Serving in the army has contributed significantly to mental health problems, including Post Traumatic Stress Disorder (PTSD) and depression. Witnessing combat, injury, death, and sexual trauma are some of the issues that drive veterans and active service members to drug and substance abuse, which increases the likelihood of a DUI-related arrest. A DUI conviction means you will suffer consequences such as incarceration, fines, probation, attendance of a DUI school, and license suspension. In addition, they are likely to face administrative action from their commanders.
The criminal justice system, in recognition of the struggles of service members go through adjusting to civilian life, designed the military DUI diversion program. The program helps veterans and active service members in dealing with PTSD, trauma, and alcohol and substance abuse to avoid the negative consequences of a criminal conviction. The San Jose DUI Attorney Law Firm plays a role in ensuring eligible veterans and active service members are referred to the relevant programs to help them deal with the root cause of their drinking problems.
DUI Military Diversion Program Overview
California PC 1001.8 authorizes the postponement of misdemeanor criminal proceedings against a veteran to allow him or her to get treatment for PTSD, sexual trauma, traumatic brain injury, mental health issues, and substance abuse. The program further allows for the dismissal of charges against active and veteran service members after the successful completion of the program.
Since DUI military diversion is a pretrial program, the defendant does not have to enter a plea to be eligible. The court automatically assumes you are innocent. The eligibility requirements for the program include:
- You are a veteran or active member of the US military
- While in your service, you suffered from sexual trauma or are suffering from mental health problems arising from your service.
Some of the conditions that can qualify you for enrollment in a DUI military diversion program include:
Post-Traumatic Stress Disorder
PTSD results from difficulty or failure in recovering from the traumatic events you experienced or witnessed while in the military. PTSD is a serious disorder characterized by flashbacks, anxiety, relieving the experience and difficulty in coping with the daily activities in your life.
The major symptoms of PTSD include:
- Intrusive memories which occur in the form of recurring memories, upsetting dreams, and nightmares, severe emotional distress, physical reaction to triggers and flashbacks
- You avoid talking about the experience or avoid the people, places, and events that trigger memories of the traumatic experience
- You develop negative thoughts and moods about yourself and the world. Such negative emotions make it hard to relate with other people or form lasting relationships. You also lose interest in activities that you previously enjoyed.
- Your emotional and physical reactions change. You may become extremely alert, easily startled, and have trouble sleeping or concentrating. In addition, you may experience aggressive behavior, outbursts, guilt, shame, and self-destructive behaviors.
If these symptoms last for more than a month, then you are dealing with PTSD.
Military Sexual Trauma
Military sexual trauma is the psychological pain arising from sexual assault, battery, or harassment that occurred during your service in the military. Military sexual trauma has the potential of causing or contributing to PTSD. It may include actions such as:
- Sexual battery
- Coerced sex or oral copulation
- Penetration with an object
- Offensive and threatening remarks about your body or sexuality
- Unwanted and threatening sexual advances
Both male and female members of the military are at risk for sexual trauma. While it may go unreported, it often contributes to mental health issues, including depression.
Traumatic Brain Injury
Violent jolts or blows to the head can result in the permanent damage of the brain, resulting in complications that may last a lifetime. TBI can be mild, moderate, or severe. Some of the symptoms of traumatic brain injury include:
- Loss of consciousness or confusion and disorientation
- Headaches that may be persistent for severe cases
- Nausea, vomiting, and fatigue
- Difficulties with sleep or sleeping too much
- Dizziness, drowsiness, problems with balance and a lack of coordination
- Blurred vision and light sensitivity
- Problems with memory and concentration
- Depression, mood swings and anxiety
- Convulsions and seizures
- Slurred speech
- Agitation, aggressiveness
You can sustain traumatic brain injury while in the military from a bullet, serious falls, explosive blasts, penetrating wounds, and collision with an object.
Traumatic brain injury causes emotional and physical symptoms that can strain the individual. In some cases, individuals resort to alcohol or drugs to help them cope with their situation.
Drug and Substance Abuse
Active and veteran members of the military have an increased chance of developing problems with drug and substance abuse. The risk is even higher for members who experienced combat and other confrontational activities during their service.
Military service also leads to the development of a unique culture different from civilian life. This culture makes it hard for most veterans to adjust to their civilian way of life, leading to problems with drug and substance abuse.
Some members of the military are dependent upon pain medication, which also creates a substance use disorder. The fear of seeking help could worsen the situation, especially for individuals who are afraid of the negative consequences of seeking professional help. At the military bases, the service members have easy access to cheap alcohol, making alcohol addiction a likelihood among some of them.
PC 1001.80 recognizes the challenges and exposure the military have to alcohol/drug abuse and substance use disorder and provides them with a channel to resolve the root cause of the problem so that the veterans can adjust to becoming responsible and law-abiding citizens.
You are eligible for military diversion if you are arrested for offenses such as a California DUI, misdemeanor possession of narcotics of assault and battery.
Mental Health Problems
The military plays a crucial role in the protection of the country and in fighting for peace around the world. However, the burden that veterans and active members carry can have a negative effect on the mental health of these individuals.
Some of the common mental health issues that may develop from military service include:
- Depression which may contribute to suicidal thoughts, self-harm, isolation, and suicide
- Bipolar disease
The military experience these mental health issues due to a number of challenges, including:
- Long separation from friends and family
- Foreign combat which exposes them to psychological and physical trauma by witnessing death, having to kill others or suffering serious injuries
- Loss of control of one’s life which may create uncertainty and feelings of unworthiness when trying to adjust to civilian life
- Fear of dishonorable discharge or negative career consequences for seeking help for, or displaying signs of mental health problems
- Lack of access to confidential or unavailability of mental health treatment facilities
- Lack of mental health screenings, which would detect the problem early
These mental health problems increase the chances of committing offenses such as a DUI, which exposes you to severe consequences.
Getting Into a Military DUI Diversion Program
In most cases, your attorney will refer you to the court requesting that you go through the program. Your lawyer will also require you to sign a waiver of your right to a speedy trial. The waiver of rights protects courts from taking your constitutional rights from you since the program can last for up to two years.
When filing the motion to request for diversion, your lawyer will have to show proof of the said conditions, service in the military and other supporting evidence to show that you are eligible and could benefit from the program.
Upon receiving the request, the court will conduct an assessment (which may include a hearing) to determine whether you are eligible and if the program is likely to be beneficial to you. After assessing you, the court will postpone all your court dates to allow you to get into the program, or conduct an assessment as to your eligibility.
If you are not eligible, the court dates will be reinstated, and the case will proceed. You may be ineligible for military DUI diversion under the following circumstances:
- The court determines that the program would not be beneficial to you
- You have prior convictions for the same offense
- You have attended a military diversion program before
If you are not eligible for the military diversion program, your lawyer will investigate your case to determine whether you are eligible for alternative treatment programs such as the veterans’ court.
If the court decides that you are eligible for diversion, you will be placed on a program for a specified period, usually up to two years. During the period, the court will monitor your performance to determine whether you are benefiting.
The assessments by the court to determine the benefit of the program inform the decision whether to cancel the program and restore the criminal charges or to allow you to complete the program.
The court will also refer you to either a community or a federal-based treatment program depending on your needs and circumstances, and the success of the program in dealing with different issues.
Conditions for DUI Military Diversion
Once the court approves your request to join a military DUI program, you will be required to adhere to some predetermined conditions. The court will schedule a date when all the conditions will be made. These conditions include:
- You must attend the treatment sessions
- You must get treatment for substance abuse
- You should agree to submit random alcohol or drug tests
- The administering agency will submit regular reports of your performance
- Enrollment into a 52-week family recovery program
- Attendance to a MADD class for a first DUI offense
After the successful completion of your program, the court will review your performance and dismiss the charges against you. After the dismissal, your records will be sealed an unavailable for most purposes. As such, it will be legal for you to say that you were not arrested for the crime, when seeking employment, benefits, licensing, or certification.
However, you should always disclose the arrest if you are making an application to become a peace officer.
If you do not complete the program, or fail to adhere to the set conditions so that your performance is "unsatisfactory," then the charges against you will be restored.
Termination of Military DUI Diversion Program
The court may terminate the diversion program before its completion if you fail to fulfill the set conditions or your performance is unsatisfactory. The court receives regular updates from the agency administering the program. Depending on the report, the court may convene a hearing on whether to dismiss the program, if it is not beneficial or your performance is unsatisfactory.
If the court decides to terminate the program, it will restore the charges and proceedings against you. In such a case, you need a DUI defense lawyer by your side for legal representation during the criminal proceedings.
The criminal proceedings will progress, as usual, beginning with the arraignment. You will take a plea after which the case proceeds to either sentencing or trial. If your case goes to trial, you can use PTSD as a defense for your offense.
PTSD is a mental health condition that is acceptable under the California insanity defense. The defense presents mitigating factors that contributed to your commission of the offense and can result in reduced charges and lenient sentencing. While using the defense, your DUI defense attorney will prove that you had no understanding of the nature of the act, and you could not differentiate between right and wrong.
When the defense is successful, the court may decide to offer mental health treatment as an alternative sentence instead of jail time. Here are some post-conviction treatment programs into which you might enroll:
PC 1170.9 Treatment
PC 1170.9 provides alternative sentencing to qualified veterans who have been convicted of an offense. The eligibility requirements under 1170.9 include:
- You are eligible for parole
- You suffer from a mental health condition arising from military service
Since you may get probation for a DUI offense, you are eligible for PC 1170.9. The conditions eligible under this program include PTSD, military sexual trauma, substance abuse disorders, traumatic brain injury, and other mental health problems such as depression. The court will require you to provide proof of service in the military and proof of medical diagnosis for the condition.
If the court decides that you are qualified, you will be placed on probation and get an order to enroll in a treatment program. The period lasts as long as your jail or prison term should have lasted.
You are said to have successfully completed the program if:
- You substantially fulfilled the conditions of probation
- You participated in the treatment program as required
- You do not pose a health or safety risk to others
- You have shown substantial benefit from the program
After the successful completion of the program, the court will either dismiss your charges or reduce the charge to a misdemeanor.
Mental Health Diversion
PC 1001.36 allows defendants charged with a crime to postpone the criminal proceedings as they go through treatment. PC 1001.36 mental health diversion program is available to all offenders, including veterans, and can be requested at any point in the criminal proceedings before sentencing.
Mental health diversion accommodates both defendants facing misdemeanor and felony charges. However, the defendants have to meet strict eligibility criteria, which include:
- You suffer from a mental health condition
- The mental disorder you suffer from contributed to the commission of the offense
- A mental health expert agrees that the program will be beneficial to you
- You consent to enrollment into the program and waive your rights to a speedy trial
- You agree to complete the treatment as a condition for diversion
- You do not pose a risk to public safety
California's veterans court is a highly structured program that seeks to offer alternative sentencing to veteran DUI or drug offenders. The qualifying members under this program should be veterans who have developed PTSD or a mental health problem arising from their military service.
Veteran's court offers an intensive rehabilitation program tailored to the individual needs of the veteran. The benefits of attending the veteran's court include:
- Termination of probation
- Reduction of felony charges to misdemeanor charges
- Dismissal of criminal charges
The veteran court treatment program lasts for a minimum of 12 months, depending on the offense. The program involves four major phases:
- The first phase includes weekly court meetings, meeting with the probation officer, and submission of random drug tests and reports to the court about your progress. This phase is the most intensive and demanding and usually lasts four months.
- The second phase is less demanding. It includes meeting similar to those in phase one, but with less frequency and lasts three months
- The third phase typically lasts five months and involves fewer meetings and random drug tests
- The fourth phase equips veterans with the skills to adapt to civilian life. After the program, the veteran may receive referrals for training, schooling, and employment opportunities.
The eligibility conditions include:
- You are a veteran of the US military
- You had an honorable discharge
- You are eligible for probation
- You plead guilty to the charges against you
- You agree to participate in the program which will last between 15 and 18 months
- You are suffering from military sexual trauma, traumatic brain injury, substance abuse disorder, PTSD or mental health problems due to military service
Once you complete the program, the court will determine whether it was a success by considering the following:
- Your degree of –participation in treatment, education, and rehabilitation
- Your progress in formal education
- Your career potential
- Your efforts in personal responsibility and leadership
- Your contribution to the community
The successful completion of the veteran’s court program helps you avoid jail or prison, or reduce the sentence you get.
What to Expect After Military DUI Diversion
The biggest expectation after successfully completing a military DUI diversion program is that your charges will be dismissed and the records or arrest sealed. However, you are still responsible for dealing with the administrative consequences of a DUI arrest in California. The DMV automatically suspends your license if you are arrested for a DUI.
It is your responsibility to challenge the suspension within ten days of the arrest. You or your lawyer should schedule a DMV hearing within the ten-day window. At the hearing, you or your lawyer will present the defense as to why your driving privileges should be restored.
In case you do not complete the program, then the criminal proceedings are reinstated. You can expect criminal charges in a civilian court or action from your commanding officer, and other military administrative consequences. Some of the consequences include:
- Victim restitution (in case the offense resulted in injury)
- License suspension
- Mandatory attendance of a drug treatment program
The military can impose administrative punishment, such as:
- Poor performance reports
- Denial of benefits
- Dishonorable discharge
- Additional duties
Find a San Jose Military DUI Attorney Near Me
Military DUI charges come with a lot of stigma for active and veterans. If you are convicted for a DUI crime, the consequences go beyond the criminal punishment. You risk losing your benefits, missing employment, and educational opportunities, especially if you get a dishonorable discharge. In addition, demotion from your rank thwarts your career progress and reputation. However, in recognition of the services the military offers the citizens of the US, the courts introduced the military diversion program to allow veterans facing mental health issues and trauma from their service to get treatment instead of conviction.
If you are arrested for a DUI offense and suffer from conditions such as military sexual trauma, PTSD, traumatic brain injury, substance abuse disorders, and mental health problems, you might be eligible for a military DUI diversion program. Contact the San Jose DUI Attorney Law Firm for an evaluation of your case to determine the most appropriate diversion program for you. Our attorneys have helped veterans avoid a conviction by helping them get into diversion programs that address the challenges they are facing. Call us today at 408-777-6630 for an evaluation of your case.