Mental health diversion under Penal Code 1001.36 allows certain criminal defendants to avoid jail time for most criminal offenses. Before the approval of a proposed treatment program, courts will consider the requests of both the defense and prosecution, as well as the needs of the defendant and the interests of the community. Mental health diversion may last no longer than two years and may consist of both inpatient and outpatient treatment. During these two years, the defendant’s progress is regularly and closely monitored.

Treatment under a mental health diversion program may take many forms such as counseling, therapy, and treatment for substance abuse, if applicable. The diversion program may be administered through a public or private organization. These providers of the diversion treatment program will provide regular progress reports to the court, defense, and prosecutor.

Certain events will trigger a hearing to determine the following:

  • whether the treatment program should be modified,
  • whether criminal proceedings against the defendant should be reinstated, or
  • whether the defendant should be referred to a county investigator for possible conservatorship proceedings.

The following circumstances will trigger a hearing:

  • The defendant is charged with a new misdemeanor that reflects a propensity for violence;
  • The defendant is charged with a new criminal offense that is a felony;
  • The defendant engages in criminal conduct that makes diversion personally unsuitable; or
  • A qualified mental health expert advises the court that:
    • The defendant’s performance in the assigned treatment program is not satisfactory, or
    • The defendant is gravely disabled.

If the defendant successfully completes the treatment program, at the end of the diversion period the court will dismiss any charges. The arrest will be sealed. For most purposes, it will be as if the arrest and prosecution had never happened. But for some exceptions, these former charges may not be used to deny a former criminal defendant any employment, benefit, license, or certificate.

A defendant is considered to have successfully completed a program when:

  1. The defendant has substantially complied with the requirements of diversion,
  2. The defendant has avoided significant new violations of law unrelated to the defendant’s mental health condition, and
  3. The defendant has formulated a plan for long-term mental health care.

If diversion is not completed, the court will reinstate the criminal proceedings against the defendant. The defendant will still be able to introduce any available criminal defenses to the charges.

If you are experiencing mental health issues that have caused you to be charged with a crime, the resolution of your matter through the California PC 1001.36 diversion program may be available as an option. John Patrick Dolan is a California State Bar Certified Specialist in Criminal Law, the highest achievement awarded by the State Bar of California to attorneys in the field of criminal law. Call today at (760) 775-3739 or find out more online here.

Measuring Progress In Mental Health Diversion Cases

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