felony (220 PC),
• continuous sexual abuse of a child (288.5 PC),
• murder (187 PC),
• rape (261 PC), and
• voluntary manslaughter (192(a) PC).

If the court allows you into mental health diversion, you will be given a limited amount of time to complete your mental health treatment and other court-ordered terms.²

Many pretrial diversion programs involve counseling and treatment.

3) Military and Veteran Diversion

If you are facing misdemeanor or certain felony charges, you may be eligible for military diversion under California Penal Code 1001.80 PC as long as:

1. You are a current or former member of the U.S. military; and
2. Your service caused you to currently suffer either:
   • mental health problems,
   • PTSD (post-traumatic stress disorder),
   • sexual trauma,
   • substance abuse, or
   • TBI (traumatic brain injury).

Military and veteran diversion can last two years and requires you to complete treatment for drug addiction, alcoholism, and/or other mental health issues. Typical charges “diverted” in military diversion include DUI and drug possession.

Some of the felony charges that disqualify you from military diversion include:

• assault with intent to commit rape, sodomy, or oral copulation (220 PC),
• continuous sexual abuse of a child (288.5 PC),
• gang rape (264.1 PC),
• lewd or lascivious act on a child under 14 (288 PC),
• murder (187 PC),
• rape (261 PC),
• voluntary manslaughter (192(a) PC), and
• crimes that require registration as a sex offender, except indecent exposure (314 PC).³

Completing diversion is a second chance at a clean criminal record and background check.

Why should I do pretrial diversion?

Pretrial diversion programs are a way to resolve your criminal case without jail, a conviction, or a criminal record – which can only improve your future employment prospects.

Diversion aims to lighten the strain on local courts by diverting low-level, non-violent offenses. In the meantime, you benefit from rehabilitation services that help you from reoffending in the future.

What do the programs entail?

Diversion programs vary county to county. In addition to undergoing treatment, you may be placed on probation and required to:

• Pay program fees,
• Submit to random drug testing,
• Provide regular status updates to the court,
• Maintain stable employment or full-time student status,
• Pay restitution to any victims,
• Do community service,
• Abide by any restraining orders, and
• Avoid any new arrests while the case is open.

What if I do not finish diversion?

If you do not finish your diversion program or get kicked out of it, then the D.A. will resume prosecuting you for the underlying charge. Since you did not have to enter a guilty plea as a condition of diversion, you can maintain your innocence and fight the charges.

In my experience, prosecutors are unlikely to give you a good plea deal if you fail to finish diversion. So if you choose to take the case to trial, there is always the risk of being found guilty and incarcerated.

Are there other diversion programs?

Many courts do offer other diversion programs. For example, San Francisco offers primary caregiver diversion geared for parents facing criminal charges. San Francisco also runs the Make-it-Right (MIR) restorative justice conferencing program, geared for juveniles 13 to 17 years old.

Your attorney can discuss which diversion programs are available to you in your particular court.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Diversion in the Criminal Justice System – The Review of Economic Studies.
• The Criminal Justice Outcomes of Jail Diversion Programs for Persons With Mental Illness: A Review of the Evidence – International Journal of Forensic Mental Health.
• Can At-Risk Youth Be Diverted From Crime?: A Meta-Analysis of Restorative Diversion Programs – Criminal Justice and Behavior.
• Diversion from the Criminal Process: Informal Discretion, Motivation, and Formalization – Denver Law Journal.
• Measuring the Impact of Pretrial Diversion from the Criminal Justice System – University of Chicago Law Review.

Legal References