If a combat veteran suffering from PTSD or TBI lands in the crosshairs of the law, unique mental and physiological factors must be taken into consideration by his or her attorney and the Court. Most often in cases where a veteran finds him or herself in legal trouble, there have been treatment or other systemic failures preceding it. In fact, the vast majority of the veterans we serve are first-time offenders with no criminal history. In other words, the accusation of criminal conduct is completely out of character. No one deserves the benefit of the doubt and a chance at rehabilitation like our combat veterans, and pretrial Military Diversion can step in to provide that fresh start and wipe even the arrest from their criminal record.
The Supreme Court has also recognized the societal value for leniency in cases where veterans are involved. In Porter v. McCollum the Court said “―[o]ur Nation has a long tradition of according leniency . . . in recognition of their service, especially for those who fought on the front lines . . . .” Porter v. McCollum, 130 S. Ct. 447, 448, 2009, p. 14.
As discussed in a prior article, the complications and symptoms of PTSD and TBI can sometimes form a complete defense. However, when that Defense is not an option, other options exist in California to keep a veteran’s criminal record clean, while obtaining needed treatment and support. Options in California include, Veterans Court; alternative sentencing pursuant to California Penal Code (P.C.) § 1170.9, and “Diversion” under P.C. § 1001.80.
Referred to as “Military Diversion,” P.C. §1001.80 took effect on January 1, 2015. This statute is an often-overlooked tool to save current and former military members charged with misdemeanors in California Criminal Court. “Pretrial diversion” is a system implemented to provide a second chance to qualifying offenders. P.C. 1001.80 was enacted to recognize that active and former military personnel suffering from the wounds of war should receive particular consideration regarding diversion opportunities. Therefore, veterans who may be suffering from PTSD, TBI, substance abuse, or other mental health problems may be eligible under this law.
While Diversion is not a completely “free pass,” it is a program through which the accused never goes to trial, never pleads guilty, and ultimately has the arrest removed from the record after completion of a treatment program.
It’s as though the arrest never happened.
If you are a veteran accused of engaging in criminal conduct, you may be able to avail yourself of the option of Military Diversion. Consider the following requirements for eligibility under P.C. § 1001.80 :
- You must be charged with a misdemeanor;
- You must be a current or former member of the military, P.C. § 1001.80(a)(1), and;
- Must suffer from “sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems” as a result of your military service. (P.C. § 1001.80(a)(2).
Military Diversion under PC 1001.80 has two enormous advantages:
Secondly, if granted and successfully completed, you never plead guilty to anything at any point in the process. You never have any type of conviction on your record. In fact, the “arrest upon which the diversion was based shall be deemed to have never occurred.” (P.C. § 1001.802.)
Therefore, your arrest and charges can never “be used in any way to deny employment, benefit, license, or certificate.”3 (P.C. § 1001.80(i).) In other words, your criminal record remains clear. It’s as though nothing ever happened.
The P.C. § 1001.80 Process
The P.C. § 1001.80 process starts when your attorney files a motion with the court to be accepted into the program. This will happen sometime after your arraignment, but before trial. Military Diversion requires that the Defendant prove himself to be both “eligible” and suitable.”
In most counties, the motion will be filed in the court in which you are arraigned, but then sent out to a special department that hears all military diversion cases in that particular branch. In some counties, the original court will determine the threshold issue of “eligibility,” then send the matter to another judge for a separate hearing to determine “suitability.” Military diversion per P.C. § 1001.80 is not Veteran’s Court, which has much stricter requirements and more strenuous oversight than P.C. § 1001.80.
“Eligibility” is the easy part. This simply requires a showing that you were either are charged with a misdemeanor (the accusatory pleading, complaint); a current or former member of the military (DD-214, orders, etc); and you have any qualifying diagnosis (DOD medical records, VA records, VA award letter, military medical records, letter from a treating doctor, or any other civilian medical record).
An Honorable Discharge is not necessary, nor do you need to have any actual deployment or combat history. You may be on active duty, a reservist, or a veteran dating back to any era. Any current of former member can qualify.
“Suitability” is where experience and a deep understanding of the factors involved in 1001.80 become important. Your motion should thoroughly but concisely present and analyze the right records and information necessary to establish that you will be successful in a diversion program. You must demonstrate why your history and experiences warrant such diversion. It should contain a Treatment Plan supported by a statement from at least one of your treating providers. Another factor that matters for “suitability” is whether you have ever been granted diversion before or whether you have a prior conviction for the same or similar offense.
It is not unusual that once the judge and prosecutor understand a deserving combat veteran’s history, details of actions while on deployment, and struggles upon return, they will tend towards approval. However, success begins with proper preparation and advice from an attorney that knows what records might exist, and who can select, assemble, and effectively present those records to provide a clear and full picture of your unique circumstances.
If the pretrial diversion is granted, P.C. § 1001.80 states that the judge shall place the defendant in federal or community based treatment programs with a demonstrated history of treating the range of mental health problems covered by the statute. (P.C. § 1001.80(e).) However, practically, your attorney should work with you and your own treating providers, especially the VA, to develop and present to the judge a workable Treatment Program that meets your specific needs.
Once the court determines the final requirements of the treatment plan (some counties require a completely separate hearing to determine the requirements of the plan), the criminal case is suspended as the program is completed. You or your attorney will have to appear every 90 days to 6 months to provide progress reports from your provider(s) on how you are doing.
As long as you are complying satisfactorily with the program and do not break the law again during the diversion period, your attorney will file a “request to terminate” diversion. At that time, the judge will dismiss the charges and the records of the arrest will be sealed.
A Felony Charge is Not Necessarily in Immediate Disqualifer
The “Misdemeanor” requirement does not necessarily preclude you from P.C. 1001.80 military diversion simply because you have been charged with a felony. Certain charged offenses provide for either a county jail sentence or a state prison commitment and are therefore called “Wobblers.” A “Wobbler” charge would allow the court to reduce a felony violation down to a misdemeanor pursuant to California Penal Code § 17(b). The magistrate can reduce a felony to a misdemeanor after considering the circumstances of the case.4 The magistrate does not need the prosecution’s consent to reduce a charge to a misdemeanor.
With some early investigation and development of evidence, felony charges may be reduced to a misdemeanor at the Preliminary Hearing, which is an initial proceeding before a judge or magistrate to determine probable cause. If the charges are reduced, the bar against seeking Military Diversion would be removed. Thus, it is often crucial that the attorney present all of facts and circumstances of military service and mental health history in order to obtain this reduction in the charges, in order to preserve that critical P.C. § 1001.80 eligibility.5 In this regard, the Preliminary Hearing can prove to be very important for potentially eligible veterans.
Even if a request to reduce the charges to a misdemeanor is unsuccessful at the Preliminary Hearing, there are still methods that can be employed to obtain a dismissal or a reduction in the charges prior to trial. These methods include a P.C. § 995 motion, pretrial negotiation, and other motions. During this time, you and your lawyer may again assemble your mental health records, get letters, and pieces of your military record, to present to the Prosecutor and convince them to cooperate with you to reduce the charges and make P.C. § 1001.80 available to you, despite your original felony charge.
Helpful Materials to Gather
Whether it be award citations, VA award letters, the right medical and mental health records, statements from persons you served with, and getting input from treating doctors. Helpful items include:
- VA compensation and pension package
- Any VA disability rating
- Any DOD disability rating
- Medical records while on active duty
- Separation physicals and medical evaluations
- Current Medical and treatment records
- Support letters from family
- Character letters
- Awards and citations
- Letters or citations discussing battlefield experiences, trauma, or heroic acts
- Letter from caseworker, mental health provider, or VA rep describing treatment and recommendations
- Letters from your current support network, spouse, parents, fellow veterans that will help you be successful in your treatment
As stated, you should devise a “Treatment Plan” to propose to the judge. The Treatment Plan is a great opportunity to work proactively and diligently to demonstrate just how committed you are to this process. This way, you and your providers have control over the plan.
A major benefit of Military Diversion is that the Treatment Plan for diversion is not as strenuous in its requirements as Veteran’s Court. However, the program will still typically last between 1-2 years, but may be no longer than 2 years. (P.C. § 1001.80(h).) The judge will retain jurisdiction and continue to monitor the case.
Examples of what may be included in the plan. Often the criminal charges arise at a time when there has been a lapse or gap in mental health treatment. Thus, it is important to demonstrate to the judge how the treatment failure happened and how it will be remediated. We have found that accepted Treatment Plans can take many different forms. Some have included agreement to engage in Cognitive Processing Therapy (CPT), along with their regular treatment sessions for those who have not previously engaged in the 12-week program. CPT is a manualized therapy program that teaches you how to evaluate and change the thought cycle since a given trauma.6 Acceptance and Commitment Therapy (ACT) is another supplemental program that has been a part of successful Treatment Plans we have presented. ACT is a “unique evidence-based psychological intervention that uses acceptance and mindfulness strategies, together with commitment and behavior change strategies, to increase psychological flexibility.” Group Therapy has also proven to be a useful part of some Treatment Plans. This has included, but has certainly not been limited to, National Alliance on Mental Illness programs, Mindfulness-Based Stress Reduction (MBSR) programs, AA, Substance Abuse counseling, a Family Recovery Program with the VA, and Readjustment Counseling. Regular Individual Psychotherapy sessions are also a part of nearly every successful plan.
An agreement from one or more of your counselors to provide Written Progress Reports will send a powerful message to the judge that you have a community of professionals willing to remain engaged and work with the court. You would be surprised how many would be willing to assist and provide short progress reports every 3-6 months.
Certainly, the P.C. § 1001.80 program is not always the right choice. You must be willing to complete the diversion. Additionally, you may wish to fight the charges to trial if you are not guilty. However, if you do not have a complete defense and want to engage in a program that will likely help you, military diversion, if granted, is a terrific opportunity to protect your criminal record.
As a Marine Corps veteran, Aaron Meyer focuses his work on advocating for veterans. He knows what returning combat veterans often face and has regularly fights for them in California and Military courts. If you want to explore whether you or a loved one can qualify for Diversion or what other options are available to fight your case, call Aaron Meyer at 949-388-3654.
- Some Prosecutors have claimed that Military Diversion should not be granted for DUI. While the Fourth District Court of Appeals in San Diego has agreed, the Second District in Los Angeles has said that Military Diversion may be granted for DUI. (Hopkins v. Superior Court, B270503; 9/1/16; C/A 2nd, Div. 4.) Because of this conflict between the courts, it is likely that the the California Supreme Court will step in and make a final determination of eligibility in DUI cases. In the meantime, eligible veterans still may be granted diversion for DUI, and in fact, Mr. Meyer has had 1001.80 military diversion successfully granted for DUI, even in San Diego. ↩
- On February 20, 2014 California State Senator Hancock introduced a bill (SB 1227), which was an act to add Chapter 2.9c (commencing with Section 1001.80) to Title 6 of Part 2 of the Penal Code, relating to diversion. This pre-trial diversion would be made available for any misdemeanor, and some non-violent felonies, to current or former United States Military personnel if those personnel were suffering from, amongst other infirmities, substance abuse. The Bill was amended in the California State Senate on May 27, 2014; Amended in the California State Assembly on August 4, 2014; passed the Assembly on August 21, 2014, and passed the Senate on August 27, 2014. (SB 1227 Enrolled; Senator Hancock) This law became effective January 1, 2015 codified at California Penal Code § 1001.80 and is the authority under which we bring these Motions to have a court allow veterans to participate in a pretrial diversion program. ↩
- There is an exception to this general rule however. Because of the qualification process in applications to become a peace officer, Military Diversion will not prevent disqualification during the application process. ↩
- People v. Manning, (1982) 133 Cal.App.3d 159; People v. Municipal Court (Kong), (1981) 122 Cal.App.3d 176 ↩
- People v Kunkel (1985) 176 CA3d 46 ↩
- See http://www.ptsd.va.gov/public/treatment/therapy-med/cognitive_processing_therapy.asp (last accessed Jan. 3, 2017). ↩