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What is Mental Health Diversion?

Posted by Richard Wagner | Dec 24, 2022

Mental Health Diversion in California

The Law Office of Richard Wagner successfully persuaded a judge in Orange County to grant pretrial Mental Health Diversion for a client arrested and charged with driving under the influence (DUI) of drugs. However, as shown below the law has changed and Mental Health Diversion is longer available for DUI charges. But it is still a viable option for other misdemeanor or felony charges. 

Mental Health Diversion is found in Penal Code Section 1001.36. The legislature amended 1001.36 and those changes took effect on January 1, 2023.  One of the biggest changes is the language “The court is satisfied that the defendant suffers from has been deleted and been replaced with “the defendant has been diagnosed with a mental disorder as identified in the …Diagnostic and Statistical Manual of Mental Disorders…” Section 1001.36 (b)(1). And also, shall include a “recent diagnosis” has been deleted and replaced with “or treatment for a diagnosed mental disorder within the last five years.” 1001.36 (a)(1).

The other significant change is found in section (b)(2): (B)(2) The “court is satisfied” has been deleted and replaced with the following quoted language “the defendant's mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find” that the defendant's mental disorder was a significant factor in the “commission of the charged offense. A court may conclude that a defendant's mental disorder was a significant factor in the commission of the charged offense if, after reviewing” offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant's involvement in the alleged offense. A court may consider any relevant and credible evidence, including, but not limited to …

Changes to Subdivision (f) include the following:  

(C) The [diversion] period shall be no longer than two years. Is[:]
(i) If [the charge is] a felony, … no longer than two years.
(ii) If [the charge is] a misdemeanor, … no longer than one year.

What Is Pretrial Diversion?

Pretrial diversion postpones prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.

There are many obstacles to getting such a request granted. One is putting together a treatment plan. You must show the judge you can successfully complete a treatment plan and that you will not be a danger to the community.

You also need evidence that the mental health disorder was a significant or substantial factor in the commission of the charged offense. Is your case driving under the influence of alcohol or drugs or a combination? If so, what are the drugs? Is the drug medication prescribed for the mental disorder?

District Attorneys will object to the request for diversion. Why? Because DAs are programmed to object to whatever the defense attorney asks for.

What needs to be stressed is that the police were not the agency best suited to respond to a person clearly struggling with mental illness. Instead of being interrogated, detained, and arrested by police, your client should have been treated by trained mental health care professionals. The police prevented your client from getting proper health care in a time of crisis. Police lack the skills and understanding and resources to effectively address the needs of people living with chronic mental illness.

What Happens At The End Of Diversion?

If the client has performed satisfactorily in diversion, at the end of diversion, the court shall dismiss the criminal charges. The clerk of the court shall file a record with the Department of Justice that shows the case was diverted pursuant to Penal Code Section 1001.36. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred.

What Is Satisfactory Performance?

Substantially complying with the requirements of diversion, avoiding significant new violations of law unrelated to the client's mental health condition, and having a plan in place for long-term mental health care.

Can You Get Mental Health Diversion for a DUI?

The courts have ruled that Vehicle Code section 23640 bars mental health diversion under Penal Code Section 1001.36 for DUI cases. Moore v Superior Court (2020) 58 CA5th 561; Tellez v Superior Court (2020) 56 CA5th 439, 443.  Furthermore, the courts have ruled that you can no longer get misdemeanor diversion under Penal Code section 1001.95 for DUI cases because of VC 23640.  Tan v Superior Court (2022) 76 CA5th 130; Grassi v Superior Court (2021) 73 CA5th 283; People v Superior Court (Espeso) (2021) 67 CA5th Supp 1, 6. Although, you still can get military diversion for a misdemeanor violation of VC 23152 or 23153 under Penal Code Section 1001.80. 

If you or someone you care about has been arrested, contact the Law Office of Richard Wagner, A Professional Corporation at (714) 721-4423 for a FREE  Consultation.

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Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...