California has long recognized the unique challenges faced by military veterans, particularly those dealing with the psychological and emotional impacts of their service. Until recently, the state's military diversion program primarily focused on misdemeanor charges, offering an alternative pathway to justice for veterans accused of crimes.
However, with the passage of Senate Bill 1025 (SB 1025), which took effect on January 1, 2025, veterans now have the opportunity to apply for a military diversion program even if they face certain felony charges. In other words, California Senate Bill 1025 amended Penal Code section 1001.80 PC to make most felony cases eligible.
Existing law provides for the diversion of criminal offenders to alternative sentencing and treatment programs. It also provides for a pretrial diversion program for a defendant who was or is a member of the Armed Forces of the United States.
It's available for those who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the defendant's military service.
The law authorizes the court, with the defendant's consent and a waiver of the defendant's speedy trial right, to postpone prosecution, either temporarily or permanently, of a criminal offense and place the defendant in a pretrial diversion program.
SB 1025 adds felony offenses to the pretrial diversion program for defendants who were or are military members and when the defendant's condition was a significant factor in the commission of the charged offense.
The bill requires the court to find that the defendant's condition was a significant factor in the commission of the offense unless there is clear and convincing evidence otherwise.
It authorizes the court to consider any relevant and credible evidence in making this determination. This bill imposes a state-mandated local program by requiring counties to coordinate services for a new group of veterans.
Military Veterans Diversion Overview
A military veterans diversion program provides qualifying veterans an opportunity to receive treatment and rehabilitation in lieu of traditional prosecution. When a veteran is admitted into this program, the court postpones or "diverts" the criminal proceedings.
During this time, the individual must complete specific requirements, such as enrolling in mental health treatment, substance abuse programs, or therapy services tailored to address conditions stemming from their military service, such as PTSD, traumatic brain injury, or military sexual trauma.
Diversionary programs may last up to two years. If the participant completes all the requirements, the original criminal charges are dismissed.
Even more importantly, the veteran's arrest records are sealed, reducing the potential impact on their employment prospects, housing opportunities, and other areas of life that could be negatively affected by a criminal record.
Key Changes Under SB 1025
Prior to SB 1025, military diversion was limited to misdemeanor charges. SB 1025 expands eligibility to include many felony charges when the offense is linked to a mental health condition, substance abuse issue, or other challenges attributable to military service.
The law focuses instead on cases where the defendant's military-related mental health struggles played a significant role in their alleged criminal conduct.
Under SB 1025, the veteran's condition must have been a significant factor in the commission of the offense to qualify for felony diversion.
Courts are instructed to presume the condition contributed significantly unless proven otherwise by clear and convincing evidence. This shift introduces greater flexibility and emphasizes rehabilitation rather than punishment.
What are Eligibility Requirements?
To apply for military diversion, veterans must meet specific eligibility criteria. First, the applicant must have served as a member of the U.S. Armed Forces, including past or current service. Second, they must demonstrate that they are struggling with one or more of the following conditions as a result of their military duty:
- Post-traumatic stress disorder (PTSD),
- Traumatic brain injury (TBI),
- Military sexual trauma (MST),
- Substance abuse disorder,
- Other qualifying mental health conditions.
The court may review various forms of evidence to prove eligibility. These could include medical records, evaluations from mental health professionals, testimony from family or friends, or statements from treatment providers.
Police reports and service records may also provide insights into how the veteran's condition relates to the alleged crime. The court may also order its own assessment of the defendant using available resources. With this evidence, the court determines whether the veteran qualifies for diversion.
Simply put, a court may consider any relevant and credible evidence, including, but not limited to, a police report, preliminary hearing transcript, witness statement, statement by the defendant's mental health treatment provider, medical record, or record or report by a qualified medical expert, that the defendant displayed symptoms consistent with the condition at or near the time of the offense.
What are the Program Exceptions?
Despite the broadened scope of SB 1025, certain crimes remain ineligible for military diversion. These include severe offenses where public safety concerns take precedence. The following charges cannot qualify for diversion under the program:
- Murder,
- Rape,
- Voluntary manslaughter,
- Sexually violent offenses,
- Lewd or lascivious acts on a child,
- Continuous sexual abuse of a child,
- Assault with the intent to commit rape, sodomy, or oral copulation,
- Criminal offenses requiring sex offender registration (except certain violations of indecent exposure laws).
- Certain DUI offenses are not specifically covered under the program.
These exclusions ensure that the military diversion program prioritizes rehabilitation for eligible veterans while maintaining protections for victims and community safety.
How to Apply for Diversion
We have been using military veterans' diversion to get treatment rather than criminal punishment for people who have served our country. We have had success in military misdemeanor DUI cases.
This law applies to current active-duty military members and veterans. Our firm has used this law to dismiss numerous misdemeanor criminal cases. Now, we can also apply for diversion in felony cases.
The process of applying for military diversion, in particular for felony charges, can be complex and challenging. Judges, prosecutors, and courts often approach these cases with varying levels of emphasis on diversion as an option.
It is critical to work with an experienced California criminal defense attorney to give yourself the best chance of acceptance into the program. Attorneys skilled in military diversion cases bring many advantages.
First, they can help you gather the necessary evidence to demonstrate that your condition directly relates to your alleged offense. They can also effectively advocate on your behalf in court, ensuring that the court understands how your military service has affected your behavior.
Most importantly, they can guide you through the entire process and handle any challenges that may arise. If you believe that you meet the requirements, there is a process to ask the judge to grant diversion in your case. First, you'll need to make sure your case qualifies.
You also need to get an evaluation from a qualified evaluator. You can use the VA or a private mental health professional for this.
Treatment Plan
After the diagnosis, we need a treatment plan. A treatment plan guides the court in ordering appropriate terms to treat the diagnosed condition. Once we have an expert's report with a diagnosis and treatment plan, we file a motion with the court for military veterans' diversion.
Next, we appear at the hearing and argue the motion. At oral argument, we discuss the client's history and diagnosis, along with an appropriate treatment plan.
Notably, this is a pre-plea diversion, so there is no conviction, guilty plea, or finding of guilt. The case remains open while the defendant completes the terms. If the defendant fails in diversion, the case will be put on trial. For more information, contact our criminal defense law firm, Eisner Gorin LLP, based in Los Angeles.
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