Military veterans arrested on a first-time DUI may be eligible for what is billed as a “therapeutic and support” alternative to the criminal proceedings that usually accompany a charge of driving under the influence (or alcohol or drugs). This alternative is codified into California law under Penal Code section 1001.80 and known as the “Military Diversion Program.” The Military Diversion Program is available to all current or former military veterans who meet certain criteria. It is available not only to first time DUI offenders but to all qualified veterans charged with many, but not all, first-time misdemeanors.

To qualify, the veteran (or currently enlisted) defendant must establish to the satisfaction of the court that he or she is suffering from trauma, substance abuse, or mental health issues as a result of military service. The trauma may be post-traumatic stress disorder PTSD, sexual trauma, or traumatic brain injury (TBI).   (As an aside, although only first-time offenders are eligible for this diversion, veterans who have been convicted previously may be eligible for Veteran’s Court. Veteran’s Court is not a diversion program but is an intra-agency collaborative effort between the court and the Veterans Administration to provide mental health treatment to the offender.)

The Orange County Military Diversion Program diverts eligible DUI offenders to mental health and abuse treatment programs, which upon successful completion the DUI charge is dismissed, and the DUI arrest is deemed to have never occurred. (There is one exception to this and that is if the former offender applies for a peace officer job, in which case, the arrest must be disclosed. However, this does not necessarily disqualify the applicant for the job.)

When an eligible veteran or currently enlisted individual desires to apply for the benefits of military diversion, his or her DUI defense attorney will make a motion (formal request) to the court for diversion. The motion must document as thoroughly as possible that the defendant is eligible. If the court is satisfied that the defendant is eligible, the motion will be granted. In some cases, the court may order a psychological assessment in order to assist the court in its decision.

The diversion program is regimented by the court. The court will order the defendant to participate in either a federal or community-based treatment program. Programs with a demonstrated history of success treating these military service-induced mental health issues are given preference. The offender will be ordered to attend the program for 12-24 months and the period of diversion can last no longer than two years. The court will require progress updates from the treatment program and if the offender is not satisfactorily attending or participating, the court may terminate the diversion and resume DUI court proceedings.

It is important to understand that a DUI is not only a criminal matter, but also an administrative matter under the authority of the DMV. The criminal and DMV proceedings are separate. While the diversion program will give the offender the opportunity to erase the criminal record, the DMV is not subject to Penal Code section 1001.80. Therefore, the offender may still be subject to a driver’s license suspension or, in lieu of that, the requirement for an ignition interlock device installation and the DUI may appear on the offender’s DMV record. While this somewhat negates the benefit of the diversion program, the fact that the offender will not have a criminal conviction on his or her record is quite beneficial. Furthermore, even without the diversion program, the offender would be required to participate in a treatment program of some kind. For the military veteran who is suffering from trauma or some other military service induced mental health issue, the targeted treatment stands to be a much better option than the standard, one-size-fits-all treatment often ordered by the courts in the usual DUI sentence.

If you are currently serving in the military or you are a veteran and you have been arrested for driving under the influence, you may be eligible for the Military Diversion Program. Orange County DUI defense attorney William Weinberg is available for a free consultation regarding the specifics of your case. He will carefully consider your options and advise you of your potential eligibility for this program. You may contact him by calling his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.

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