In 2015, California, through Senate Bill 1227, enacted a new military diversion program for current and former U.S. military personnel.  Under this new law military diversion is available to any veteran or current military personnel who is charged with a misdemeanor offense and “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.” Penal Code Section 1001.80(a)(2).  Thus, the requirements for eligibility are threefold:

  1. The person must be current or former military personnel (and it doesn’t matter if the person was honorably discharged or dishonorably discharged from service or if the person saw combat); &
  2. Currently is charged with a misdemeanor offense; &
  3. May suffer 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. Id.

The military diversion statute begins with this wording: “This chapter shall apply whenever a case is before a court on an accusatory pleading alleging the commission of a misdemeanor offense…” [emphasis added] PC 1001.80(a).  The wording is unambiguous with regard to the class of offenses it applies to: all misdemeanors. There are no caveats, exclusions, or words included in 1001.80 that the statute means anything other than it is applicable to any misdemeanor.

Unfortunately, a ruling in the Southern California Court of Appeal, Fourth Appellate District, on August 11, 2016 held that this code section is inapplicable to driving under the influence violations.  The court analyzed statutory canons of construction, noting that there is another statute that’s been on the books since the 1980’s which prohibits diversion of any kind in DUI cases.  The court analyzed several considerations including which statute was enacted last, which statute is more specific on the issue, and what the plain meaning and legislative intent behind the new diversion statute was.  The court found that the legislature must have known about the 1980’s statute, and therefore assumed DUIs would be excluded on that basis without their needing to write it into the statute.  The opposite argument was also made that the legislature knew about the statute precluding diversion and wrote an unambiguous statute that allows military diversion in ALL misdemeanor cases.  The legislature could have, and frequently does promulgate statutes that include exceptions and refer to preclusions that they want to apply to the new law.  That is not what happened here.  There is no mention that DUIs are excluded, nor that the previous Vehicle Code Section 23640(a) still applies.  An example of what the legislature routinely does when it actually does seek to exclude specific violations from the reach of a statute is to use language within the statute that gives clear directives like what is found in this illustrative statute: “Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code…” Vehicle Code Section 1203.4(b).  Or other exclusionary language such as: “Except as provided in paragraph (2)” VC 1203.4(c)(1).

The obvious purpose of the statute is to treat rather than punish our troops who have endured a traumatic experience causing some mental disorder which has a close relationship to criminal behavior.  Drunk driving requires as a prerequisite being under the influence of alcohol or drugs, or being above a .08% BAC, which in itself can arguably be considered evidence of substance abuse issues.  Did the legislature really intend to exclude a crime so closely related to substance abuse issues from the breadth of this rehabilitative statute?

Whether this military diversion applies to DUI cases is still to be seen.  It may require clarification from the legislature or the California Supreme Court.  What we do know (as of today at least) is that the military diversion does apply to all other misdemeanors at this time.  However, it would not be surprising to find out that there are other exclusions that courts find based on 30+ year old statutes.  So if you’re a military vet, or current military personnel, this clearly unclear military diversion statute could be of use to you, maybe…

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