Military Diversion in CA. Penal Code 1001.80. Criminal Defense Lawyers Explain Misdemeanor & Felony Military Diversion in Criminal Court.
- Criminal Defense Lawyers
- Aug 24
- 6 min read
Military diversion is a criminal court procedure whereby a criminal defendant’s criminal prosecution is postponed and “diverted,” from a course of prosecution to a possible course of dismissal of the criminal charges.
There are several types of diversion programs in California, including Judicial Diversion, Mental Health Diversion, Drug Court Diversion, DA Diversion, and Military Diversion. This article is dedicated to a summary of military diversion. Further information may be found at California penal code 1001.80 and by contacting our CA criminal defense lawyers today for a free consultation.
Military diversion is available to military personnel (both active duty and veterans). Most, but not all, felony and misdemeanor crimes may be diverted through military diversion, but qualifications for military diversion depend on several factors, including whether the district attorney has charged a misdemeanor, or a felony, the exact criminal charge levied against the criminal defendant, and other factors (See Below).
Example: David, a U.S. Marine Veteran, is charged with public intoxication (PC 647(f)). David suffers from PTSD related to his military service and he self-medicates with drugs and alcohol to calm PTSD related symptoms. If the criminal court accepts David into a military diversion program (PC 1001.80 Program), David might be allowed to enter a substance abuse treatment program, successful completion of which will lead to his criminal charges being dismissed.
Qualifications for Military Diversion
Military diversion is allowed for most misdemeanor and felony criminal charges (PC 1001.80). To qualify, the defendant must meet the following criteria:
Misdemeanor Military Diversion: To qualify for misdemeanor military diversion, the defendant must meet all the following:
The defendant must be a current, or former, member of the United States military (i.e., Navy, Marines, Coast Guard, Army, Space Force, Air Force, Merchant Marines, etc.) [PC 1001.80(b)(1)].
The defendant suffers from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems because of his or her military service.
Example: David, a Navy Veteran, is charged with misdemeanor criminal threats (PC 422). David suffers from Post Traumatic Stress Disorder (PTSD) related to his military service. Result: David might qualify to have his criminal threats case postponed (diverted) so that he can be treated for his military-related PTSD. If David successfully completes the assigned treatment, his criminal charges will be dismissed.
Note: The Court will look to find a connection between the defendant’s military service-related mental disorder and his or her criminal conduct. Without a military service-related mental disorder that has a reasonable connection to the defendant’s criminal conduct, the judge will not likely allow military diversion, even in a misdemeanor case.
Example: David, a military veteran who suffers from PTSD, is charged with misdemeanor solicitation of prostitution (PC 647(b)). David requests military diversion pursuant to PC 1001.80, but the court does not grant David’s request because David’s PTSD has no relationship to his crime (i.e., the crime of soliciting a prostitute is motivated by sexual compulsion or sexual satisfaction).
Felony Military Diversion: To qualify for felony military diversion, the defendant must meet all the following:
The defendant was, or currently is, a member of the United States military.
The defendant suffers from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or a mental health problem because of his or her military service, and
The defendant’s condition was a significant factor in the commission of the charged offense.
Note: The court shall find that the defendant’s condition was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.
Example: David is charged with Felony Welfare Fraud (WI 10980). David is a military veteran who suffers from PTSD, but his welfare fraud is not connected to a mental disorder that stemmed from his military service. Rather, his crime was motivated by a desire to defraud the government and receive money.
Felony crimes related to violence or substance abuse, which have a close connection to prior military service, are the types of felony crimes that are more likely to qualify for military diversion. These include, but are not limited to, the following:
Assault with Deadly Weapon (PC 245),
Criminal Threats (PC 422),
DUI (VC 23152),
Possession of Controlled Substance (HS 11350),
Inflict Corporal Injury to Spouse (PC 273.5),
Aggravated Battery (PC 243),
Branding a Firearm (PC 417),
Kidnapping (PC 207),
Resisting Executive Officer (PC 69),
Vandalism (PC 594)
Court’s Determination: When considering whether a defendant qualifies for military diversion in a felony case, the court may consider any relevant and credible evidence, including, but not limited to, a police report, preliminary hearing transcript, witness statement, statement by the defendant’s mental health treatment provider, report by qualified medical expert and more.
Time Waivers: If the Court finds that the defendant qualifies for military diversion pursuant to penal code 1001.80, the Court will ask the defendant to “waive his speedy trial rights” so that the Court can place the defendant in an appropriate treatment program (i.e., mental health treatment program, anger management, drug treatment, alcohol treatment, etc.).
Reinstatement of Military Diversion: If it appears to the court that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from the treatment and services provided under the military diversion program, after notice to the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted.
Unsuccessful Military Diversion: If the court reinstates the defendant in the military diversion program but subsequently finds that the defendant is not performing satisfactorily in the military diversion program, or that the defendant is not benefiting from military diversion program, the court may end the military diversion and order resumption of the criminal proceedings.
Treatment Programs Offered: The Court will attempt to place the defendant in a military treatment program that gives preference to, and has a history of, successfully treating veterans who suffer from sexual trauma, traumatic brain injury (TBI), post-traumatic stress disorder, substance abuse, or mental health problems as a result of military service, including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs.
Military Diversion Time Length: The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months.
Dismissal of Criminal Proceedings: Upon successful completion of a military diversion program, the arrest upon which the military diversion was based shall be deemed to have never occurred. The defendant may indicate in response to a question concerning their prior criminal record that they were not arrested or diverted for the offense (with limited exceptions [See Below]).
Military Diversion & Employment: A record pertaining to an arrest resulting in successful completion of a military diversion program shall not, without the defendant’s consent, be used in a way that could result in the denial of any employment, benefit, license, or certificate.
Exception: The defendant shall be advised that, regardless of their successful completion of military diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice (DOJ) in response to a peace officer application request. The applicant is not at liberty to misrepresent the fact of his or her military diversion on a peace officer application. Other exceptions may apply. For more information, see our CA criminal defense lawyers for a free consultation.
DUI & Military Diversion: A misdemeanor of felony prosecution for a violation of vehicle code 23152, or 23153 (Driving Under the Influence of Alcohol or Drugs, or Both), may be diverted (postponed) pursuant to military diversion. However, the Department of Motor Vehicle (DMV) may take administrative action against the defendant’s driving privilege after a citation for any DUI.
Ineligible Military Diversion Crimes: Some crimes are not eligible for military diversion by law. These include the following:
Murder (PC 187)
Voluntary Manslaughter
Sex Offense Listed in PC 290(c) (Except PC 314 Indecent Exposure & PC 287(b)(1) Oral Copulation on Minor)
Rape by Force or Fear (PC 261)
Lewd or lascivious act on child under 14 (PC 288(a))
Sexual Assault (PC 220)
Rape in Concert (PC 264.1)
Continuous sexual abuse of child (288.5)
Possession of Weapon of Mass Destruction (PC 11418).
Note: Not all sex crimes are listed in section PC 290. Therefore, some sex crimes are eligible for military diversion, including statutory rape (PC 261.5), operating a brothel (PC 315), prostitution (PC 647(b)), revenge porn (PC 647(j)), and engaging in public lewd acts (PC 647(a)).
For more information on military diversion, or California penal code 1001.80, contact our award winning and successful criminal defense lawyers today for a free consultation.
Our team of highly experienced criminal defense lawyers represent defendants charged with all misdemeanor and felony crimes in the Inland Empire, including the cities and courts of Riverside, Ontario, Rancho Cucamonga, Redlands, Rialto, Victorville, Hesperia, Yucaipa, San Bernardino, and More. Call today!
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