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.

Here are five key things to know about California’s pretrial diversion programs:

1. The three programs are drug diversion (PC 1000), mental health diversion (PC 1001.36), and military / veterans diversion (PC 1001.80).
2. You do not have to enter a guilty or no-contest plea to participate in a diversion program.
3. 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.
4. If you complete the program successfully, the charges get dismissed and you avoid jail time or a criminal record.
5. Diversion lightens the D.A.’s caseload, 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 you complete the required drug treatment and other court-ordered terms.

If you choose diversion, the court will assign a treatment list. You will have to waive your right to a speedy trial. You 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.

1.1. What happens next?

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

If you fail to complete the diversion program, your 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

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.

1.2. Who is eligible for drug diversion?

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.

Note that even if you are not eligible for drug diversion, we have a long track record of getting narcotics offenses reduced and even dismissed through aggressive investigation, negotiation, and litigation with the D.A. As long as we can show prosecutors there is a reasonable doubt as to your guilt, the state should drop the charges.

1.3. Which drug crimes can be dismissed?

The following 14 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) PC),
4. Possession of an open container of marijuana in a motor vehicle (Vehicle Code 23222(b) VC),
5. Possession of a controlled substance (Business and Professions Code 4060) BP,
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) HS),
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).³

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

Mental health diversion lets you get court-approved treatment if you have been charged with a crime and have a mental health disorder. The court can require:

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

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

If you complete your mental health treatment, you can have your charges dismissed and sealed.

Mental health diversion is new in California as it went into effect on June 27, 2018.⁴ Though in the few years since then, we have ushered hundreds of clients through the program so that they come out with vastly improved coping techniques and no criminal record.

2.1. Who is eligible for mental health diversion?

For you to participate in mental health diversion for a criminal charge, 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.⁵

Common disorders that mental health diversion participants suffer from include:

• post-traumatic stress disorder,
• bipolar disorder, or
• schizophrenia or schizoaffective disorder.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 happens if I fail to complete diversion?

If you are in a pretrial diversion program and fail to complete the mental health treatment plan, the court will reinstate your criminal charges. You can fight the charges like a normal criminal case.

You may fail your treatment plan if any of the following events happen:

• Prosecutors charge you with a new felony, or with a new misdemeanor that shows a violent tendency,
• You commit a criminal offense that makes you unsuitable for diversion, or
• A qualified mental health expert tells the court that your performance in your treatment plan is not satisfactory or you are gravely disabled.

Diversion hearings

These above events trigger a hearing. The court will use that hearing to 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.