Diversion in Criminal Cases…
February 1, 2025 at Chico, CA
Some crimes in California are eligible for pre-plea diversion, which means that the case is ultimately dismissed without a person having to admit guilt or the case going to trial. The benefit to this route is that you will never have a conviction on your record. You typically have to take an educational class, do some community service, and obey all laws during the diversion period.
If you fail to fulfill your end of the diversion agreement, you can still litigate the truth of the charges by going to trial or negotiating a deal with the DA.
One potential downside is that the court typically wants to see a year or more pass before they are willing to entertain a motion to dismiss the case. You may need to come back to court several times for reviews during the diversion period for the court to make sure you are on track.
What kinds of cases are eligible for diversion?
Under PC § 1001.95, misdemeanor offenses are eligible for diversion except: offenses requiring registration as a sex offender, stalking and some domestic violence crimes. Cases involving allegations of driving under the influence, in violation of Vehicle Code sections 23152 and 23153 are also typically excluded from diversion, although some jurisdictions allow for diversion on first time DUI offenses. In addition to PC § 1001.95, district attorney offices may also have their own form of informal pre-trial diversion.
Another form of diversion is available based on mental health, if there is a nexus between the offense and a treatable mental health condition. Driving under the influence cases are also usually typically excluded from this form of diversion. It is beneficial to have a doctor who is familiar with your mental health condition and and who is willing to craft a treatment regime and provide updates to the court. In the absence of your own treatment plan, some counties have resources to provide treatment services and update your progress to the court.
Military diversion is available for veterans and active military. In order to qualify you typically must be receiving services through the Veteran’s Administration and have a health condition linked to military service which contributed to the offense, such as PTSD or substance abuse. Treatment during the diversion period typically involves the VA and meets in a specialty court staffed by veterans.
NEW LAW UPDATE: As of January 1, 2025, the judge is allowed to grant diversion under PC § 1001.95 over the objection of the District Attorney. Priorly, defendants were not eligible for diversion unless it was specifically extended by the District Attorney. Now your attorney can make an application for PC § 1001.95 directly to the judge.
I’ve had several client successfully petition the courts for diversion - even in high profile cases involving serious felony allegations. Diversion is a good thing. Our system of justice is not best served by taking a one size fits all approach to criminal offenders. We can ensure public safety and at the same time devote ourselves to rehabilitating offenders and breaking the cycle of behavior that led them to face criminal accusations in the first place. Expanding opportunities for diversion and redirecting low risk individuals away from the criminal justice system and into therapeutic programs is the right thing to do and it reflects the maturity of our justice system.
