Are Veterans Eligible for Diversion?


In 1972, the California Legislature enacted diversion for people accused of low level drug offenses.  This law could be used by anyone who met the criteria for diversion.  See Blog Post: Am I Eligible for Criminal Diversion?

In 2014, California passed a new law regarding the diversion of military veterans who meet specific criteria.  (Penal Code section 1001.80.)  Under this law, any person who was or is currently a member of the United State military may be eligible for criminal diversion under the following circumstances:

  1. The person is charged with a misdemeanor offense;
  1. The person is suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service

If the person successfully completes the diversion program, the “arrest upon which the diversion was based shall be deemed to have never occurred.”  (Penal Code section 1001.80(i).)  However, just like in civilian diversion, the arrest must be disclosed when applying for any peace officer position.  (Penal Code section 1001.80(j).)

The big difference between civilian diversion and military diversion is that military diversion is available for any misdemeanor offense; civilian diversion is only available for low level drug offenses.

Prosecutors disagree with the language of the statute, and argue that because civilian diversion specifically excludes DUI offenses from diversion, that military diversion should also exclude DUI offenses even if they are misdemeanors.

The California Courts of Appeal have attempted to give legal direction on this issue, but have disagreed with each other on this specific issue.

In the Second District Court of Appeal (Los Angeles), the court ruled that military diversion IS available for misdemeanor DUI offenses.  (See Hopkins v. Superior Court (2016) ___ Cal.App.5th ___.)

In the Fourth District Court of Appeal (San Diego), the court ruled that military diversion is NOT available for misdemeanor DUI offenses.  (See People v. VanVleck (2016) 2 Cal.App.5th 355.)

The Third District Court of Appeal (Sacramento), which covers Northern California counties, has not yet ruled on this issue.  And, because there is a split of authority between two different Courts of Appeal, the California Supreme Court is likely to step in and make a ruling that will be binding on all California trial courts.  Once either of these two events occurs, I will update this blog post.

Until then, attorneys in Northern California will be attempting to obtain military diversion for clients who meet the statutory criteria set out in Penal Code section 1001.80.

If you are looking for an experienced, reliable criminal defense attorney who understands all aspects of resolving a criminal case and will work to keep your criminal history clear, schedule an appointment on this web site or call to set up a time to meet and discuss your case.