If you or your loved one is arrested for committing a misdemeanor crime, especially for the first time, it could be challenging to know what will happen next. Fortunately, with Assembly Bill 3234 on January 1, 2018, the State of California has dramatically expanded opportunities for court-ordered diversion programs. Also known as ''Misdemeanor Diversion Program'', PC 100.95-100.97, Assembly Bill 3234 can offer you a chance to have your case erased or dismissed once you complete your court-ordered diversion program. This could happen even if the prosecuting attorney objects to it. It is therefore advisable to consult a competent criminal defense attorney immediately after an arrest for a misdemeanor crime. Your proactive action could help protect your reputation, immigration status, professional license, and employment status.

California Misdemeanor Diversion Program And Your Eligibility

The Misdemeanor Diversion Program Penal Code 1001.95-1001.97 enhances the chances of diversion for different misdemeanor cases in California. If you complete your court-ordered treatment or education program, the court could erase or dismiss your misdemeanor charges. The diversion program does not require the defendant to enter a “guilty” or “no contest” plea to qualify. Since the program targets first-time offenders, no charge will be entered if you complete the following:

  • Community service
  • Restitution to the victim
  • Drug treatment program
  • Alcohol classes
  • Anger management
  • Adhere to any restraining or protective order that was issued in the case, and
  • Combination of other conditions set by the judge

Your financial inability to pay restitution cannot be used as legal grounds to charge you for failing to adhere to a diversion program's terms. To benefit from a diversion program, you must seize the opportunity and convince the court that you are eligible. The court will review your background, criminal history, character, and the circumstances related to your charges. A competent attorney can help convince the court that you are eligible for a diversion program.

There are many laws in California offering diversion programs for cases that involve mental health and drug addiction. However, some offenses do not qualify for a diversion program. Some defendants also do not qualify because of prior arrests or convictions. For example, you would not be eligible under Assembly Bill 3234 misdemeanor diversion if the court convicts you of the following crimes:

  • Domestic battery — Penal Code 243e (1)
  • Corporal Injury to a spouse — Penal Code 273.5
  • Stalking — Penal Code 646.9
  • A misdemeanor sex-related crime that subjects you to register as a sex offender according to PC 290

Since Assembly Bill 3234 came into effect, it has served as a remedy for many defendants facing misdemeanor charges who do not want a conviction on their record. 

After Completing A Misdemeanor Diversion Program In California

You will reap several benefits after completing a misdemeanor diversion program. The benefits will have both long-term and immediate impacts. Under the long-term effects, completing your program allows you to avoid having a criminal record. 

The court could dismiss your charges after adhering to all court-ordered conditions. It will be as if the police never arrested you, given that the arrest will never appear on your criminal record. You can lawfully allege that you were never arrested for the offense or convicted for the crime for which you were placed in the diversion program. In addition, no licensing, benefit, or employment decision will be based on the arrest. Under immediate benefits, you will avoid a contentious, costly, and lengthy trial.

There are many social benefits of being free of a criminal record. Having a conviction or an arrest on your background check could make it hard for you to find a place to live or a job. It could also be hard for you to become a productive person in society. You will not face these challenges if you do not have a criminal record. 

Unfortunately, even if you complete a misdemeanor diversion program, the Department of Justice in California can still access the information about your arrest if you apply for employment as a peace officer. Additionally, if you are asked about your past arrests during the hiring process, you must answer that you were once arrested.

Available Pretrial Diversion Programs In California

Especially if you have a prior offense, you could be wondering if you are eligible for a misdemeanor diversion program. The good news is that several pretrial diversion programs in California have different eligibility requirements. They include: 

  • Drug Diversion — PC 1000
  • Mental Health Diversion — PC 1001.36
  • Military Diversion — PC 1001.80

Drug Diversion Program— Penal Code 1000

Previously called the ‘’Deferred Entry of Judgment’’ (DEJ), PC 1000 outlines this pretrial diversion program offenses of simple possession. The program permits non-violent drug offenders in California to receive education and treatment instead of jail time. Participation in PC 1000 drug diversion was renamed a pretrial diversion program effective January 1, 2018. Currently, you can plead not guilty to eligible charges and take part in the drug treatment. 

Once you complete the program, the court will dismiss your charges. However, the court will automatically declare you guilty if you fail to complete the program. You will have a right to a trial before a judge or a California bench trial.

The crimes for which you can participate in the PC 1000 pretrial diversion program are:

  • Possession of a toxic substance for huffing — PC 381
  • Lewd conduct related to being under the influence of a controlled substance — PC 647f
  • Soliciting someone to commit a crime to facilitate the defendant’s personal use of narcotics — PC 653(f) (d)
  • Business and professions code 4060
  • Possession of a controlled substance — HS 11350
  • Unlawful possession of cannabis — HS 11357
  • Unlawful activation of cannabis — HS 11358
  • Possession of drug paraphernalia — HS 11364
  • Aiding or abetting the use of an unlawful controlled substance — HS 11365
  • Possessing or using a forged prescription to obtain drugs for personal use — 11368
  • Unlawful possession of certain prescription sedatives — HS 11375b
  • Possession of meth for personal use — HS 11377
  • Being under the influence of a controlled substance — HS 11550
  • Possessing an open container of cannabis in a motor vehicle — VC 23222

The controlled substances covered by the above statutes include marijuana, cocaine, ecstasy, and heroin.

How A Drug Diversion Program Operates

Pretrial diversion programs must have the following qualities:

  • First, programs should offer free services to the participants — The programs must have been deemed by the court and the county drug program administrator to be effective and credible.
  • The program must be certified by the county drug program administrator according to chapter 1.5 of Title 8 of the California Penal Code, starting with PC 1211

You could ask to be referred to a program in any county as long as it is certified. A pretrial diversion will take not less than 12 months and not more than 18 months. However, the court could allow an extension of the period to complete an approved drug treatment program upon showing good cause. 

The court could terminate your participation in PC 1000 pretrial diversion because of the following reasons:

  • If the court convicts you of a crime that reflects  a propensity for violence
  • If you fail to obtain drug treatment or comply with any condition of the program
  • If the court convicts you of any felony

The probation department, the judge, or the prosecuting attorney can initiate a motion to terminate your participation in the pretrial diversion program. The court will then schedule a hearing to decide if they should terminate your pretrial diversion. If the court discovers that you have been convicted of any offense outlined above or you are not performing satisfactorily in the assigned program, then your original case will move forward.

Your eligibility For Drug Diversion Program

The prosecuting attorney will examine your case and determine your eligibility for a drug diversion program. The prosecutor will notify you and your attorney in writing about your eligibility. The prosecutor's notification of your potential eligibility will include:

  • A detailed procedure for a drug diversion program
  • A general explanation of the authorities and duties of the prosecuting attorney, the probation department, the court in the process, and the program
  • A statement that you have to plead not guilty to the charges
  • Waiver of the right to a speedy trial, or speedy preliminary hearing and trial by the jury
  • Information that once you  complete the drug treatment and upon the positive recommendation of the program authority, then the court will dismiss your charges
  • A statement outlining that a drug diversion could be terminated if you fail to adhere to the treatment or any condition under the program or if you commit an offense that will make you ineligible.
  • A statement about your rights concerning the criminal record disposition and retention, how you could answer the questions about your arrest and a drug diversion following successful completion of the program

The court could also order the probation department to investigate your case. During the probation officer’s investigation, he/she will consider your age, prior controlled substance use or possession, and educational background, among others. The probation department will advise the court on your eligibility, and then the court will decide.

Mental Health Diversion Under PC 1001.36

California's Mental Health Diversion permits you to receive mental health treatment if you are accused of a crime. It is a form of pretrial diversion in California outlined in PC 1001.36. This program allows you to postpone further action in your case to participate in a treatment program. The court can request the treatment at any time in a criminal case before you are sentenced.

Eligibility For Mental Health Diversion

Under California law, misdemeanor and felony defendants are eligible for mental health diversion programs. However, you can only participate in this program if you meet the following:

  • If you suffer from a mental health condition other than an antisocial personality disorder, borderline personality disorder, or pedophilia
  • Your mental disorder played a significant role in the commission of the charged crime
  • In the opinion of a qualified mental health expert, you would respond to mental health treatment
  • You consented to diversion and waiver of your right to a speedy trial
  • You agree to comply with treatment as a condition of diversion
  • The court is satisfied that you will not pose an unreasonable risk of danger to public safety

To qualify for PC 1001.36 diversion, you must also have any of the following conditions:

  • Post-traumatic stress disorder
  • Bipolar disorder
  • Schizoaffective disorder
  • Schizophrenia

However, you are not eligible for mental health diversion if you have the following conditions:

  • Pedophilia
  • Antisocial personality disorder
  • Borderline personality disorder

You can prove a mental disorder by presenting a recent diagnosis from a qualified mental health expert. The expert could rely on the following evidence:

  • Arrest reports
  • Your examination
  • Your medical records

The court must be satisfied that your mental disorder played a significant role in the charged offense to qualify for a mental health diversion. The court could conclude this if you exhibit symptoms of the disorder at the time of committing the said crime. While determining this, the court will review any credible and relevant evidence, including:

  • Medical reports
  • Reports or records by a qualified medical expert
  • Police reports
  • Witness statements
  • Preliminary hearing transcripts 
  • Statement by your mental  health treatment provider

Penal Code 1001.36 Treatment Period

Under PC 1001.36, mental health diversion takes a maximum of two years. It can involve out-patient and in-patient treatment. The court could consider the following before approving the treatment program:

  • The best interests of the community
  • The request of the defense
  • The needs of the defendant
  • The request of the prosecution

Mental Health Diversion Payment

The payment for mental health treatment comes from public and private funds. If you cannot afford private treatment, the judge can refer you to a county mental health agency or any existing collaborative court. 

If you complete the treatment program, the court will dismiss your charges. You will be considered to have completed a program successfully when you:

  • Have complied with the requirements of the diversion
  • Have a plan in place for long-term mental health care
  • Significantly avoided new violations of law unrelated to your mental health condition

Veterans Diversion Or Military Diversion Under PC 1001.81

Active duty military personnel and California veterans suffering from trauma or mental health issues qualify for military diversion. It is a special type of diversion program in California. It is an alternative to a jail term imposed on misdemeanor criminal charges against active military members or veterans. 

You do not have to plead guilty or no contest to qualify for military diversion under PC 100.81. Instead, the court will suspend criminal proceedings so that you participate in the education and treatment program. You must consent to waive your right to a speedy trial. The court will dismiss your charges once you complete the military diversion. If you fail to complete the program, your criminal process will resume.

Eligibility For Military Diversion

You could be eligible for military diversion if you suffer the following because of your military service:

  • Mental health problems
  • Traumatic brain injury
  • Post-traumatic stress disorder
  • Military sexual trauma
  • Substance abuse

Often, only first-time offenders can access the military diversion. However, if you are accused of a low-level and non-violent felony or have a prior conviction for the same crime, you will be referred to a veteran’s court.

Crimes That Make You Eligible For Military Diversion

You will be eligible for a military diversion if you are accused of a misdemeanor charge. Common misdemeanor charges that veterans often face in California include:

  • Disturbing the peace — Penal Code 415
  • Drunk in public — Penal Code 647f
  • Driving under the influence — VC 23152(a) and driving with a BAC of 0.08% VC 23152(b)
  • Drug possession — HS 11350
  • Assault — Penal Code240
  • Battery — Penal Code 242

Treatment Programs Available Under Military Diversion

The judges will determine if you should participate in a community-based or federal treatment service program. Treatment programs with a record of successfully treating defendants who suffer from trauma due to their military will receive preference. 

You could also participate in programs operated by the United States Department of Defense or the United States Department of Veterans Affairs. The assigned treatment program and the court can work with the two departments to maximize services and benefits provided to a veteran.

Military diversion programs often take 12-24 months. Under the law, the time during which a criminal case against you could be diverted shall not exceed two years. If you fail to complete your military diversion, your normal case will proceed.

Find A Los Angeles Criminal Attorney Near Me

Being arrested for a crime does not necessarily mean you will be convicted in court. If you are eligible for a diversion program, you can avoid a conviction, a criminal record, possible jail time, and other consequences of a criminal conviction. Advocating and negotiating for diversion terms is critical. An experienced attorney will help you understand misdemeanor diversion programs and determine your eligibility. Los Angeles Criminal Lawyer is a top-rated criminal defense firm that can help you receive a favorable outcome for your case. Call us at 310-502-1314 and talk to one of our attorneys.