In California, certain military veterans are eligible for a pretrial diversion program if they have been arrested for a misdemeanor offense of driving under the influence (DUI). If eligible, the criminal elements of your DUI case would pause while you complete the program. If you complete it, the court may dismiss the charges and seal your record.
Steps in California’s military diversion program for DUIs
If you are eligible for the military DUI diversion program and want to use it, you or your DUI defense lawyer would ask the judge to put you in it. It is in the judge’s discretion to do so. Our criminal defense attorneys have found that they will generally only divert your DUI case if it is a first-offense DUI. Other prior convictions, like for domestic violence, can be an obstacle, as well.
If the judge decides to divert your case, you would then fill out a waiver of your right to a speedy trial. The judge would then postpone the DUI case in a deferred adjudication while you complete the program.
This is different from many other diversion programs in California, which require you to plead guilty in order to get into the program.
Similar to Veterans Courts in California, completing the DUI diversion program generally requires the following steps:
- creating a treatment plan for your condition,
- going to all sessions of your treatment program,
- taking random drug or alcohol tests,
- abstaining from drugs or alcohol during the program,
- not committing another crime while on diversion,
- performing community service,
- attending substance abuse counseling, and
- complying with any other conditions set by the diversion program.
Diversion programs generally last for between 1 and 2 years. They cannot last longer than 2 years. If you complete the program early, the court may terminate the program and end your case.
Upon completing the diversion program, the judge will dismiss your case. The criminal case and arrest record will not be available to the public. You can deny that they are a part of your criminal record on most job applications.
Eligibility for DUI diversion
According to California state law, military diversion is only available for:
“…a misdemeanor offense if both of the following apply to the defendant: (1) The defendant was, or currently is, a member of the United States military.(2) The defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service. The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.”[1]
This creates 3 distinct requirements:
- you are, or were, in the U.S. military,
- you are suffering from a covered health condition that is a result of your military service, and
- the offense is a misdemeanor.
The DUI-defense attorneys at our law firm have found that people tend to have questions about the second and third requirements.
Military-related health condition
California’s military diversion statute lists 5 health conditions that can make you eligible for diversion after a DUI arrest. They are:
- military sexual trauma,
- traumatic brain injury (TBI),
- post-traumatic stress disorder (PTSD),
- substance abuse, and
- other mental health issues.
These conditions, however, have to be related to your time in the Armed Services.
For example: Al served in the Navy and has a traumatic brain injury. However, he got the brain injury in a car accident after he returned to civilian life. Because it was unrelated to his time on active duty, he is not eligible for a diversion program in his California DUI case.
Misdemeanor DUIs
Military diversion is only available for misdemeanor offenses. These are criminal offenses that carry less than 1 year in jail.
Examples of misdemeanor DUI charges are often:
- driving under the influence of drugs or alcohol (Vehicle Code 23152(a) VC),
- driving with over 0.08% of blood alcohol content (BAC) (Vehicle Code 23152(b) VC), and
- drug possession (Health and Safety Code 11350(a) HS).
To be misdemeanors, there typically cannot be any aggravating factors.
What happens if you fail the program
If you are put into the military DUI diversion program, but then you do not complete its requirements, the criminal proceedings in your DUI case will resume. The criminal charges will get filed by the district attorney and you will have to defend against it in superior court. You could face up to a year of jail time on the misdemeanor charge.
This can also happen if the court is unsatisfied with your progress in the course. Your diversion program will be making regular progress reports to court.
Impact on your license suspension
The military DUI diversion program only halts the criminal portion of your drunk driving case. The DMV hearing will continue. That is where issues related to your driver’s license suspension are resolved.
Legal Citations:
[1] California Penal Code 1001.80 PC.
Additional Reading:
For more in-depth information, refer to these scholarly articles:
- When a Veterans’ Treatment Court Fails: Lessons Learned from a Qualitative Evaluation – Victims & Offenders
- Worthy of Justice: A Veterans Treatment Court in Practice – Law & Policy
- Veterans Treatment Court research: Participant characteristics, outcomes, and gaps in the literature – Journal of Offender Rehabilitation
- A National Study of Veterans Treatment Court Participants: Who Benefits and Who Recidivates – Administration and Policy in Mental Health and Mental Health Services Research
- Veterans Treatment Court: A Proactive Approach – New England Journal on Criminal & Civil Confinement
