Veterans and active duty military personnel suffering from trauma or mental health issues may be eligible for “military diversion” in lieu of jail time in California.
Military diversion is a form of “pretrial diversion" and is authorized by California Penal Code 1001.80. PC 1001.80 allows a judge to postpone criminal proceedings for misdemeanor crimes while the defendant obtains treatment for:
- Post-traumatic stress disorder (“PTSD”),
- Sexual trauma,
- Traumatic brain injury (“TBI”),
- Substance abuse, or
- Mental health problems.1
Dismissal of criminal charges after military diversion
Upon successful completion of a military diversion program, the charges against the defendant will be dismissed. The arrest will be deemed never to have occurred for most purposes.
If asked about his or her criminal record in an interview for any job (other than peace officer), the defendant will not need to disclose the arrest or diversion.
Who is eligible for military diversion?
To qualify for military diversion, both of the following conditions must apply:
- The defendant was, or currently is, a member of the United States military; and
- As a result of his or her military service, the defendant 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 discuss, below:
- 1. What is “military diversion” under California Penal Code 1001.80?
- 1.1. What conditions qualify someone for military diversion?
- 1.1.1. What is post-traumatic stress disorder (“PTSD”)?
- 1.1.2. What is military “sexual trauma”?
- 1.1.3. What is “traumatic brain injury” (“TBI”)?
- 1.1.4. Substance abuse and other mental health problems
- 1.2. What offenses qualify a defendant for military diversion?
- 1.3. How does a defendant get military diversion?
- 1.4. What treatment programs can the defendant use?
- 1.5. Are there other conditions for participation?
- 1.6. How long will my treatment last?
- 1.7. Can the court terminate military diversion before I complete it?
- 1.8. Will my arrest record be sealed if I complete military diversion?
- 1.9. Will my driver's license be returned if I was arrested for DUI?
- 2. PTSD as a legal defense in California
- 3. Post-conviction treatment instead of jail – Penal Code 1170.9
- 4. California's "veteran's courts"
Military diversion is a special type of “pretrial diversion.” It is available as an alternative to jail time in a California misdemeanor case against veterans or active members of the military.
Defendants do not have to plead guilty or no contest in order to obtain diversion under PC 1001.80. Rather, the judge will postpone proceedings while the defendant participates in a program of treatment and education.
Upon successful completion of such a program, the charges against the defendant will be dismissed. If the defendant does 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.
Defendants may qualify for military diversion if, as a result of their military service, they 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 the defendant's military service.
Moreover, military diversion is usually only available to first-time offenders.
Defendants with a prior conviction for the same offense 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.
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.
Others have very serious symptoms that last a few weeks. This is called “acute stress disorder”, or “ASD.”
When symptoms do not go away, however, the person may be suffering from PTSD. Such a diagnosis should be considered when symptoms:
- Last more than a month,
- Seriously affect one's ability to function, and
- Are not due to substance use, medical illness, or anything except the traumatic event itself.
What are the symptoms of PTSD?
Symptoms of PTSD typically begin within 3 months of a traumatic incident but can begin years later.
To be diagnosed with post-traumatic stress order, an adult must have all of the following for at least one month:
- At least one “re-experiencing” symptom.
- At least one “avoidance” symptom.
- At least two “arousal and reactivity” symptoms.
- At least two cognition and mood symptoms.
Re-experiencing symptoms include:
- Bad dreams, and/or
- Frightening thoughts.
Avoidance symptoms include:
- Staying away from places, events, or objects that are reminders of the traumatic experience, and/or
- Avoiding thoughts or feelings related to the traumatic event.
Arousal and reactivity symptoms include:
- Being easily startled,
- Feeling tense or “on edge,”
- Having difficulty sleeping, and/or
- Having angry outbursts.
Cognition and mood symptoms include:
- Trouble remembering key features of the traumatic event,
- Negative thoughts about oneself or the world,
- Distorted feelings, such as guilt or blame, and/or
- Loss of interest in enjoyable activities.
Risk factors for PTSD
It is normal for people to experience a certain degree of fear and anxiety after a traumatic event.
But most people who experience trauma will NOT develop PTSD.
However, some people appear to be more at risk for developing PTSD after a traumatic event.
- People who experienced childhood trauma,
- People with little social support,
- People with a history of mental illness or substance abuse, and
- People who have recently experienced another source of stress, such as loss of a job, home or loved one.
“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."
Acts that fall within the scope of military sexual trauma include, without limitation:
- Forced oral copulation,
- Penetration with an object,
- Sexual battery,
- Coerced sex,
- Threatening, offensive remarks about a person's body or sexual activities, and
- Threatening and unwelcome sexual advances.
It does not matter whether the service member was on or off duty or on or off base at the time of the assault or harassment.
If the experienced occurred while the service member was on active duty or active duty for training, the VA considers it MST.
“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.
Traumatic brain injury also results from penetrating wounds, severe blows to the head with shrapnel or debris, and falls or bodily collisions with objects following a blast or vehicle accident.
Symptoms of TBI
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.
These symptoms may appear immediately after the traumatic event, or days or even weeks later.
The cognitive and emotional problems can be a source of tremendous frustration and conflict for military members and their families.
They may also lead to mental health problems, such as depression or substance abuse, as the afflicted individual tries to cope with his or her symptoms.
Long-term issues associated with TBI can include (but are not limited to) problems with:
- Attention or concentration,
- Problem-solving and decision-making,
- Organization and planning
- Beginning or completing tasks,
- Language and communication,
- Irritability and/or mood swings,
- Anger, and
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 the defendant's military service and whether the defendant would benefit from treatment.
Military diversion is available if an otherwise eligible defendant is accused of a misdemeanor crime.
Common misdemeanors affecting veterans include (but are not limited to):
Usually, the defendant's 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 the defendant qualifies -- and provided the defendant consents -- the defendant will be placed in a pretrial diversion program. Criminal proceedings will be postponed for up to two years while the defendant receives treatment.
The court will assess whether the defendant 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 United States Department of Defense or the United States Department of Veterans Affairs.
The court and the assigned treatment program may collaborate with the Department of Veterans Affairs and the United States Department of Veterans Affairs to maximize benefits and services provided to a veteran.
If mental health treatment services are ordered, the court may also refer the defendant to the county mental health authority, provided the agency agrees to accept responsibility for all of the following:
- The treatment of the defendant,
- The coordination of appropriate referral to a county veterans service officer, and
- The filing of reports to the court.
The defendant 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),
- 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 prosecutor with reports on the defendant's progress no less frequently than every six months.
Typical military diversion programs last 12-24 months. By law, the period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.3
Yes. The responsible agency or agencies shall file reports on the defendant's 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:
- The defendant is performing unsatisfactorily in the assigned program, or
- The defendant is 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 the defendant.4
Upon the defendant's satisfactory completion of the program of treatment, the criminal charges against the defendant will be dismissed.5
No record of the arrest or diversion may then be used, without the defendant's consent, in any way that could result in the denial of any employment, benefit, license, or certificate.
The defendant can truthfully indicate in response to a question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense.6
Exception: application to become a peace officer
The one time the defendant must disclose the arrest is if he or she applies to become a peace 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.
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 to take administrative action, such as suspending the defendant's driver's license.8
PTSD also may be raised as evidence of “mitigation.” Although not complete defense, mitigation can help a defendant receive more lenient treatment, particularly during California felony sentencing.
A defendant can plead "not guilty by reason of insanity" if that defendant committed the crime while he or she was "legally insane.” A defendant is legally insane if at the time of the offense he or she:
- did not understand the nature of the act, or
- could not distinguish between right and wrong.
The defendant must prove that he or she was 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 the defendant was insane at the time of the crime. The defendant 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. But 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.
Even if PTSD can't be used as an affirmative defense in the insanity context, it might be useful as mitigation evidence. The defendant will need to show that because of emotional trauma, his or her behavior did not rise to as a high level of culpability as it otherwise would have.
The judge might then be inclined to sentence the defendant 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
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 a defendant alleges that he or she falls within it, the court must hold a hearing to determine eligibility. If the judge determines that the defendant is eligible for alternative sentencing, the veteran-defendant 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 the defendant would have served in custody.
A defendant granted probation under this section and committed to a residential treatment program shall earn sentence credits for the actual time the defendant serves in residential treatment.12
Who is eligible for treatment under PC 1170.9?
To receive treatment under Penal Code Section 1170.9, the defendant 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 violent felony crimes in California and serious felony crimes in California that are committed while the defendant is on felony probation.13
Further, there is a strong presumption against granting probation in other kinds of cases. These include crimes involving a deadly weapon or the infliction of great bodily injury (Penal Code 12022.7).14
Even if a defendant is 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.
In that case, the marine was charged with California DUI Second Degree Murder / "Watson Murder" as well as California Vehicle Code 23153 VC DUI causing injury. The court in that case denied probation to the defendant because it did not believe the evidence showed he committed the offenses because of combat-related PTSD.15
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 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 a veteran is accepted into the program, he or she 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 the veteran through a comprehensive treatment plan.
Upon successful completion program, the charges are often dismissed under Penal Code 1170.9, discussed In Section 3, above.
Just as importantly, the veteran-defendant 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 for a free consultation.
We value your service and strive to provide you with the treatment and legal defense that will help you move on with your life.
Call us at 855-JUSTICE 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.
- California Penal Code 1001.80(a)(2).
- National Institute of Mental Health, "Post-Traumatic Stress Disorder."
- Penal Code 1001.80(h).
- Penal Code 1001.80(c).
- Penal Code 1001.80(i).
- Penal Code 1001.80(j).
- Penal Code 1001.80(l).
- See California Rule of Court Rule 4.423. Circumstances in mitigation.
- Porter v. McCollum (2009) 558 U.S. 30.
- 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."
- Penal Code 1170.9(e).
- California Penal Code Section 1203(k).
- Penal Code Section 1203(e).
- People v. Ferguson (2011) 194 Cal.App.4th 1070.