California Military Diversion and Veterans Sentencing

Penal Code section 1001.80 lets a court divert a defendant who "was, or currently is, a member of the United States military" before trial. For a misdemeanour, including a misdemeanour DUI, the defendant need only be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse or a mental health problem as a result of service. For a felony the condition must also have been a significant factor in the offense, and the court must find that it was unless there is clear and convincing evidence otherwise. Murder, voluntary manslaughter and most offenses requiring sex offender registration are excluded. Diversion lasts up to two years with reports every six months; on success the charges are dismissed and the arrest is deemed never to have occurred, except that it must still be disclosed on a peace officer application. After a conviction, Penal Code section 1170.9 requires the court, before sentencing, to decide whether a defendant who says the offense came from one of those conditions is or was a service member, and to treat it as a factor in favor of probation. The court may order treatment for up to the jail or prison term the defendant would have served, with sentence credit for residential treatment. On a finding of substantial compliance and successful treatment after a public hearing, the court may end probation early and waive fines and fees other than restitution, reduce an eligible felony to a misdemeanor, and dismiss the conviction with broader effect than an ordinary expungement. Neither section asks about the discharge, so a veteran with a bad-paper discharge qualifies. Treatment by VA or DoD programmes is preferred, and a county mental health referral must include a referral to the county veterans service officer. Many counties run a dedicated veterans treatment court for these cases; see the county pages.