Undoubtedly, being under arrest is a stressful and confusing event because you do not know what could happen next, especially if it is your first time in the hands of the police for any alleged offense. Fortunately, after the enactment of the Assembly Bill (AB) 3234, you could have a second chance to fix your mistakes if the charge you are up against is a qualifying misdemeanor offense.
AB 3234 is a misdemeanor diversion program that gives you a chance to have your case erased or dismissed if only you complete a court-approved diversion program. Undergoing a pretrial diversion is an opportunity you cannot afford to miss because it could help you avoid a conviction and many other potential consequences, including imprisonment and hefty fines.
To know whether your alleged offense is a qualifying misdemeanor for these pretrial relief options, you should speak to an experienced defense attorney. A reliable defense attorney will let you know and guide you on the appropriate and ideal diversion program suitable for your unique case.
Continue reading this article to learn more about misdemeanor diversion programs and eligible offenses.
What is a Misdemeanor Diversion Program?
Typically, a misdemeanor diversion program under AB 3234 pauses your criminal charge in the criminal justice system, allowing you to avoid several detrimental consequences that are likely to follow after an arrest for any alleged offense.
According to AB 3234, if you are under arrest on suspicion of committing a non-violent misdemeanor charge, you can request the preceding judge for a misdemeanor diversion program. The court will review your alleged case to find whether or not you are the right candidate for this pretrial relief option.
If you are eligible for this pretrial relief option, the judge will choose the ideal diversion program relevant to your alleged case. Then, he/she will assign a treatment list which you must abide by during your treatment duration. Depending on your unique case's facts, below are some of the treatment conditions the court could require you to comply with:
- Pay restitution or compensation to the victim of the alleged offense
- Avoid possession or buying of firearms (if applicable)
- Avoid alcohol and other unlawful or controlled drug substances
- Stay away from the victim of the alleged offense (restraining orders), especially if the alleged offense is related to domestic violence
- Attend drunk driving lessons if you are under arrest for driving under the influence of alcohol
- Community service
- Any other relevant court-approved conditions
If you violate any of these conditions or requirements of your pretrial diversion program, the judge with the jurisdiction over your case will schedule a hearing. Typically, the primary purpose of this hearing is to determine whether or not you violated the court-ordered conditions.
If you did not adhere to the required conditions, the court would order your alleged case to recommence, meaning you will face the ordinary prosecution. However, when you abide by the conditions of your pretrial diversion program as required, the court will dismiss your case upon completion of the treatment program.
If the court drops your case, your attorney can also help you request an expungement which will erase your arrest records for a fresh start. To convince the court you deserve a second chance by participating in a pretrial diversion program, it is wise that you hire an attorney ahead of time.
An attorney can significantly increase your chances of qualifying for a pretrial diversion program to fix your mistakes.
How to Obtain Misdemeanor Diversion Program
Typically, the recent misdemeanor or pretrial diversion program aims to keep first-time offenders out of jail by allowing them to participate in a rehabilitative program to make them law-abiding citizens.
Since a conviction for any misdemeanor offense could ruin your entire life, a pretrial diversion program can help you fix your mistake and prove that you are not a threat to the community or the public.
That means you must prove that you are the right candidate for a misdemeanor diversion program. That is why you need the services of an attorney to increase your chances of obtaining this pretrial relief option. You and your defense attorney will create a creative plan for showing and convincing the judge that you will benefit from a pretrial diversion program.
Doing this can involve seeking written character references or creating a professional resume. Since every case is unique, your attorney can also help you address factors and issues specific to your situation and you as an individual.
For instance, if the offense you are up against stems from a possible drug substance abuse problem, he/she can show the court how you have proactively participated in self-help programs. On the other hand, if you are under arrest for an alleged petty theft crime stemming from an addiction to unlawful or prescription drugs, your attorney can show the court you are overcoming this problem.
With these kinds of arguments, the judge presiding over your case could have a reason to believe that you are the right candidate for a misdemeanor diversion program. Other factors the court will consider before allowing you to participate in a diversion program instead of going through the usual prosecution process include:
- Criminal background
- All facts and circumstances related to your unique case
- Your likelihood of completing the diversion program
- Your likelihood of re-offending
Generally, even if you think you are the right candidate for a misdemeanor diversion program, you will not obtain it automatically. Ensure you speak to an attorney about setting up a misdemeanor diversion program if you are under arrest for any offense.
A Brief Overview of Pretrial Diversion Programs That You Ought to Know
Pretrial diversion programs undoubtedly present an opportunity you cannot overlook if you are in trouble with the law for any alleged offense.
Worried that you could not qualify for a pretrial or misdemeanor diversion because of a past criminal record?
Well, you do not have to because there are three main types of pretrial diversion programs that you could qualify for, including:
Drug Diversion Program Under Penal Code (PC) 1000
Also known as low-level misdemeanor diversion, drug diversion allows defendants under arrest for non-violent misdemeanor drug crimes to participate in treatment programs instead of going through the usual criminal court processes. Before January 2018, this program's legal name was DEJ (Deferred Entry of Judgment).
The court required you to enter a guilty plea to qualify for the pretrial diversion program in this previous version. Then after completing the court-ordered treatment program successfully, the court will dismiss your alleged charges.
Fortunately, as of today, this diversion is still a pretrial program. However, you do not have to plead guilty to the alleged charges to qualify for this pretrial diversion program according to Penal Code (PC) 1000. Typically, this diversion program has a duration of about twelve (12) to eighteen (18) months, depending on the discretion of the judge presiding over your case.
It is worth noting that when you choose to obtain this diversion program, you automatically waive your legal right to a speedy trial. According to PC 1000, you have to meet the following conditions to qualify for a drug diversion program:
- You do not have a felony conviction on your record in the past five (5) years
- You do not have a conviction for a charge that is ineligible for drug diversion under PC 1000 in the past five (5) years
- There is no evidence against you of a more severe crime or charge that is ineligible for drug diversion under PC 1000
- The alleged charge does not involve threats of violence or violence
Wondering whether or not the alleged charge can qualify for drug diversion under PC 1000?
Typically, the following listed drug crimes or offenses can resolve through drug diversion programs under PC 1000:
- Public intoxication
- Illegal possession of cannabis or marijuana
- Possession of toxic drug substances for "huffing"
- Being under the influence of unlawful or controlled drug substance
- Using or having forged or "fake" prescriptions for narcotics
- Unlawful marijuana cultivation
- Possession of prescription sedatives
- Possession of drug paraphernalia
- Possession of meth (methamphetamine)
Assuming that you meet other requirements or conditions mentioned above, you can qualify for a drug or misdemeanor diversion program if you are under arrest for any of the above-listed drug crimes. Having an attorney with significant experience in this area of law is critical.
An experienced defense attorney who stays up to date with these ever-changing laws can increase your chances of qualifying for a drug diversion upon an arrest for an alleged drug crime.
Mental Health Diversion Program Under Penal Code (PC) 1001.36
Another pretrial diversion program that you ought to know about is the mental health diversion program under PC 1001.36. If you or someone you care about is struggling with mental health issues and is under arrest for an alleged crime, he/she could qualify for a mental health treatment program.
According to PC 1001.36, you can qualify for a mental health treatment program instead of going through the criminal justice system if you are under arrest for an alleged misdemeanor, felony, or a wobbler offense.
In most situations, this program provides you with a chance to invest in your mental health for not more than two (2) years with the court's assistance. During the treatment duration, the court could require you to go through:
- Counseling sessions with a qualified mental health expert
- Drug treatment as recommended by a qualified psychiatrist
- Therapy sessions with a qualified expert or professional
Typically, the judge, mental health advisors, court-approved probation officer, and your defense attorney collaborate with the best hopes for your healing or success during the mental health treatment. Once you complete the court-approved mental health treatment program, you can have your alleged charge dismissed and sealed.
Having your case sealed is very important because it gives you a fresh start without a criminal record. That means anyone who wants to know your criminal history will not know if you have a past arrest record, including a potential employer.
Generally, from June 27, 2018, any person under arrest for any misdemeanor or felony offense can qualify for a mental health diversion program under PC 1001.36. The exceptions that could make you ineligible for this pretrial diversion program include:
- Continuous sexual abuse of a child
- Assault with criminal intent to commit sodomy, oral copulation, or rape
- Voluntary manslaughter
- Any offense that would lead to inclusion in the sex offender registry upon conviction
- Particular acts of terrorism
- Lewd acts involving a child under 14
- Sex in concert with another
According to PC 1001.36, you can qualify for a mental health diversion program if you are under arrest on suspicion that you are a culprit in any crime, except the ones listed above if:
- You have an eligible mental illness or disorder recognized by the DSM (Diagnostic and Statistical Manual of Mental Disorders)
- A qualified mental health expert or professional can attest that your mental health disorder played a significant role in the alleged charge, and you could benefit from a treatment
- You are ready to waive your legal right to a speedy trial
- The court has determined that you are not a threat to public safety
- The diagnosis is not an antisocial personality disorder, pedophilia, borderline personality disorder
- You are ready to participate in a mental health treatment program
Typically, if your diagnosis results reveal that you have any of the following common disorders or conditions, you could qualify for a mental health diversion program under PC 1001.36:
- Post-traumatic stress disorder
- Schizoaffective or schizophrenia disorder
- Bipolar disorder
It is a brilliant idea to speak with a reliable defense attorney who can help you navigate these confusing laws if you are under arrest for any alleged criminal offense. Having a credible attorney in your corner can help you convince the prosecutor that you deserve a second chance to fix your mistakes by participating in the relevant mental health diversion program.
Military Diversion Program Under Penal Code (PC) 1001.81
Military diversion is the third pretrial diversion program you can participate in if you are up against a criminal charge that could potentially lead to a conviction if you go through the usual court procedures. As long as the alleged charge is not a felony, you could qualify for a military diversion program under PC 1001.81 if you are a current or past military member.
However, you have to prove to the court that military service is the cause of your current condition or disorder, including:
- Drug substance abuse problems
- Traumatic brain injury
- Sexual trauma
- Mental health problems
- Post-traumatic stress disorder (PTSD)
Generally, if the alleged offense is a misdemeanor, you could qualify for military diversion under PC 1001.81. Some of these misdemeanors include (but are not limited to):
- Drunk driving or driving under the influence (DUI)
- Possession of narcotics
- Battery or assault
It is worth noting that the military diversion program under PC 1001.81 is only available to first-time offenders. Therefore, if you have a past criminal record, you could be ineligible for this pretrial relief option. If you are eligible to participate in this pretrial diversion program, the court could require you to adhere to the following conditions:
- Complete a substance abuse treatment program successfully
- Complete your probation successfully
- Pay restitution to the victim of the alleged offense
- Participate in a therapy session with a qualified expert
While this pretrial diversion program could help you avoid conviction, it is wise to talk to a defense attorney because this option could have detrimental consequences on your career path if you are still active on duty. Your defense attorney will know what is best for you, depending on your unique case’s facts.
If you are eligible for any of the above pretrial diversion programs, you must adhere to the court-ordered conditions or requirements. Otherwise, you will have to counter the alleged charge as a normal criminal case, which means you have to prepare proper defense arguments to fight the case at trial for the best possible outcome.
Benefits of Participating in Any of the Above Pretrial Diversion Programs
Generally, there are several benefits you will enjoy if you choose to participate in any of the above-explained pretrial diversion programs instead of going through normal court processes, including:
- You will avoid a criminal record which can affect your professional licenses and your chances of securing employment and housing
- You will avoid detrimental consequences of a conviction, including hefty fines, lengthy prison terms, and possible deportation if you are a non-citizen
- You will avoid a costly, contentious, and lengthy trial
Find a Defense Attorney Near Me
Even if you are confident that you are the right candidate for a misdemeanor diversion program, it is wise to talk to a defense attorney to increase your available chances of success. If a pretrial relief option is available, your attorney will work diligently and wisely to ensure your case takes this turn.
We invite you to call The Los Angeles Criminal Defense Attorney at 310-564-2605 if you or someone you love is under arrest for an alleged misdemeanor offense to know your pretrial relief options. Our credible and experienced attorneys will offer you the legal advice you need on a suitable pretrial diversion program that could work out in your favor.