Military Diversion under Penal Code § 1001.80 is viewed by some judges as an unfair windfall for military veterans or current military members. They seem skeptical of anyone claiming self-medication with alcohol to treat depression or PTSD, suggesting that the ex-military or current serviceman was simply out having a good time at a bar like anyone else and drank too much, so he or she should not enjoy any breaks.
One District Attorney, as in the case described below, echoed this reservation, remarking, “I get tired of seeing all these former military guys claiming alcohol abuse syndrome because we all know, the military is just one big frat party by guys who could not get into college. I just don’t buy it.” The prosecutor who said this to me did not know she was speaking to a military veteran in Greg Hill.
It is therefore wise for a criminal defense attorney representing someone seeking military diversion to recognize this skepticism of those who may oppose or deny such a program and rebut it by describing in detail what military duties the serviceman performed that would make mental illness or mental disability more likely and be more clear in establishing the nexus between the crime and the mental disability, even if the law does not strictly require this.
In the following DUI case out of Newport Beach, our client, age 36, was a former Air Force security forces journeyman. He served four years in the Air Force and never deployed outside the United States. He often was a gate guard at an Air Force base. He never saw combat and never fired a weapon in an operational capacity.
Newport Beach Courthouse
In 2018, he was returning home from a night of drinking with friends in Newport Beach bars. As he got to the red light at the intersection of Irvine Boulevard and Groveland, he fell asleep with his foot on the brake, but the car in drive.
A passing motorist noticed he was asleep behind the wheel and called the police, who responded to the scene and woke him up. Our client was cooperative and submitted to a breath test at the scene, blowing a sample that was measured at 0.13% and 0.14% blood alcohol content (BAC).
He was arrested and cited out for DUI, signing a promise to appear in the Newport Beach Superior Court in about two months.
In the meantime, he called Greg Hill & Associates and spoke with Greg Hill. He described the facts of the case and mentioned he was a former enlisted man in the Air Force. Greg then explained that he may be eligible for a program of diversion called military diversion and explained how it differed from Veteran’s Court and was different from a form of probation available under Penal Code § 1170.9.
The client in this case had a bona fide alcohol abuse problem that did not just conveniently arise after he left the service. He was actually treated for depression and PTSD while in the Air Force and left the military because of this condition, although not involuntarily. He had an honorable discharge.
The client was extremely eager to receive the benefits of military diversion and was perhaps the exact type of person the statute had in mind when written, even though our client did not exactly develop PTSD after being a prisoner of war or having his best friend dies in his arms from enemy fire.
Greg prepared the Motion to Imposition of Military Diversion and provided the client’s DD-214, explained the nature of his mental disability that was service-related and how he had a history of alcohol abuse starting before he even left the military.
The DA fought the motion on the “frat party” defense that our client was just a heavy drinker who happened to have served in the military, but it was not service-related. The judge agreed and denied the motion. Our client was flabbergast.
Greg refiled the motion, getting a stronger letter from the VA, explaining that the medical records showed our client began drinking because of the stress of military service and that his symptoms decreased when the job duties eased. Greg further described the type of duties that created such stress, which showed duties that were uniquely military in nature and refuted the “one big frat party” stereotype the prosecutor seemed to regard as the military.
On refiling the motion, the judge granted the motion, much to the relief of our client (and Greg!). The judge then ordered the client to a full two-year program of rehabilitation, suggesting it would not be one day short of two years, which is the maximum time permitted for one on such diversion.
The matter was then transferred from the Newport Beach Court to the Orange County Collaborative Court in Santa Ana, about a mile from the Santa Ana Superior Court. Our client then underwent an intensive two-year program there and earned his dismissal.
We offer this summary to show judges and prosecutors can oppose military diversion with sarcasm and envy. It is wise for any criminal defense attorney seeking this to carefully present the case, with thorough explanation, to navigate around such reservations the judge and prosecutor may have.
For more information about military diversion in a DUI, please click on the following articles: