California Diversion Program – Avoid Jail & Get a Dismissal

California’s pretrial diversion allows you to avoid both jail time and a criminal record by undergoing treatment and education. If you complete the program successfully, your case is dismissed and your arrest record gets sealed as though the crime never happened.

California’s four pretrial diversion programs are:

1. Drug diversion (PC 1000),
2. Mental health diversion (PC 1001.36),
3. Military / veterans diversion (PC 1001.80), and
4. Developmental disability diversion (PC 1001.20)

You do not have to enter a guilty or no-contest plea to participate in these diversion programs. If you fail the program or pick up a new criminal charge, the original case resumes and may result in a conviction and jail time.¹

The following flowchart illustrates the sequential stages of California’s pretrial diversion process:

1. What is drug diversion under PC 1000?

California Penal Code 1000 allows certain nonviolent drug-related nonviolent misdemeanors such as “simple possession” to be diverted from the criminal justice system. This means the charges can be dismissed and sealed if you complete the required drug treatment and abide by probation terms.²

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

1. You have not been convicted of a crime that is ineligible for diversion under Penal Code 1000 in the last 5 years (“first time offender”),
2. Your 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. You have not had a felony conviction in the last 5 years.³

In our experience, diversion is a win-win for our clients. If you complete the program (as most people do), you come out with no criminal record. Though if something happens where you cannot complete diversion, we can still fight the charges and can often achieve a case reduction or even a dismissal.

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

Mental health diversion lets you get inpatient or outpatient treatment if you have been charged with a crime and have a mental health disorder such as:

• Post-traumatic stress disorder,
• Bipolar disorder, or
• Schizophrenia or schizoaffective disorder.⁴

Your treatment plan – which may require therapy, counseling, and rehab – can last up to two years. If you complete your mental health treatment, you can have your charges dismissed and sealed.⁵

For you to participate in mental health diversion, all of the following conditions have to be met:

1. You were diagnosed with a mental health condition recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM),
2. The diagnosis is not pedophilia, borderline personality disorder, or antisocial personality disorder,
3. A qualified mental health expert attests that the mental disorder played a significant role in the charged offense,
4. A qualified mental health expert thinks that you would respond to treatment,
5. You waive your right to a speedy trial,
6. You agree to get treatment as a condition of the diversion program, and
7. The court does not think you will pose an unreasonable risk of danger to public safety.⁶

3. What is military diversion under Penal Code 1001.80?

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.

For you to qualify for diversion, your military service must have caused you to currently suffer from either:

• Sexual trauma,
• Mental health problems,
• Traumatic brain injury (TBI),
• Post-traumatic stress disorder (PTSD), or
  
• Substance abuse.

The judge imposes the diversion terms, which generally involve substance abuse treatment, therapy, probation, and/or possibly victim restitution.⁷

We have represented literally thousands of current and former service members facing misdemeanor charges, and military diversion allowed them to both rehabilitate while also escaping a criminal record.

4. What is developmental disability diversion under Penal Code 1001.20?

To qualify for California’s Developmental Disability Diversion Program, you must:

• have a developmental disability as defined in Welfare and Institutions Code § 4512,
• have not been in a diversion program in the past two years, and
• get approval by the court.

The program begins with an assessment by a regional center. Then an individualized treatment plan is developed.

Diversion can last up to two years for misdemeanors or three years for felonies. Upon successful completion of the program, the criminal charges may be dismissed.⁸

5. What happens if I fail to complete diversion?

The court may reinstate your criminal charges if any of the following events happen:

• Prosecutors charge you with a new crime that makes you unsuitable for diversion,
• A qualified mental health expert tells the court that your performance in your treatment plan is not satisfactory or you are gravely disabled, or
• You otherwise violate the terms of your probation.

These above events trigger a hearing, where the court will decide whether to:

• Modify treatment,
• End diversion and reinstate your underlying criminal charges, or
• Put you under the care of a conservator.⁸

In our experience, we can often convince the judge to give our clients a second chance to stay in the program without penalties. We do this by showing that:

• Someone falsely accused you of the new crime,
• Your performance has been satisfactory despite the mental health expert’s opinion,
• You have been making excellent progress so far, and/or
• You have been otherwise compliant, and this is your first violation.

Additional Reading

For more information, see our related articles:

• What is diversion? – A general overview of how diversion works in California.
• California Drug Courts: How it works – An opportunity for nonviolent drug offenders to avoid a conviction by doing rehabilitation.
• How to do Veterans Court in California – Intensive rehabilitation program that permits eligible military vets to avoid jail and a conviction.
• Can California Veterans do Military Diversion for a DUI? – Discussion of how eligible vets can complete a diversion program for drunk/drugged driving charges.
• Informal diversion in Juvenile Court (WIC 654) – A legal mechanism whereby juveniles under 18 years old can avoid a criminal record after completing six months of informal supervision.