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MILITARY DIVERSION PROGRAM MAY BE AVAILABLE TO MILITARY PERSONNEL AFTER A DUI ARREST

If you are, or were, a member of the United States military and suffering from trauma related to your service, you may be eligible for a pre-trial diversion program if you get a DUI. Penal Code section 1001.80 allows a court to suspend prosecution on misdemeanor charges if the defendant may be suffering from PTSD, or other mental health problems related to the defendant’s military service. Specifically, the trauma as delineated in the statute includes:

Sexual trauma;

Traumatic brain injury;

Post-traumatic stress disorder;

Substance abuse; or

Mental health problems.

 

Known as the Military Diversion Program, a defendant who is identified as a candidate by the court is placed in the appropriate treatment program. While in the program, the criminal prosecution is put on hold. If the defendant successfully completes the treatment program and does not re-offend in the interim, the court will dismiss the charges.

Until August 2017, there was debate among the courts in different jurisdictions as to whether a DUI would qualify for this program. Some courts held that as a misdemeanor, a DUI was eligible; some courts found that it was not. The Legislature addressed this dispute by amending the statute to specifically include violations of Vehicle Code sections 23152 and 23153 (DUI violations).

Eligible defendants must file a Request for Military Diversion with the court. The defendant must be able to support the request with documentation of his or her service and an assessment of his or her mental condition by a mental health professional. The prosecution may object. A hearing is held where the court will find the defendant either eligible or ineligible for the program.  If found eligible, the defendant must successfully complete treatment within two years or the diversion will be cancelled and the defendant will be prosecuted on the charges. During the diversion period, the court will require periodic proof of enrollment in the program and compliance by the defendant. If successfully completed and the charges are dismissed, it will be as if the arrest never occurred.

But on a DUI arrest, there’s a catch. A DUI arrest also triggers a separate proceeding: the DMV Administrate Per Se suspensionof the arrestee’s driver’s license. The Military Diversion Program has no effect on this separate administrative proceeding. A successful candidate may still see his or her license suspended by the DMV and DMV points on his or her DMV record. How this will be treated in terms of subsequent DUIs has not been tested in the courts.

Still the military diversion program is a good alternative for eligible individuals who are arrested for driving under the influence. If you have been arrested for driving under the influence and think you might be eligible for this program, you should consult a DUI defense attorney who can help you navigate the law and get you accepted into a diversion program. Not only will successful completion in this program remove any record of the arrest but the treatment will hopefully address the trauma experienced by the individual.

Orange County DUI attorney, William Weinberg, is available for a complimentary consultation to discuss your options. You may reach him at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.

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