In 2014, the California Legislature passed a bill which created a military diversion program for current and former U.S. military personnel who have been charged with a misdemeanor offense. In essence, the program would allow our U.S. military personnel to participate in a diversion program in exchange for the dismissal of their case.
Accordingly, California Penal Code §1001.80 sets forth in pertinent part:
“Whenever a case is before a court on an accusatory pleading alleging the commission of a misdemeanor offense, and both of the following apply to the defendant:
(1) The defendant was or currently is, a member of the United States military; and
(2) The 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.
Then the court may, with the consent of the defendant and waiver of the defendant’s speedy trial right, place the defendant in a pretrial diversion program.”
As such, if you are current and former US military personnel, than your matter could be dismissed based upon participation in a diversion program pursuant to Penal Code §1001.80.
Recently, however, there has been a disagreement amongst courts as to whether military diversion as outlined above applies to misdemeanor DUI offenses. In an Appellate Decision from the Fourth District stemming from a San Diego DUI matter, the Court ruled that military diversion is not available for misdemeanor offenses. (
People v. VanVleck, (2016) 2 Cal. App. 5th 355.) However, the Second District, in a case stemming from a misdemeanor DUI from Los Angeles ruled that military diversion is available for misdemeanor DUI offenses. (
Hopkins v. Superior Court, (2016) 2 Cal. App. 5th 1275). And the First District, in an unpublished decision,
Darr v. Superior Court, (2016) Cal. Ct. App., agreed with the
Hopkins Court and found that military diversion is available for misdemeanor DUI offenses. As of the date of this post, the California Supreme Court has yet to rule on the issue. Accordingly, there remains an ambiguity as to whether military diversion is applicable for misdemeanor DUI matters.
To read Penal Code §1001.80 in its entirety, click below. http://law.justia.com/codes/california/2014/code-pen/part-2/title-1/title-6/chapter-2.9c/section-1001.80
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