Diversion Program

California criminal justice system has evolved in providing first-time offenders, especially those who are charged with minor cases or misdemeanors, with alternatives to a criminal sentence through the diversion program. Your criminal defense attorney should guide you through the available options and your eligibility for these programs. LA Criminal Defense Attorney has a dedicated team of experts who will explore the options with you and negotiate for your enlisting in the diversion program in Los Angeles, CA.

What Is A Diversion Program?

A diversion program is a form of a sentence that requires the defendant to fulfill some conditions for the dismissal of their criminal case. Diversion programs are part of the criminal justice system and they intend to give the defendant a chance to lead a normal and responsible life without the burden of a criminal record. Such programs employ strategies such as rehabilitation or community service and serve as alternatives to criminal prosecution and incarceration.

Diversion can be informal or formal. Informal diversion happens when a police officer decides at his/her discretion not to cite or arrest an offender. Instead, they release him with the requirement to meet such conditions like attending anger management classes. Informal diversion is normally for minor cases such as first-time traffic violations. In some cases, the behavior and willingness of the offender to cooperate with law enforcement officers could play a role in earning them a diversion program.

Formal diversion programs occur after admission into the criminal justice system, and in some cases, after conviction. Regardless of the timing, diversion programs provide hope for clearance of a charge or conviction.

Diversion programs are based on the belief that the behavior of the offender can be remedied and corrected through less harsh means instead of incarceration. The programs give the offender a chance to correct the behavior that led to criminal activity such as drug abuse. In addition, the defendant remains within the community and can get employment.

Diversion programs meant to rehabilitate and treat offenders often deal with the root cause of the problem instead of punishing the outcome. For instance, understanding that a mental health disorder or a drug and substance use triggered the crime would make the dealing with the actual disorder or problem eliminate the possibility of a future occurrence.

Diversion programs may receive criticisms as inadequate or too lenient corrective measures. However, with the right treatment and motivation from the offender, diversion programs are very beneficial.

Types of Diversion Programs

There are varieties of diversion programs under California law. The most common ones are designed with the target population in mind. They include:

Mental Health Diversion Programs

Sometimes you can commit a crime due to a mental health problem. California Law under PC 1001.36 allows people with mental health issues to receive treatment upon facing criminal charges. If you committed a crime because of a mental health disorder, your lawyer can at any time before a sentencing, request for a mental health diversion program.

Mental health diversion program is a form of pre-trial diversion that postpones further action on your case as you undergo treatment. Once you successfully complete the treatment, the court dismisses any charges against you and seals the record of your arrest.

Mental health diversion programs are available to defendants of both misdemeanors and felonies. The law sets certain criteria for eligibility for the program. Before enrolment, the court will examine whether:

• You are suffering from a mental health disorder. Antisocial personality disorder, borderline personality disorder, and pedophilia are not considered during the determination of your eligibility. Most mental disorders including schizophrenia, bipolar disorder, schizoaffective disorder, and posttraumatic stress disorder qualify one for the program. To prove you have the disorder, you can bring along your medical reports, copies of the arrest reports or undergo an examination;

• The mental disorder that you have played a significant role in the commission of the offense for which you are charged. The court determines the role of the mental disorder in the crime by examining statements from your mental health provider, witnesses, medical records, reports by qualified mental health experts, police reports and preliminary hearing transcripts;

• You can respond to mental health treatment. To determine this, the court will call upon the examination of a qualified mental health expert;

• The defendant accepts the diversion program. This means you will be waiving your right to a speedy trial. The waiver does not apply to a defendant who cannot give an intelligent waiver because of his mental state;

• The defendant accepts to comply with mental health treatment as a condition of the diversion;

• The defendant does not pose an unreasonable risk to public safety. The court determines the risk you pose to public safety through your criminal history, history of violence, the severity of the charged offense and opinions of your lawyer, a qualified mental health expert, and the district attorney.

Normally, this form of diversion lasts for a maximum of two years during which you can receive both inpatient and outpatient treatment. The court will constantly measure your progress through reports from your mental health provider.

A hearing may be called in case you are charged with a misdemeanor or a new felony that indicates a tendency for violence, you engage in criminal behavior that disqualifies you from a diversion, or you do not respond to treatment.

During the hearing, the court determines:

• Whether to modify the treatment program

• Whether to reinstate the criminal proceedings

• Whether to refer you to a county investigator for conservatorship proceedings

You will have successfully completed the diversion program when:

• You have complied with the requirements of the diversion program

• You have significantly avoided new violations unrelated to your medical condition

• You have a plan in place for future mental healthcare

Drug Diversion Programs (Formerly Known as Deferred Entry of Judgment)

A drug diversion program is a form of pretrial diversion program for persons charged for simple possession of drugs. The program is provided for under PC 1000, which allows non-violent drug offenders to receive treatment or education instead of incarceration. The diversion program lasts between 12 and 18 months.

Unlike in the Deferred Entry of Judgment, you do not have to plead guilty to the charges. This means that you will not be guilty of the charges should you fail to complete the program, instead, you will be entitled to a California Bench Trial.

However, by enrolling into the program, you waive your rights for a speedy preliminary hearing and a trial by a jury. After the successful completion of the program, the charges against you are dismissed and your record sealed.

To qualify for the drug diversion program, you must meet the following conditions:

• You must not have been convicted of offenses that are not eligible for PC 1000 pretrial diversion within the last five years

• The offense must not have involved or threatened violence

• There must be no evidence of more serious drug crimes such as possession for sale or selling drugs

• The defendant must have no felony conviction within the past five years

• There should be no evidence of simultaneous violations of narcotics or dangerous drugs

In addition, the court must first determine whether the drugs were for personal use and whether you can benefit from the drug rehabilitation or treatment.

Eligible offenses under PC 1000 are mainly violations of the health and safety code. They include:

• Possession of controlled substances

• Unlawful possession of cannabis

• Possession of drug paraphernalia

• Aiding the use of an unlawfully controlled substance

• Unlawful possession of some prescription sedatives

• Possession of methamphetamines for personal use

• Being under the influence of a controlled substance

• Possessing an open container of cannabis in a vehicle

• Unlawful cultivation of cannabis for personal use

• Possessing prescription drugs for personal use, obtained by forging a prescription

• Possession of toxic substances for huffing

• Lewd conduct from being under the influence of a controlled substance

The program covers possession of drugs such as cocaine, ecstasy, GBH, heroin, ketamine, peyote, methamphetamines, marijuana, some hallucinogens, and prescription opioids. In most cases, the prosecuting attorney analyzes your case to determine your suitability for the drug diversion program and advise your attorney in writing. The notice sent contains the procedures for the program, roles and responsibilities of various parties involved, the conditions the defendant has to adhere to and the rights he or she will give up. In addition, the notice indicates the rights and responsibilities of the defendant and explains circumstances that may lead to the termination of the program.

In the process of determining your eligibility for the program, the court may hold a hearing using information gathered by the probation department. The probation officer examines the age of the defendant, family status, employment status and record, history of controlled substance use, family ties, any treatment history and motivation, and any mitigating factors. The information is used in determining whether the defendant will benefit from a treatment, suitable diversion elements such as education, treatment or rehabilitation, and programs that would accept the defendant.

Where the defendant is eligible for a drug diversion program, they still have the right to choose whether to participate or not.

The criminal case proceedings progress in the usual manner, where the defendant declines participation in the program. No rights are lost in this case. When the defendant accepts to participate in the program, the defendant will plead not guilty to the charges and sign a Tahl waiver. The waiver indicates that the defendant will lose the rights to a speedy trial and preliminary hearing as well as trial by jury.

The defendant then commences the treatment program, which lasts between 12 and 18 months, which may be extended when the defendant presents a good cause to the court. The defendant will be required to pay a diversion restitution fee of between $100 and $1000 before the program starts. The court determines the amount payable at its own discretion but may take into account the defendant’s ability to pay, the seriousness of the offense and the extent of loss to the victim. As treatment progresses, the defendant may receive certain narcotic medication under the guidance of a licensed health care practitioner.

During the treatment period, the probation department will send regular progress reports to the probation department to determine continued eligibility of the defendant.

The prosecuting attorney, probation department or the judge can initiate a motion to terminate the diversion program before its completion when the defendant:

• Does not comply with the conditions of the diversion program, for example, by failing to obtain treatment

• Is convicted of any felony

• Is convicted of an offense that indicates his or her predisposition to violence

The original case proceeds upon the termination of the program. Upon the successful completion of the program, the arrest records will be sealed. This means they can only be used where the defendant is looking for employment as a law enforcement officer.

There are several alternatives to pretrial diversion (PC 1000) which may be used as drug diversion programs including:

• Proposition 36,

• California drug court (such as the Los Angeles County drug court program),

• Military diversion,

• Mental health diversion, and

• Local drug courts and rehabilitative justice programs.

Military Diversion Programs

Military diversion program is a pretrial diversion program designed for active members of the US army and veterans suffering from post-traumatic stress disorder, sexual trauma, traumatic brain injury, substance abuse, or mental health problems.

For a defendant to be eligible for the military diversion program, he or she must have or is currently serving in the US military and has suffered the aforementioned conditions because of military service in addition to being a first time offender.

The military diversion program is available to eligible members who are facing misdemeanor charges. As in all forms of diversion, the proceedings are postponed until the defendant has completed the treatment or education program.

Eligible veterans or active members are eligible for the diversion program if they commit misdemeanors such as:

• A California DUI

• Possession of narcotics

• Assault and battery

Your criminal defense lawyer should request a military diversion for you. The court may or may not accept the request, or may require conducting an assessment to determine your suitability. Upon acceptance of the request, the defendant will begin a treatment period for a maximum of two years.

During this period, the defendant will be required to meet additional conditions such as:

• Attendance of treatment sessions

• Counseling

• Random alcohol and drug testing

• Progress report from the agency providing treatment or rehabilitation

From the reports filed from the agency providing treatment, the judge or prosecutor may initiate hearings to terminate the treatment if the defendant is not benefiting from the program or is performing unsatisfactorily.

The program in which the defendant is enrolled depends on past success in persons with similar challenges. The charges are dismissed and the records sealed upon the successful completion of the program.

In some cases, the military officer may still be convicted of a crime. Military diversion programs also allow for post-conviction diversion, which keeps the defendant from prison or jail but still convicts him or her for the crime. The treatment allows veterans or active military of the US army to receive treatment for the eligible disorders if the offense they committed resulted from the disorder. Post-conviction military diversion programs last for a period not exceeding that which the defendant would have spent in custody.

Juvenile Diversion Program

A minor may commit an offense, which may lead to their arrest. Generally, juvenile courts rehabilitate minors with the intention of correcting their behavior and encouraging them to develop into responsible adults.

Juvenile diversion programs are designed to reform the juvenile justice system into one that rehabilitates instead of punishing juvenile offenders. It is best to question your attorney to learn whether your child is eligible for a diversion program. The education, treatment, and rehabilitation offered to the juveniles through such programs, gives them an opportunity to deal with the behaviors causing criminal activity. Diversion programs for juveniles also reduce the chances of the offender committing future crimes as an adult.

Juvenile diversion programs aim to give a minor a second chance at living a responsible life, without the record of their offense affecting them.

A juvenile can be enrolled through a deferred entry of judgment, which requires the minor to plead guilty for the allegations. Once the minor successfully completes the program, the charges are dismissed. The program lasts between one and three years.

Welfare and Institutions Code (WIC) 654 provides provision for juvenile diversion. Some of the eligible offenses covered include:

• Minor vandalism

• Possession of less than an ounce of marijuana

• Minor shoplifting

• Trespassing

The minor can be placed on informal probation on the condition that they meet conditions such as:

• Obeying all the laws and orders of the probation officer

• Obeying instructions and orders of the juveniles parents and school officials

• Maintaining a 5 p.m. and 7 a.m. curfew

• Maintain satisfactory academic grades

• Attend a counseling program

• Avoid associating with certain persons as advised by the probation officer and parents

• Adhere to random drug testing by medical staff

• Adhere to random room searches by the probation officer or parents

If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.