I was reading the news the other day when I got a little ticked by the title of the article I was reading. The title said, “Bill would allow troops and vets to avoid convictions on DUI offenses”. Did they want to piss off people with that title? How about “bill would allow treatment instead of conviction on DUI cases”?
If the bill passes, that is what is would do. It is overdue, and there is definitely a need here in San Diego for military diversion. If you want to get the ball rolling contact the Law Offices of Mark Deniz APLC at (858) 751-4384.
I worked almost 10 years as a prosecutor. Three years ago I opened my own practice I felt the desire to help people and a change in my life.
My last five years as a prosecutor my primary focus was DUI defense. As a prosecutor in a jurisdiction with a large military population, it was obvious to see that some cases were due to PTSD issues. At the time we would take that as a mitigating factor.
When I have opened my own office I have time to sit and talk to these guys. They are good people who have an undying love for the country. Most of my DUI clients are good people too. What separates the clients who have PTSD is that this was not a “bad choice” to drink. It was an escape from a terrible latent condition they have. Alcohol is the best way to hide getting away from PTSD symptoms. It is socially acceptable and easy to obtain. There is not a stigma when used. Neil Diamond summed it up perfectly in his verse, “Red Red Wine, go to my head, make me forget that I still need a soul”.
The court, in collaboration with the Offices of the District Attorney, City Attorney, and Public Defender, has compiled the following information regarding Military Diversion pursuant to Pen. Code § 1001.80 (hereafter Military Diversion). This information is for guidance as to best practices only and does not represent strict rules or guidelines.
I am anxious to see what happens to the bill. In the meantime, our firm will continue to craft our approach to get vets the best resolution in their case. Contact the Law Offices of Mark Deniz, APLC to get the ball rolling.
Below is more information on Military Diversion.
A. ELIGIBILITY CRITERIA
1. Defendant is charged with a misdemeanor or misdemeanors only.
2. Defendant is a current or former member of the United States military.
3. Defendant may be 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.
4. Defendant consents to being placed on Military Diversion and waives his or her rights to a speedy trial.
5. Defendant has not been granted Military Diversion for any other case.
B. EXCLUSIONARY CONSIDERATIONS
1. Defendants with a prior conviction for the same or similar offense are better served by a post-conviction referral to Veteran’s Treatment Court (Department 16, Central Division) as opposed to a grant of Military Diversion. Veteran’s Treatment Court provides a higher level of structure and supervision for participants, while potentially earning a dismissal of the criminal conviction pursuant to Pen. Code § 1170.9.
2. Multiple grants of Military Diversion for the same defendant prevent that person from seeking the higher level of treatment available in Veteran’s Treatment Court, and as a result, Military Diversion should only be granted on a one-time basis.
C. PROCESS OF ADMISSION
1. Defendant files a Request for Military Diversion; Advisal and Waiver of Rights (SDSC Form #CRM-284) (hereafter “Request for Military Diversion”) at the earliest possible time prior to adjudication of the case.
2. Upon receipt of the Request for Military Diversion, the court will vacate any future hearing dates previously set and will set the matter for hearing on the Military Diversion calendar. A copy of the Request for Military Diversion will be sent by the court to the prosecuting agency with notice of the hearing date.
3. At least 15 calendar days prior to the hearing date, the defense must file and serve on the prosecution a Motion for Military Diversion that includes the alleged factual basis for eligibility for Military Diversion, including any supporting documentation (e.g., proof of military service and an assessment of the defendant’s condition by a mental health or other appropriate professional), as well as a proposed treatment plan from an appropriate mental health provider (e.g., from the program providers recommended in the assessment). Any opposition or response from the prosecution must be filed and served on the defense at least five calendar days before the hearing date.
- If the defendant has already compiled the motion, assessment, treatment plan, and/or other necessary evidence at the time he or she files the Request for Military Diversion, defendant should request a hearing date approximately three weeks out. Otherwise, the hearing date will be set approximately 60 to 90 days out.
- If the defendant is a military veteran, the assessment may be done by a regional Veterans Center (San Diego, San Marcos, or Chula Vista), the VA Mental Health Access Clinic, or the VA Substance Abuse Recovery and Rehabilitation Treatment Program.
4. If at the hearing the court finds the defendant is not eligible for Military Diversion, or that Military Diversion is not appropriate, the request for Military Diversion will be denied, any previously vacated dates will be reset, and the case will continue in due course.
5. If at the hearing the court finds the defendant is eligible for Military Diversion and that a grant of Military Diversion is appropriate, the court will grant Military Diversion for a period not to exceed two years, postponing the criminal proceedings for that time period. The court will impose conditions of the diversion program (e.g., treatment programs). Review hearings will be set to show proof of enrollment/compliance. The court will also set the date upon which the case will be dismissed if the defendant successfully completes the diversion program.
SDSC CRM-283 (New 6/15) MILITARY DIVERSION INFORMATION SHEET Pen. Code § 1001.80 Informational Form Page 1 of 2
D. EXAMPLES OF CONDITIONS OF MILITARY DIVERSION
1. Twelve to 24 months of treatment.
2. Protective Order (JC Form #CR-160) for the
duration of the diversion program (DV cases).
3. Fifty-two week Family Recovery Program at a regional Veterans Center (San Diego only) or a probation-certified Domestic Violence Recovery Program (DVRP). (DV cases.)
4. First Conviction Program (FCP) and MADD Impact Panel (DUI cases).
5. Random drug and alcohol testing by the treatment provider.
6. Substance abuse or other counselling, therapy or treatment as recommended in the assessment
7. Written progress reports from care/treatment providers due every 90 days.
E. SUCCESSFUL COMPLETION
1. At the end of the period of Military Diversion, if the defendant has performed satisfactorily, the court will dismiss the criminal charges.
2. The arrest will be deemed to have never occurred, except that (1) the Department of Justice will be notified of the disposition of the case; (2) the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to a peace officer application request; and (3) the defendant is still obligated to disclose the arrest in response to a direct question contained in a questionnaire or application for a position as a peace officer, as defined in Pen. Code § 830. Defendant must be advised of (2) and (3).
F. UNSUCCESSFUL COMPLETION
If it appears to the court that the defendant is performing unsatisfactorily in the Military Diversion program, or is not benefitting from the treatment and services provided, the court will set a hearing to determine whether the defendant shall be terminated from the Military Diversion program and the criminal proceedings reinstated.
California’s military diversion program establishes a pretrial diversion program for current and former members of the U.S. military who are charged with a misdemeanor offense. Under Penal Code, section 1001.80, subdivision (a), the military diversion program applies to a defendant accused of a misdemeanor offense, who was or currently is a member of the United States military, and who may be suffering from sexual trauma, traumatic brain injury[TBI], post-traumatic stress disorder [PTSD], substance abuse, or mental health problems as a result of his or her military service.” If a defendant meets this criteria, the Court may place him or her into a pretrial diversion program.
This is a link to an Eligibility Assessment Resources Guide, the purpose of which is to provide defendants and their counsel with resources that may be able to assist in assessing whether the defendant is eligible to be considered for diversion. These resources are not exhaustive or exclusive. Defendants and their counsel may seek to establish eligibility through other organizations, agencies, and means. A determination that a defendant meets the criteria for eligibility by any person, agency or organization, including those listed below, is not binding on the Court and may be subject to a contested evidentiary hearing.
By the way… Born on the 4th of July is a great movie.