California Pretrial Diversion Programs – How They Work

California’s pretrial diversion programs allow eligible defendants to avoid jail time by undergoing treatment. Upon successful completion of diversion, the case is dismissed and the arrest record gets sealed as though it never happened.

There are 3 types of pretrial diversion programs:

1. Drug diversion (Penal Code PC 1000), and
2. Mental health diversion (Penal Code 1001.36) and
3. Military diversion or veterans diversion (Penal Code 1001.81)

Defendants do not have to enter a guilty or no contest plea to participate in a diversion program. But if the defendant fails the program or picks up a new criminal charge before the program ends, the original case picks up where it left off and may very well result in a conviction.

Diversion is the best-case scenario for defendants struggling with addiction, mental illness, or PTSD: They receive the help they desperately need while avoiding incarceration and a criminal record. And the state benefits from diversion too: The D.A.’s caseload is lighter, and jail space is not wasted on people who need help instead of punishment.

1. What is drug diversion under PC 1000?

California Penal Code 1000 allows certain nonviolent drug-related nonviolent misdemeanors to be diverted from the criminal justice system. The charges can be dismissed if the defendant completes the required drug treatment and other court-ordered terms.

If the defendant chooses diversion, the court will assign a treatment list. The defendant will have to waive his or her right to a speedy trial. Defendants will then have a certain period of time to complete the treatment list, which may include:

• Substance abuse treatment program,
• Alcohol treatment,
• Additional classes,
• Victim restitution, and/or
• Probation.

If the defendant successfully completes diversion within the specified amount of time, the charges will be dismissed and sealed from the criminal record. In other words, there will be no criminal conviction.¹

If defendants fail to complete the diversion program, their case will resume. Failing a diversion program no longer advances a case to sentencing. Before 2018, defendants had to plead guilty in order to be eligible for diversion. This is no longer the case.²

1.2. What offenses can be diverted under PC 1000?

The following 14 California drug crimes can be dismissed through misdemeanor diversion programs:

1. Possession of toxic substances for “huffing” (Penal Code 381 PC),
2. Public intoxication (Penal Code 647(f)),
3. Solicitation of a crime to fuel personal narcotic use (Penal Code 653(d)),
4. Possession of an open container of marijuana in a motor vehicle (Vehicle Code 23222(b)),
5. Possession of a controlled substance (Business and Professions Code 4060),
6. Possession of a controlled substance (Health & Safety Code 11350 HS),
7. Unlawful possession of marijuana (Health & Safety Code 11357 HS),
8. Unlawful cultivation of marijuana for personal use (Health & Safety Code 11358 HS),
9. Possession of drug paraphernalia (Health & Safety Code 11364 HS),
10. Aiding or abetting the unlawful use of a controlled substance (Health & Safety Code 11365 HS),
11. Having or using a forged prescription to get controlled substances for personal use (Health & Safety Code 11368 HS),
12. Unlawful possession of prescription sedatives (Health & Safety Code 11375(b)(2)),
13. Possession of methamphetamines for personal use (Health & Safety Code 11377 HS), and
14. Being under the influence of a controlled substance (Health & Safety Code 11550 HS).

Diversion is not available to people charged with more serious or violent drug crimes. Even drug possession with intent to sell (HS 11351) is too serious for PC 1000 diversion.³

1.3. Who is eligible for drug diversion?

To be eligible for drug diversion under California law, the following four conditions must be met:

1. The defendant has not been convicted of a crime that is ineligible for diversion under Penal Code 1000 in the last 5 years (“first time offender”),
2. The current charge does not involve a crime of violence or a threat of violence,
3. There is no evidence of a more serious crime that is ineligible for diversion under Penal Code 1000, and
4. The defendant has not had a felony conviction in the last 5 years.⁴

2. What is mental health diversion under Penal Code 1001.36?

Mental health diversion lets people who have mental health disorders get court-approved treatment if they have been charged with a crime. The court can require:

• Therapy sessions,
• Counseling, and/or
• Drug treatment.

This treatment plan can last up to two years. The defendant can receive either inpatient or outpatient treatment.

Defendants who complete their mental health treatment can have their charges dismissed and sealed.

Mental health diversion is new in California. It came from a law that went into effect on June 27, 2018.⁵

2.1. What charges are eligible for mental health diversion?

Nearly all crimes – both felonies and misdemeanors – can be dismissed through mental health diversion in California. The exceptions that make defendants ineligible for mental health diversion include:

• Murder (Penal Code 187 PC),
• Voluntary manslaughter (Penal Code 192(a)),
• Assault with intent to commit rape, sodomy, or oral copulation (Penal Code 220 PC),
• Any crime that would require the defendant, if convicted, to register as a sex offender, except for indecent exposure,
• Rape (Penal Code 261, 261.5, or 262),
• Sex in concert with another (Penal Code 264.1 PC),
• Lewd acts involving children under 14 (Penal Code 288 PC),
• Continuous sexual abuse of a child (Penal Code 288.5 PC), and
• Certain acts of terrorism.⁶

2.2. Who is eligible for mental health diversion?

To participate in mental health diversion for a criminal charge, all of the following conditions have to be met:

• The defendant was diagnosed with a mental health condition recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM),
• The diagnosis is not pedophilia, borderline personality disorder, or antisocial personality disorder,
• A qualified mental health expert attests that the mental disorder played a significant role in the charged offense,
• A qualified mental health expert thinks that the defendant would respond to treatment,
• The defendant waives their right to a speedy trial,
• The defendant agrees to get treatment as a condition of the diversion program, and
• The court does not think the defendant will pose an unreasonable risk of danger to public safety.⁷

Common disorders that mental health diversion participants suffer from include:

• post-traumatic stress disorder,
• bipolar disorder, or
• schizophrenia or schizoaffective disorder.⁸

3. What is military diversion under Penal Code 1001.81?

Military and veterans diversion is a California program open only to current and past service members accused of a misdemeanor offense, such as drunk driving (DUI) or possessing controlled substances.

To qualify for diversion, the military service must have caused the defendant to currently suffer from either:

• sexual trauma,
• mental health problems,
• traumatic brain injury (TBI),
• post-traumatic stress disorder (PTSD),
  
• substance abuse.

The judge imposes the diversion terms, which generally involve substance abuse treatment, therapy, probation, and/or possibly victim restitution.⁹

4. What happens if the defendant fails to complete diversion?

If the defendant in a pretrial diversion program fails to complete the mental health treatment plan, the criminal charges will be reinstated. The defendant can fight the charges like a normal criminal case.

Defendants can fail their treatment plan if any of the following events happen:

• The defendant is charged with a new felony, or with a new misdemeanor that shows a violent tendency,
• The defendant commits a criminal offense that makes the defendant unsuitable for diversion, or
• A qualified mental health expert tells the court that the defendant’s performance in their treatment plan is not satisfactory or they are gravely disabled.

These events trigger a hearing. The court will use that hearing to decide whether to:

• Modify treatment,
• End diversion and reinstate the underlying criminal charges, or
• Put the defendant under the care of a conservator.⁷

Have questions about your eligibility in a drug diversion program or other diversion program? Contact our DUI/criminal defense attorneys. We have law offices in Los Angeles and throughout the state of California.