Serving Veterans and Current Military Personnel

ARE YOU A MILITARY VETERAN OR STILL SERVING IN THE MILITARY? WE CAN HELP!

CALIFORNIA HAS APPROVED MILITARY DIVERSION FOR BOTH MISDEMEANOR AND FELONY CASES.

If you are or were a member of the Military, and your criminal charge has a connection to your military service, you may be eligible for this program. An example would be someone with PTSD overreacting when a Police officer starts asking them questions. Ask us about this area of the law. We appreciate the sacrifices you've made serving our country and we wish to honor and assist our military.

Anyone who served in the military may have situations that cause them to suffer trauma or mental health issues as a result of their military service. Veterans and active-duty personnel who suffer from trauma could be eligible for "military diversion," rather than receiving jail time or a conviction in California criminal cases. Successful completion of diversion means no conviction on your record.

Military diversion is approved under California law. This gives the judge the authority to suspend criminal proceedings for misdemeanor or felony crimes while the defendant receives treatment for their condition.

There are many veterans who suffer from Post-Traumatic Stress Disorder ("PTSD"), were victims of sexual trauma, Traumatic brain injury (TBI), or developed an addiction to alcohol or drugs.

In order to be eligible for military diversion, you must be a veteran or current member of the United States Military, and as a direct result of their service, suffer from a condition.

WHAT IS MILITARY DIVERSION?

California Penal Code defines military diversion in misdemeanor cases if both of the following apply:

"(1) Defendant was, or currently is, a member of the United States military. (2) Defendant might be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems due to their military service."

The court could request an assessment to aid in making a determination where the defendant is eligible. Unlike other California diversion programs, they are not required to plead guilty or no contest in order to obtain PC 1001.80 diversion.

The judge will postpone criminal proceedings while you are participating in getting treatment for your condition. Treatment is typically one on one counseling, AA meetings, group programs and even residential treatment if needed. These are services usually provided by the VA.

Once you complete treatment, your charges will be dropped. This is typically a one year period of review. If you fail to complete the program, then the criminal court process will proceed as usual.

Military diversion is usually available only for a first-time offender. If they have prior convictions, but have not received treatment, that may be a good reason to get approved for services.

MISDEMEANOR CRIMES QUALIFYING FOR DIVERSION (FULL LIST OF VEHICLE CODE AND PENAL CODE SECTIONS)

Under California Penal Code section 1001.80, military pretrial diversion may apply to a misdemeanor (or an eligible felony) that is not excluded by subdivision (o) of that section. The statute does not list every qualifying misdemeanor by number; instead, most misdemeanors can qualify if you meet the military-service and treatment-related criteria, except for the offenses specifically ruled out below.

Vehicle Code sections expressly addressed under PC 1001.80

• Vehicle Code section 23152 (driving under the influence of alcohol or drugs, etc.)—misdemeanor violations may qualify for military diversion notwithstanding Vehicle Code section 23640, per Penal Code section 1001.80, subdivision (n)(1).
• Vehicle Code section 23153 (DUI causing injury)—misdemeanor violations may qualify under the same subdivision.
• Penal Code section 1001.80, subdivision (n)(2): a defendant shall not be placed in military diversion for any offense related to driving under the influence other than misdemeanor violations of Vehicle Code sections 23152 or 23153 as identified in paragraph (1).

Penal Code: current charged offenses that do not qualify (PC 1001.80(o))

A defendant may not be placed into military diversion for the following current charged offenses listed in Penal Code section 1001.80, subdivision (o):

• Murder or voluntary manslaughter (subdivision (o)(1)).
• An offense for which a person, if convicted, would be required to register pursuant to Penal Code section 290, except for a violation of Penal Code section 314 (subdivision (o)(2)).
• Rape (subdivision (o)(3)).
• Lewd or lascivious act on a child under 14 years of age (subdivision (o)(4)).
• Assault with intent to commit rape, sodomy, or oral copulation in violation of Penal Code section 220 (subdivision (o)(5)).
• Commission of rape or sexual penetration in concert with another person in violation of Penal Code section 264.1 (subdivision (o)(6)).
• Continuous sexual abuse of a child in violation of Penal Code section 288.5 (subdivision (o)(7)).
• A violation of subdivision (b) or (c) of Penal Code section 11418 (subdivision (o)(8)).

Felony eligibility has additional requirements under Penal Code section 1001.80, subdivision (c), including that your condition was a significant factor in the offense; ask us how that standard applies to your case.

HOW DOES MILITARY DIVERSION WORK?

Your defense attorney can ask the court to place you in military diversion under Penal Code section 1001.80. That usually means filing a motion, presenting facts about your service and your mental health or trauma-related condition, and pointing the court to any records or evaluations that support eligibility. The court may request an assessment using existing resources to help decide whether the statutory criteria are met.

If the court grants diversion, you must consent to the program and waive your speedy trial right while the case is diverted. Criminal proceedings are postponed—not ended—while you participate in treatment and comply with court orders. Treatment may include individual counseling, substance abuse programs, group therapy, AA or similar meetings, and residential treatment when appropriate, often coordinated with VA or other military-aware providers.

During diversion, the responsible agency or agencies file progress reports with the court and the prosecutor at least every six months. If you perform satisfactorily and complete the program, the charges are dismissed at the end of the diversion period. Penal Code section 1001.80, subdivision (j), authorizes diversion for up to two years; many cases are structured around a one-year review period, but the actual length depends on what the court orders and what you need to finish treatment successfully.

Upon successful completion, the arrest underlying diversion is deemed not to have occurred for most purposes, and you may generally state that you were not arrested or diverted for that offense, with limited exceptions such as peace officer applications (see subdivisions (k) and (l) of Penal Code section 1001.80). If you do not complete the program or the court finds you are not benefiting from diversion, the court may terminate diversion and resume the criminal case.

STEPS TO PREVENT A DISHONORABLE DISCHARGE.

If you are on active duty, a civilian arrest—especially for DUI or DWI—can trigger military discipline in addition to whatever happens in California criminal court. The military often enforces strict alcohol and drug policies, and driving under the influence can be treated as a serious breach of good order and discipline.

Understand that many commands treat DUI-related conduct under a zero-tolerance or near zero-tolerance approach, and that your command may take administrative or disciplinary steps regardless of whether the civilian case is still pending. Do not assume that a favorable outcome in civilian court automatically protects your military career; the two systems are separate.

Steps to take if you are accused or arrested include: notify your military defense counsel or your command only as required by your situation and orders; preserve paperwork from the arrest; avoid discussing the facts publicly or on social media; request legal representation in civilian court immediately; and follow conditions of release and any military orders. Early intervention can sometimes affect how both the civilian prosecutor and your command view the case.

Consultation with an attorney who understands both California criminal procedure and the stakes for service members can help you map a strategy—whether that includes military diversion under Penal Code section 1001.80 where available, challenging the charges, or negotiating a resolution that minimizes harm to your record and career.

What will happen if I am arrested and convicted of an offense while serving in the military?

A civilian arrest or conviction does not replace military justice. Your command may still investigate and impose non-judicial punishment, administrative separation, or refer charges for court-martial depending on the alleged misconduct, your service record, and the facts of the case. Conversely, resolving the civilian case favorably—such as through diversion and dismissal—may still leave room for command action, though it can affect how severe that action is.

Criminal court proceedings follow California law and are handled by state judges and prosecutors. Military proceedings follow the Uniform Code of Military Justice and service regulations. You may need both a civilian criminal defense attorney for the state case and military defense counsel (or detailed counsel) for military matters. We can discuss the civilian side and coordinate with your military attorney as appropriate.

Consequences of a conviction or adverse military disposition can include loss of rank, pay, security clearance, specialty schools, and future reenlistment, as well as stigma that follows your career. That is why addressing charges early—with a clear plan for treatment, compliance, and advocacy—is critical.

DUI ISSUES – MILITARY CONSEQUENCES OF A DUI

A DUI arrest threatens your freedom to drive, your liberty in court, and your military career at the same time. In civilian court you face fines, probation, license suspension, and possible jail; in the military you face career-ending administrative action or court-martial exposure depending on the circumstances.

Protecting your career starts with getting experienced legal counsel in the California case. Your lawyer can examine whether military diversion under Penal Code section 1001.80 is available for a qualifying misdemeanor DUI (Vehicle Code sections 23152 or 23153), challenge the stop or chemical test, or negotiate alternatives where diversion is not an option.

Non-judicial punishment (Article 15 / NJP) and court-martial are separate from what happens in state court. Your command may move quickly; having a civilian strategy can support your military defense team's effort to present a complete picture of mitigation, treatment, and compliance.

California's military diversion law (Penal Code section 1001.80) is one tool that may allow veterans and service members whose condition ties to their service to obtain treatment and a dismissal in the civilian case. It does not limit the DMV from taking action on your driving privilege; your attorney should explain both the criminal and DMV tracks.

If you are serving, speak with your military defense counsel (military attorney / defense services) about your rights in any NJP or court-martial proceeding, and with us about defending the state DUI. A coordinated approach is often the best way to protect both your freedom and your future in uniform.

Call for a free consultation so we can assist you.