Are There Pre-Trial Alternatives To A Trial Or A Conviction Of A Criminal Offense?

California State courts have authorized an increasing number of pre-trial diversions. Once someone has been referred by the court to a pre-trial diversion program, they will participate in classes and programs for the length of the diversion term, which is typically between six months and two years. Upon successful completion, the arrest is sealed, with the exception of a background check that would be run during the processing of an application to become a police officer. The benefit of pre-trial diversion is that the case is dismissed and there is no record of the arrest.

There are several types of diversions. The governor passed legislation (Penal Code section 1001.95) which became effective starting January 2021, giving the courts the discretion to divert most misdemeanors. In addition to the discretionary diversion, there are certain legislated diversions in specific cases. For instance, a person should qualify for a drug diversion as long as they have no prior drug offenses or felony convictions within the preceding five years, and as long as the actual offense did not involve a crime of violence or threatened violence, as well as no evidence of drug sales. Diversion pursuant to Penal Code section 1001.95 does not apply to sex offenses, domestic violence, stalking and driving under the influence.

Another type of diversion in California is a military or veterans’ court diversion. (Penal Code section 1001.80). To qualify, there must be a connection between the individual’s military service and a sexual trauma, traumatic brain injury, traumatic stress disorder, substance abuse, or mental health issue. Military diversion lasts for six months to two years, and upon successful completion will result in the dismissal of the case and no conviction.

Mental health diversion pursuant to California Penal Code Section 1001.36 is an avenue for those suffering from a mental illness to obtain pretrial relief. To qualify, a person has to suffer from a mental health disorder. The person’s mental disorder must have contributed to their arrest in the opinion of a mental health expert (e.g. a psychotherapist), and it must be the case that the person’s mental health disorder will respond to treatment. In addition, the person has to comply with requirements of either the probation department or pretrial services as a condition of the diversion. While this doesn’t apply to serious crimes, most crimes will ultimately be dismissed upon successful completion of the mental health diversion, which lasts between six months and two years.

California recently approved primary caregiver diversion as set forth in Penal Code Section 1001.83, which states that the trial court may grant pre-trial diversion for all misdemeanors and most felony offenses on the basis that the person charged is a primary caregiver. All the individual must demonstrate that they are a legal guardian for a child who lives with them, and that they provide financially for that child. The primary caregiver cannot be accused of committing a crime against the person for whom they’re the caregiver. An individual who enters this diversion program will submit to counseling (e.g. parenting classes, mental health screening, family case management, drug and alcohol treatment), and upon successful completion of a six-month to two-year term, their case will be dismissed.

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