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Pretrial Diversion

California Pretrial Diversion Programs

In California, a pretrial diversion program is an alternative resolution of a criminal case to avoid jail time and a criminal conviction. These programs take you out of the criminal justice system and into supervised release or probation.

Your case can be dismissed upon successful completion of the diversion program. However, if you fail to meet the program's requirements, the district attorney could proceed with the prosecution for the original crime.

California Pretrial Diversion Programs
Pretrial diversion programs allows eligible defendants to avoid jail time and a conviction.

Pretrial diversion programs offer a different way to resolve a California criminal case. Traditionally, you are arrested by law enforcement, charged with a crime by the district attorney, and either plead guilty and get sentenced or plead not guilty and proceed to trial.

Pretrial diversion programs remove you from this traditional process between the arrest and the trial. Notably, some programs become an option after criminal charges are filed but before trial, while others might be available before you are even charged with a crime.

Pretrial diversion programs serve a dual purpose. They help alleviate the burden on local criminal courts by diverting some low-level, non-violent offenses. Simultaneously, they provide much-needed rehabilitation services to individuals who are often in dire need of them.

Diversion programs allow you to escape your mistake without a potentially life-long devastating criminal conviction or record. Some common examples of pretrial diversion programs include arrest for crimes like driving under the influence (DUI), drug possession, shoplifting, and domestic violence. Pretrial diversion programs focus heavily on rehabilitation and restitution for the alleged crime.

Pretrial Diversion - Quick Facts

  • California pretrial diversion programs allow eligible defendants to avoid jail time if they complete treatment and education courses.
  • Pretrial diversion is when a court suspends proceedings while a defendant completes court-ordered courses.
  • If successful, the court will dismiss and seal their criminal case.
  • Pretrial diversion means no time in jail or any conviction record.
  • Defendants charged with a crime can receive treatment and complete needed courses.
  • Pretrial diversion programs in California are excellent opportunities for defendants to resolve their cases.
  • Primary diversion programs are Penal Code 1000 PC drug diversion, Penal Code 100.36 PC mental health diversion, and Penal Code 1001.81 PC military diversion.
  • The most challenging part is qualifying for pretrial diversion and completing the program within the required timeframe.
  • Pretrial diversion can be complex, and you will need a lawyer who is familiar with the court process, judges, and prosecutors.
  • DUI diversion programs typically involve paying restitution to the victim if there was an accident, completing an alcohol rehabilitation course, driving with an ignition interlock device, and passing a driver safety course.

Penal Code 1000 PC - Drug Diversion Program

The most common type of diversion in California is related to drug offenses codified in Penal Code 1000 PC. Suppose a judge grants a drug diversion. In that case, they will be ordered to:

  • Complete a drug or alcohol program.
  • Follow specific terms and conditions of probation.
  • Pay victim restitution.

In many drug cases, the judge will "divert" non-violent misdemeanors such as simple drug possession if the defendant has no recent felony drug crime convictions. Drug diversion programs are generally not available for a defendant facing serious felony charges, such as the use of threats or violence in a drug smuggling case.

The drug charges in California that qualify for a diversion program include the following:

  • Health and Safety Code 11350 HS - possession of drugs.
  • Health and Safety Code 11364 HS - possessing drug paraphernalia.
  • Health and Safety Code 11377 HS - possessing methamphetamine.
  • Health and Safety Code 11358 HS - cultivation of marijuana,
  • Health and Safety Code 11368 HS - forging a prescription for narcotics,
  • Health and Safety Code 11550 HS - under the influence of drugs.

There are specific requirements a defendant must meet before they are eligible for PC 1000 drug diversion, such as the following:

  • The defendant has had no felony convictions within the past five years.
  • A conviction for certain crimes makes them ineligible.
  • The pending criminal charges must not involve violence or threats.

Penal Code 1001.36 PC - Mental Health Diversion

California Penal Code 100.36 defines mental health diversions, which a judge can grant for many offenses, including felonies.

Penal Code 1001.36 PC - Mental Health Diversion

However, certain crimes are not eligible for mental health diversion, including PC 187 murder, PC 192(a) voluntary manslaughter, PC 261 rape, and PC 288.5 continuous sexual abuse of a child.

Mental health diversion is not available for a defendant if their offense requires them to register as a sex offender and some violent crimes.

A mental health professional must be diagnosed under the Diagnostic and Statistical Manual of Mental Disorders. They must also state that the disorder played a significant role in the crime and that treatment will most likely help the defendant.

Certain types of diagnosis will make a defendant ineligible for mental health diversion, including antisocial and borderline personality disorder and pedophilia. The types of qualifying diagnoses from a mental health professional making a defendant eligible for diversion include the following:

  • Bipolar disorder.
  • Schizophrenia.
  • Post-traumatic stress disorder PTSD).

Before the court will grant a mental health diversion program, a defendant must meet certain conditions, which mainly include an opinion from an expert on how they would respond to treatment.

Penal Code 1001.80 PC - Military Diversion

Penal Code 1001.80 defines military and veteran diversion as a way for the court to divert only misdemeanor charges, such as driving under the influence. Both current and former military members are eligible for this type of diversion.

However, to qualify, a defendant will have to prove their military service caused them to suffer any of the following conditions:

  • Drug or alcohol abuse.
  • Traumatic brain injury.
  • Mental health issues.
  • Post-traumatic stress disorder.

The court will assign the terms of diversion, which generally include treatment programs to address any substance abuse or mental health problems. The court will also order defendants to follow probation terms to avoid further prohibited conduct once they complete diversion.

If a defendant accepts military diversion, their right to a speedy trial will be forfeited because the program takes time to complete.

What Offenders Are Eligible for Diversion?

Many pretrial diversion programs will only accept people with no prior convictions or a relatively clean criminal record, but some programs are more lenient.

Many have eligibility requirements but allow judges to make exceptions if somebody has a criminal history if it seems likely they would benefit more from the program than from a regular adjudication of their case.

What Offenders Are Eligible for Diversion?

Generally, diversion programs are for non-violent misdemeanors. Some pretrial diversion programs require you to plead guilty to the criminal charges before you can be diverted from the criminal justice system.

Nearly all pretrial diversion programs require finding that a defendant is not a threat to public safety. However, a defendant who has been accused of a violent offense is rarely eligible for a diversion program.

To complete diversion, a defendant must successfully complete several steps, such as getting a diagnosis and preparing documentation.

Each of these steps will require the assistance of an experienced California criminal defense lawyer. Other crucial steps for a diversion program include negotiating the terms of diversion and the actual hearing before the judge.

Pretrial diversion could be your best option, but we must review all the details closely to plan a strategy for the future. Please feel free to contact us for more information. The Hedding Law Firm is based in Los Angeles, CA.

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