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    Criminal Defense Division

    “Military Diversion” for California Veterans with PTSD

    California veterans and active-duty military personnel suffering from trauma or mental health issues may be eligible for military diversion. This allows you to receive treatment in lieu of jail time and ultimately have the charges dismissed.

    Military diversion is a form of pretrial diversion and is authorized by California Penal Code 1001.80 PC. PC 1001.80 allows a judge to postpone criminal proceedings for misdemeanor crimes while you obtain treatment for:

    • Post-traumatic stress disorder (“PTSD”),
    • Sexual trauma,
    • Traumatic brain injury (“TBI”),
    • Substance abuse/addiction to drugs or alcohol, or
    • Mental health problems.1

    Dismissal of criminal charges after military diversion

    Upon successful completion of a military diversion program, the charges against you will be dismissed. The arrest will be deemed never to have occurred for most purposes. Plus no conviction will appear on future background checks.

    If asked about your criminal record in an interview or application for any job (other than peace officers), you will not need to disclose the arrest or diversion – thereby greatly increasing your employment prospects.

    Who is eligible for military diversion?

    To qualify for military diversion under California law, both of the following conditions must apply:

    1. You were, or currently are, a member of the United States military; and
    2. As a result of your military service, you may be suffering from PTSD or one of the other conditions listed above.

    To help you better understand military diversion and PTSD as a defense to criminal charges, our California criminal defense lawyers will address:

    Silhouette of soldier in combat gear standing in front of American flag - military diversion is an option for veterans in some California criminal cases

    Making the transition back to civilian life can be very challenging for veterans.

    1. What is “military diversion” under California Penal Code 1001.80?

    Military diversion is a special type of “pretrial diversion program.” It is available as an alternative to jail time in a California misdemeanor offense case against

    • veterans or
    • active members of the military.

    You do not have to plead guilty or no contest in order to obtain diversion under PC 1001.80. Rather, the judge will suspend criminal proceedings while you participate in a program of treatment and education. (You must give a waiver to your right to a speedy trial.)

    Upon successful completion of such a program, the charges against you will be dismissed. If you do not complete the program, the criminal process will resume.

    California also offers a similar mental health diversion program whereby participants can also get their

    • charges dismissed and
    • criminal records sealed.

    1.1. What conditions qualify me for military diversion?

    You may qualify for military diversion if, as a result of your military service, you suffer from:

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

    The problem must, however, have arisen as a result of your military service.

    Moreover, military diversion is usually only available to first-time offenders.

    If you have a prior conviction for the same offense – or you are accused of a low-level and non-violent felony – you will usually be referred to Veteran’s Court, discussed in Section 4, below. Veteran’s court provides a higher level of structure and supervision than military diversion.

    1.1.1. What is post-traumatic stress disorder (“PTSD”)?

    Post-traumatic stress disorder (PTSD) is a mental health condition experienced by some people who have been through a traumatic experience such as

    • combat or
    • sexual assault.2

    Not everyone who experiences trauma develops PTSD. Some people go through a difficult time but snap back fairly quickly.

    Symptoms of PTSD typically begin within 3 months of a traumatic incident but can begin years later.

    1.1.2. What is military “sexual trauma”?

    The definition of “military sexual trauma” used by the U.S. Department of Veterans Affairs (“VA”) is set forth in 38 U.S. Code 1720D. 38 U.S.C. 1720D  defines “military sexual trauma” (“MST”) as:

    “Psychological trauma, which in the judgment of a VA mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty, active duty for training, or inactive duty training.”

    Sexual harassment is further defined as:

    “Repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character.”

    1.1.3. What is “traumatic brain injury” (“TBI”)?

    “Traumatic brain injury,” or “TBI,” is a type of cognitive impairment resulting from a violent blow or jolt to the

    • head or
    • body.

    It can be caused by a serious fall or an object, such as a bullet, penetrating brain tissue.

    Explosive blasts are also a common cause of traumatic brain injury in military personnel. Researchers believe that the pressure wave passing through the brain significantly disrupts brain function.

    Symptoms of TBI are numerous. They can include physical symptoms – such as headaches, dizziness, and loss of coordination or sensation – as well as cognitive and emotional difficulties.

    1.1.4. Substance abuse and other mental health problems

    In addition to people suffering from PTSD, sexual trauma or TBI, military diversion is available to people suffering from:

    • Substance abuse, or
    • Other mental health issues (including severe depression).

    The key question for the court is

    • whether the condition resulted from your military service and
    • whether you would benefit from treatment.

    1.2. What offenses qualify me for military diversion?

    Military diversion is available if you are accused of a misdemeanor charge and are otherwise eligible.

    Common misdemeanors affecting veterans include (but are not limited to):

    1.3. How do I get military diversion?

    Usually, your California criminal defense lawyer will request diversion from the court. The court may or may not then request an assessment to help it make a determination.

    If the court agrees that you qualify – and provided you consent – you will be placed in a pretrial diversion program. Criminal proceedings will be postponed for up to two years while you receive treatment.

    1.4. What treatment programs can I use?

    The court will assess whether you should be ordered to participate in a federal or community-based treatment service program.

    Preference will be given to treatment programs with a history of successfully treating individuals who suffer from trauma due to their military service. Such programs may include but are not limited to programs operated by

    The court and the assigned treatment program may collaborate with the California Department of Veterans Affairs and the United States Department of Veterans Affairs to maximize benefits and services provided to you.

    If mental health treatment services are ordered, the court may also refer you to the county mental health authority provided the agency agrees to accept responsibility for all of the following:

    • Your treatment,
    • The coordination of appropriate referral to a county veterans service officer, and
    • The filing of reports to the court.

    1.5. Are there other conditions for participation?

    You must comply with any and all conditions imposed by the court or the assigned diversion program. Such conditions may include:

    • attendance at treatment sessions,
    • counseling for domestic violence and/or substance abuse (as appropriate),
    • attending mandatory court appearances,
    • random alcohol and/or drug testing, and
    • satisfactory progress reports from the agency administering the program.

    The agency or agencies responsible for the program will provide the court and the district attorney with reports on your progress no less frequently than every six months.

    1.6. How long will my treatment last?

    Typical military diversion programs last 12-24 months. By law, the period during which criminal proceedings against you may be diverted shall be no longer than two years.3

    If you fail to complete military diversion, you will have your criminal case proceed as if you never participated in the diversion program.

    1.7. Can the court terminate military diversion before I complete it?

    Yes. The responsible agency or agencies shall file reports on your progress with the court and with the prosecutor not less than every six months.

    The court may hold a hearing at any time if it appears to the court that:

    • You are performing unsatisfactorily in the assigned program, or
    • You are not benefiting from the treatment and services provided under the diversion program.

    If the court determines that treatment is not working, it may terminate the diversion and resume criminal proceedings against you.4

    1.8. Will my arrest record be sealed if I complete military diversion?

    Upon your satisfactory completion of the program of treatment, the criminal charges against you will be dismissed.5

    No record of the arrest or diversion may then be used, without your consent, in any way that could result in the denial of any

    • employment,
    • benefit,
    • license, or
    • certificate.

    You can truthfully indicate in response to a question concerning your prior criminal record that you were not arrested or diverted for the offense.6

    Exception: application to become a peace officer

    The one time you must disclose the arrest is if you apply to become a law enforcement officer. In such a case, it must be disclosed in response to a direct question contained in a questionnaire or application for a position as a peace officer.

    Additionally, the record may be disclosed by the Department of Justice in response to a peace officer application request.7

    For more information, please see our article on Getting a Criminal Record Sealed in California.

    1.9. Will my driver’s license be returned if I was arrested for DUI?

    Not necessarily. Although military diversion is available for misdemeanor DUI, successful completion of diversion does not limit the authority of the California Department of Motor Vehicles (DMV) to take administrative action, such as suspending your driver’s license.8

    2. PTSD as a legal defense in California

    In an appropriate case, a defense lawyer may be able to raise PTSD as a legal defense to a crime falling within the California insanity defense.

    PTSD also may be raised as evidence of “mitigation.” Although not a complete defense, mitigation can help you receive more lenient treatment, particularly during California felony sentencing.

    2.1. PTSD and the insanity defense

    You can plead “not guilty by reason of insanity” if you committed the crime while you were “legally insane.” You are legally insane if at the time of the offense you:

    • did not understand the nature of the act, or
    • could not distinguish between right and wrong.

    You must prove that you were insane by a preponderance of the evidence. A preponderance of the evidence means the jury thinks it is more likely than not (at least 51% likely) that you were insane at the time of the crime.

    You will then be committed to a mental health treatment facility instead of prison.

    Example of a successful PTSD defense

    It is very difficult to win a trial based on the California insanity defense. Though in a 2008 case from Northern California, an army veteran suffering from PTSD was found not guilty by reason of insanity for committing an armed robbery of a pharmacy.

    The veteran’s defense alleged that he was traumatized by his service in Bosnia (guarding a mass grave) and Honduras (shooting a teenager in a drug raid). He became addicted to painkillers following an injury and was trying to secure narcotics in an effort to self-medicate when he committed the robbery.

    2.2. PTSD as mitigation evidence

    Even if PTSD cannot be used as an affirmative defense in the insanity context, it might be useful as mitigation evidence. You will need to show that because of emotional trauma, your behavior did not rise to as high a level of culpability as it otherwise would have.

    The judge might then be inclined to sentence you to less time in jail, or to probation and treatment in lieu of custody.9

    Example of PTSD as mitigation

    In a 2009 case involving a Korean War veteran convicted of capital murder, the United States Supreme Court highlighted the potential significance of trauma to a person’s defense. The Court wrote:

    “Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as [the defendant] did. Moreover, the relevance of [the defendant’s] extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on [the defendant].10

    3. Post-conviction treatment instead of jail – Penal Code 1170.9

    California Penal Code Section 1170.9 is similar to military diversion but applies AFTER you have been found guilty of, or pleaded guilty or nolo contendere (no contest) to a crime.

    Like military diversion, PC 1170.9 allows judges to sentence military veterans to treatment instead of prison or jail. The crime must have resulted from

    • PTSD,
    • sexual trauma,
    • traumatic brain injury,
    • substance abuse, or
    • mental health problems stemming from service in the United States military.

    PC 1170.9 used to be limited to combat veterans, but it was amended in 2010 to eliminate the “combat theater” requirement.11

    How does PC 1170.9 treatment work?

    The way Penal Code Section 1170.9 works is that if you allege that you fall within it, the court must hold a hearing to determine eligibility. If the judge determines that you are eligible for alternative sentencing, you can be sentenced to treatment instead of jail or prison.

    How long does PC 1170.9 treatment last?

    Treatment under PC 1170.9 lasts for a period not to exceed that which you would have served in custody.

    If you are granted probation under this section and committed to a residential treatment program, you shall earn sentence credits for the actual time you serve in residential treatment.12

    Who is eligible for treatment under PC 1170.9?

    To receive treatment under Penal Code Section 1170.9, you must be eligible for probation in California.

    Because of this requirement, PC 1170.9 is not available in certain kinds of cases. As we discuss in our article on California Probation in Criminal Cases, probation is not available in cases involving

    that are committed while you are on felony probation.13

    Further, there is a strong presumption against granting probation in other kinds of cases. These include crimes involving

    Even if you are technically eligible for probation, PC 1170.9 alternative sentencing is not required unless the judge actually grants probation.

    Example of PC 1170.9 sentencing rejection

    The California Court of Appeals recently upheld a trial judge’s rejection of PC 1170.9 alternative sentencing for a marine who served in Iraq and was later involved in a drunk driving case that left a man dead.

    judge speaking with attorney at sidebar

    Veterans’ Court may be an alternative to veterans not eligible for military diversion.

    In that case, the marine was charged with

    The court in that case denied probation because it did not believe the evidence showed he committed the offenses because of combat-related PTSD.15

    4. California’s “veteran’s courts”

    In the past several years, many court systems have instituted special California “veterans’ courts,” including the Superior Courts in

    • Orange,
    • San Bernardino,
    • Ventura and
    • Los Angeles.

    Veterans’ courts are designed along the lines of other “collaborative courts” like California drug court and homeless court. They strive to solve underlying problems like substance abuse and mental health issues that lead to crime in the first place.

    Veterans’ courts are similar to military diversion, but provide a higher level of

    • structure,
    • monitoring, and
    • supervision.

    Generally, these courts take only nonviolent offenders. However, the Orange County Combat Veteran’s Court (the first such court in the state) takes some violent offenders.

    How does veterans’ court work?

    Once you are accepted into the program, you will have a team of participants, including the

    • judge,
    • prosecutor,
    • criminal defense attorney, and
    • Veterans Administration caseworker.

    These team members will collaborate on designing and helping you through a comprehensive treatment plan.

    Upon successful completion program, the charges are often dismissed under Penal Code 1170.9, discussed In Section 3, above. If you fail to complete the program, the underlying criminal case will proceed.

    Just as importantly, you may have the coping mechanisms and support systems in place to positively and productively reintegrate into mainstream society.

    Charged with a crime? Call us for help…

    If you are a veteran or member of the military who has been accused of a crime, we invite you to contact us. We value your service and strive to provide you with the treatment and legal defense that will help you move on with your life.

    We defend against all types of criminal charges from drug possession and theft to domestic violence and DUI cases.

    Call us or complete the form on this page to discuss your case with a caring and knowledgeable California defense lawyer.

    We can also help if you need help with criminal defense for members of the military in Nevada.

    Legal references:

    1. California Penal Code 1001.80(a)(2).
    2. National Institute of Mental Health, “Post-Traumatic Stress Disorder.”
    3. Penal Code 1001.80(h).
    4. Penal Code 1001.80(c).
    5. Same.
    6. Penal Code 1001.80(i).
    7. Penal Code 1001.80(j).
    8. Penal Code 1001.80(l).
    9. See California Rule of Court Rule 4.423. Circumstances in mitigation.
    10. Porter v. McCollum (2009) 558 U.S. 30.
    11. See A.B. 674 (2010) Legislative Counsel’s Digest: “The bill would eliminate the requirement that the offense be committed as a result of problems stemming from service in a combat theater.”
    12. Penal Code 1170.9(e).
    13. California Penal Code Section 1203(k).
    14. Penal Code Section 1203(e).
    15. People v. Ferguson (2011) 194 Cal.App.4th 1070.

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