Active military personnel or veterans face unique experiences, both physically and psychologically, in line of duty. Those experiences become a challenge for them, and they may suffer from mental health challenges or trauma. Those that suffer from these conditions when faced with misdemeanors may qualify for military diversion instead of a jail sentence. Military diversion, as found under PEN 1001.80, is a type of pretrial diversion where the judge can postpone misdemeanor proceedings to allow the defendant to get treatment.
It is essential to understand that not every veteran will qualify for military diversion. If you are facing criminal charges as an active military officer or a veteran, you need a criminal lawyer with an understanding of military diversion to fight for you. The LA Criminal Defense Law Firm has defended many active military personnel and veterans, ensuring favorable outcomes.
Understanding Military Diversion According to PEN 1001.80
PEN 1001.80 is a unique kind of a pretrial diversion. It is only available to veterans or those still active in the military as a substitute to jail sentence when faced with misdemeanor charges in California. The defendants are not required to take a plea for them to get a diversion, according to PEN 1001.80. Instead, the judge postpones the trial proceedings to allow the defendant to get treatment. The defendant can also be ordered to enroll in an education program while the trial is postponed.
When the defendant completes the ordered program successfully, the allegations against them can be dropped. In case the defendant fails to complete the particular program, the court proceedings for the crime against them will resume.
Conditions that Would Qualify one to Get Military Diversion
When you are a current military officer or are a veteran, you are eligible for military diversion if in your line of duty you have suffered or diagnosed with:
- Post-traumatic stress disorder (PTSD)
- A Traumatic Brain Injury (TBI)
- Military Sexual Trauma
- Mental Health Challenges
- Substance Abuse
These problems, however, must be the result of your military service. It is also important to note that military diversion only applies when you are a first-time offender. If you have a previous conviction on the offense, a subsequent offense gets you tried at the Veteran’s Court.
Understanding Post-Traumatic Stress Disorder (PTSD)
Some individuals that have faced traumatic experiences have PTSD. Some of these experiences may include sexual assault or the experiences on the battlefield for military personnel. However, it is not automatic that a person that goes through a traumatizing experience will have PTSD. Some individuals can overcome their unfortunate experiences faster than others.
Others may suffer these lasting symptoms for weeks, and they overcome them. These are known as acute stress disorder (ASD).
If the symptoms of the traumatic experience last longer, the individual may have PTSD. This must be taken into consideration if:
- The symptoms last over a month
- The ability of the person to function is adversely affected.
- The symptoms are not as a result of an illness or abuse of substances. Or any other issue aside from the trauma.
Symptoms that a Person is Suffering from PTSD
In most people, symptoms begin to manifest in three months from the traumatic experience, but for others, they can start manifesting after years. For an adult to have PTSD, they must have the following symptoms for a month or more:
- One or more re-experiencing signs – These include flashbacks, nightmares, or scary thoughts.
- One or more avoidance symptoms – These include avoiding certain places, events, or things that remind them of the experience. The person may also avoid feelings or thoughts that relate to the traumatizing event.
- Two or more arousal and reactivity symptoms – These include individuals who are easily startled, being on edge or experiencing tension, having angry outbursts, or difficulties sleeping.
- Two or more mood and cognition symptoms – These will include challenges in remembering significant elements of the traumatizing experience, thinking of themselves negatively. Others may experience distorted feelings where they blame themselves or feel guilty and lose interest in any fun activities.
The Risks of PTSD
When a person has gone through a traumatic experience, it is expected for them to have some level of anxiety and fear. Most of the people that go through these traumatic episodes do not always develop PTSD. However, some individuals are at a higher risk of developing PTSD after the devastating experience. These are:
- Individuals that have experienced a traumatizing event in their childhood
- Individuals that lack or have minimal social support
- Individuals that have a past of substance abuse or mental illness
- Individuals that have had a recent stressful experience like losing their job, a loved one, or their home
Military Sexual Trauma
Military sexual trauma is the psychological trauma that results from sexual assault or battery in a sexual manner or sexual harassment while a person was in active duty as a military officer. An officer can also be the recipient of unsolicited physical or verbal contact that is sexual and threatening. A person that suffers from military sexual trauma may have undergone some of the following:
- Rape while in service.
- May have gotten forced to oral copulation.
- May have experienced penetration using an object.
- May have been sexually battered.
- May have experienced groping.
- May have gotten coerced into sex.
- May have received threats or offensive remarks over their sexual activities or body.
- May have gotten sexually threatened or experienced unwanted sexual advances.
Where the sexual harassment or assault occurred usually does not matter as long as the person was still in active service with the military.
Traumatic Brain Injury (TBI)
Traumatic Brain Injury (TBI) is a kind of cognitive impairment that results from a jolt or blow to the body or head. It is as a result of a falling object or when a bullet penetrates the brain. Most military personnel that suffer from TBI are victims of explosive blasts. According to researchers, the pressure waves that pass through the brain disrupt the function of the brain significantly. A person suffering from brain trauma will exhibit various symptoms.
The signs of TBI are many with the physical ones, including headaches, lost coordination, dizziness, experiencing emotional and cognitive difficulties. The person suffering from TBI may start displaying symptoms following the traumatic episode or several days or weeks after.
When a person is experiencing emotional and cognitive challenges, it is often frustrating for them and a reason for conflict with their friends and family. As a result, the person may suffer depression, start abusing substances as a way to deal with their symptoms.
TBI can also result in the person suffering prolonged issues such as memory loss, difficulties learning, judgment, learning, focusing, planning, deciding, solving problems, organizing, insomnia, anger, and anxiety, among others.
Mental Health Challenges and Substance Abuse
Aside from those suffering from sexual trauma, TBI, or PTSD, military diversion also applies to individuals battling substance abuse and mental issues such as extensive depression. The primary elements the courts need to establish is whether the situation is as a result of their military duty and if the treatment will be beneficial.
Offenses that Qualify to Get Military Diversion
As earlier stated, military diversion only applies to active military members or veterans charged with misdemeanors. Some of the misdemeanor offenses that qualify for military diversion are:
- DUI offenses in California
- Having narcotic or possessing them
- Misdemeanor charges for assault and battery
Getting Military Diversion
When you are charged with any of the above or other misdemeanors, you need to get a lawyer to defend you against the allegations. If you are currently in active military service or are a veteran, you must make it known to your lawyer. If you have any of the conditions mentioned above, it is also essential to let your lawyer know.
Your lawyer, with this knowledge, will request the court for diversion. The court will decide to grant the request or order for an evaluation to determine if the accused qualifies for diversion. If the court finds you are eligible and you consent, you will be put in a diversion program before trial. The criminal proceedings against you will be postponed, but not for over two years as you receive treatment.
Treatment Programs Available to the Defendant
After the court’s assessment, it will decide whether you should be enrolled in a community-based or federal treatment program. The court in determining the program will look at those with a successful treatment past. There are many programs, with some of them being those run by the United States Department of Veterans Affairs or the United States Department of Defense.
The assigned program, together with the court, will cooperate with the above departments to ensure the defendant gets maximum benefits from the program. In case the defendant is ordered to undergo treatment for mental health, the defendant may be ordered to seek treatment at the mental authority of the county. This is as long as the agency is in agreement to cater for:
- Defendant’s treatment
- Coordinating and referring the defendant to a veterans service officer and
- Filing reports in court
Other Court Conditions for Participating in the Treatment Programs
When the court orders the defendant to the diversion treatment programs, it imposes conditions that the accused must adhere to. These conditions include but not limited to:
- The defendant must attend all treatment sessions.
- The defendant must get counseling for substance abuse or domestic violence as appropriate.
- The defendant must submit to random testing for drugs and alcohol.
- The agency providing the program must produce a satisfactory progress report for the defendant.
The defendant’s progress report is usually given to the prosecutor and the court every 6 months by the agencies that are running the treatment programs.
The Length of a Military Diversion Treatment Program
As earlier stated, the court trial against the accused gets diverted for a maximum of two years. This allows the defendant to undergo treatment and counseling to correct the conditions they are suffering from.
For this reason, the diversion programs last between twelve and twenty-four months. After the two years, the court would revisit the case and decide to dismiss the charges or proceed with the trial.
Termination of Military Diversion Treatment Programs
Sometimes the treatment program can be terminated before the court completes it. The agencies responsible for the treatment are expected to file reports showing your progress every 6 months to the court. The court can call for a hearing if the report shows:
- Your performance in the program is unsatisfactory or
- You seem not to be getting helped by the program and the treatment services provided
When the court can establish the treatment program is not helping you, it may decide to terminate it and go back and proceed with the criminal case against you.
Your Record after Completion of your Military Diversion Program
After you complete the treatment program, the court will dismiss the charges against you. Your arrest record or that of the diversion will not be used without your consent to deny you any benefits, employment, certificate, or a license. This means you can truthfully state that you have never been arrested or convicted of a crime when asked about your criminal background.
However, there is an exception to this when applying for the position of a peace officer. When you want to serve as a peace or police officer, you must disclose your record if asked about it directly or when filling out a form. The department of justice can also disclose your history when requested. But only due to your application to work as a peace officer.
What Happens to your Driver’s License if You Were Arrested on a DUI Offense
Typically, when a driver is arrested on suspicion of intoxicated driving, the driver’s license is taken by the arresting officer to report the offense to the DMV. If the results of your chemical test show you were intoxicated beyond the legal limit, your driver’s license will be automatically suspended.
A DUI misdemeanor charge qualifies as one of the offenses you can receive a military diversion for committing. The question one may have is if their suspended or revoked driver’s license will be returned to them upon the successful completion of the diversion program.
The answer to the question is no. The satisfactory completion of the treatment program does not interfere with the DMV operations. The DMV, as an independent body, may decide to retain the suspension until the suspension period is over. You can, however, apply to get a restricted license provided you fulfill the set conditions for it.
Using PTSD as a Defense
PTSD has been used as a defense in many criminal cases that are found within the insanity defense of California. It may also be brought up as mitigating evidence, but not as a total defense. Mitigation helps the defendant receive lenient sentencing, especially when convicted of a felony.
During a trial, a defendant, when taking a plea, can state they are not guilty due to insanity. This is when they believe they committed the offense when they were legally insane. An individual is said to be insane legally if when committing the crime they:
- Had no understanding of their act and its nature
- Were unable to differentiate between what is right or wrong
However, the accused must prove by showing evidence that they were likely to have been insane when they committed the offense. When this happens, the defendant, instead of a prison sentence, will be placed in a mental health facility.
Using PTSD as Mitigating Evidence
Sometimes, PTSD may not be used as a solid defense concerning insanity. However, it can be used well as mitigating evidence. The accused, through their lawyer, must show that as a result of their emotional trauma, they were unable to behave as they should under the circumstances. This may result in the judge sentencing the defendant to lesser penalties as they would have otherwise.
PEN 1170.9 – Post-Conviction Treatment as Opposed to Jail Time
PEN 1170.9 in California is like a military diversion. However, it applies to post the conviction of a defendant or after they take a guilty plea to an offense.
Just like in military diversion, a judge under PEN 1170.9 is allowed to order veterans to attend treatment programs as opposed to jail time. The crime they are accused of committing must have been as a result of sexual trauma, PTSD, TBI, mental health, or substance abuse due to their military service.
How PEN 1170.9 Works
When a defendant claims to fall under this statute, the court will have a hearing to establish if they are eligible. If from the trial, it is determined that a defendant qualifies for the alternative outcome or sentencing, the former military officer can be sentenced to a treatment program as opposed to imprisonment.
Length of a PEN 1170.9 Treatment
A treatment program under PEN 1170.9 does not last longer than the period the accused would have been jailed for. A defendant with a probation sentence, according to this statute, earns credits to their sentence. This is typically for the time served at the residential treatment.
Who Qualifies for Treatment According to PEN 1170.9
For a defendant to qualify for treatment under PEN 1170.9, he or she must be qualified for probation under ordinary court. Due to this unique requirement, PEN 1170.9 doesn’t apply in some cases. For instance, a person that is charged with a violent felony would not qualify for probation in a California court.
Additionally, some crimes that involve the use of a firearm or when a person inflicts significant injuries on another, it is assumed that they do not qualify for probation. If the veteran is accused of a similar offense, he/she is likely not going to get PEN 1170.9 treatment.
Through a technicality, however, a defendant may be qualified for PEN 1170.9. However, unless the court grants them probation, they will not get alternative sentencing.
For instance, PEN 1170.9 sentencing can be rejected when a veteran is involved in a DUI accident that leads to a fatality. The veteran gets charged with a Watson Murder and VEH 23153 a DUI resulting in injuries. The court may deny the defendant probation because there is no sufficient evidence that the offense was due to PTSD from their time in service. When the lawyer requests for PEN 1170.9, the request will get denied because the veteran did not qualify for probation.
The court system in California instituted special courts known as Veteran Courts. The courts are made similarly to homeless courts or drug courts. These courts work to resolve other problems that may be the reason for a crime, such as substance abuse or mental health challenges.
Military diversion and veteran courts are alike, but the courts provide more structure and more excellent supervision. Typically, these courts deal with non-violent offenders only. However, there is only one court in California that would sometimes deal with violent offenders.
Upon a veteran getting accepted in a treatment program, they will have several participants that include a prosecutor, judge, a defense lawyer, and their appointed administration caseworker. These people will work together to design a comprehensive program for the veteran that helps in their treatment.
Once the veteran completes the program successfully, the charges will be dropped according to PEN 1170.9. It is also crucial for the veteran defendant to have a support system and coping mechanisms. These are essential to facilitate positive integration into society.
Facing criminal charges can be stressful for a civilian. The stress faced by a person that has served in the military is even more frustrating. Some will commit the offenses without knowing or due to conditions that they suffered while serving the country. Fortunately, the state values its military men and the veterans and values the service they offer to the country. The citizens also appreciate the service the brave men and women give to the country, and for that reason, they will always get treated with respect.
Find a Criminal Defense Lawyer Near Me
When a veteran or an active member of the military faces a criminal offense, it can be frustrating. Some of them do not commit these crimes knowingly. But out of various traumas that they have suffered in their line of service, they do. If you are a veteran or an active military officer accused of a crime, getting in touch with a criminal lawyer is essential for your defense. If your offense was a result of a traumatic experience, your lawyer could request a military diversion that will allow you to get the treatment you deserve. At The LA Criminal Defense Law Firm, we have a team of experienced lawyers that understand the pain of a veteran. Get in touch with us at 310-935-1675 and let us defend you against the allegations.