In addition to pre-plea military diversion under Penal Code section 1001.80 for those charged with a misdemeanor offense, PC 1170.9 provides post-plea military diversion for those charged with probation eligible felonies and misdemeanors. Thus, 1170.9 veterans diversion differs from 1001.80 diversion in a few significant ways. First, it is post-plea diversion. This means the person must either be found guilty after a trial, or plead guilty or no contest to trigger eligibility. A conviction must be recorded before the person is statutorily eligible under this code. Secondly, this military diversion applies not only to misdemeanors, but also to probation eligible felonies. In other words, if you’re charged with a wobbler offense (one that could be charged as a misdemeanor or felony), you may be eligible. Lastly, 1170.9 diversion can last for as long as the person would have been sentenced to jail or prison, potentially longer than the 18-month ceiling for the duration of 1001.80 diversion.
PC 1170.9 post-plea military diversion has several benefits. The first, and most attractive benefit is that the person is allowed to participate in treatment rather than being incarcerated. This is a big deal if the person is facing serious jail or prison-time. The person may be ordered into a residential treatment program as well.
The second benefit is that if the person successfully completes the diversion, the court may then dismiss the charge with what is commonly referred to in California as an expungement.
The third benefit is that the person actually receives treatment. Some legislators finally listened to veteran calls for help, and answered with an intelligent solution for once: help our veterans when they need it through treatment rather than incarceration! In most cases treatment is through the Veterans Administration, which coordinates treatment plans for the veteran (applies to active duty military personnel as well). Lastly, this military diversion is a form of restorative justice, meaning the purpose is not punishment, it’s rehabilitation and reconciliation with the community. Which makes sense because we ultimately want our military members to be productive, well-adjusted members of our communities.
The eligibility requirements for PC 1170.9 veterans diversion is found directly in the statute in subdivision (a):
In the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that he or she committed the offense as a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant 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 service. The court may request, through existing resources, an assessment to aid in that determination.
A breakdown of 1170.9 reveals several requirements:
- The person must be a veteran or current member of the US military
- The person must have been convicted of a crime punishable by jail or state prison (misdemeanor or wobbler)
- The person must allege that s/he committed the offense as a result of a) sexual trauma; b) traumatic brain injury; c) post-traumatic stress disorder (PTSD); d) substance abuse; e) or other mental health problems stemming from service in the US military
- The court must find that the person may be suffering from one or more of the above mental illnesses, AND that the mental health problem stems from the person’s service
- The court must also find that there are resources for treatment available for the veteran or current member
Notes on Process
There are several documents that need to be filed with the court: a) MIL-100 form; b) DD-214 form; c) Request for Release of Confidential Medical and Health records from VA. It is imperative that the documents be properly filled out. A lawyer should be used for requesting this veterans diversion as the process is complicated and requires special knowledge.
The process usually begins with filing the MIL-100 notification of military member status with the court which serves to put the court on notice that the person is a veteran or member of the military. If the veteran or current military member is convicted or enters a guilty or no contest plea, at that time a request should be made for 1170.9 diversion. A motion should be filed with the court setting out the person’s eligibility and required status, including mental health information. The person must allege that s/he suffers from a qualifying illness stemming from military service, and that the person committed the crime as a result of his/ her military service. In most courts, a separate military/ Veteran’s Treatment Court exists for the purpose of handling military members’ diversion cases. The vet will be referred to this court, where an assessment will be made of whether the person qualifies for veterans diversion under 1170.9. If the person does qualify, the person will be ordered into diversion and a treatment plan will be assigned to the person. This veterans diversion can be extremely intense and burdensome, requiring a full-time commitment to rehabilitation. A desire to want treatment is a must.
Once the person completes the treatment for the period required, the court may then dismiss the charge through the expungement of the person’s record. Thus, the person avoids jail or prison, receives important treatment, and may have his or her record sanitized through an expungement.
Call Veterans Diversion Lawyer Matthew Luzaich for a free assessment of your potential eligibility for this veterans diversion. He is happy to assist current members of our military and veterans regarding their criminal cases. Call today for a Free Consultation.
*The information contained in this article is for information purposes only and should not be construed as legal advice. It does not create an attorney-client relationship. It is a free resource for veterans and military personnel who may consider this relief. A conversation with your attorney, or with our law firm is paramount to understanding the risks, benefits, and legal aspects of veterans diversion. This is a complicated process and an individual assessment of your case must be made by a lawyer. Do not rely on this information for your unique case.