DIVERSION FOR ACTIVE MILITARY AND VETERANS TO PREVENT A DUI CONVICTION!

Sep 9, 2016 @ 05:24 PM — by Myles L. Berman

The goal of the criminal justice system is not always to punish the offender in order to prevent reoffending. Many times, however, courts focus on rehabilitating the criminal defendant as a means to prevent reoffending. The California criminal courts have had various diversion programs that have been used as a tool to help rehabilitate such individuals.

Diversion programs are implemented either before a person pleads to a criminal charge or after the plea. If the person successfully completes counselling (or other court requirements), the court will dismiss the charges against the defendant. The courts are satisfied that the defendant is taking steps to improve his/her life and the defendant learns skills to avoid reoffending.

Typically such programs have been offered to certain special classes of individuals who commit certain types of offenses: these special classes include people who receive the assistance of the Regional Centers for learning disabilities. It also has been applied to individuals with mental health disorders. Later, laws were enacted to divert nonviolent drug offenders with relatively clean criminal records. Military veterans have never been considered a special class. And, DUIs have never been a special classification of offense for purposes of diversion. In fact, DUIs have been singled out as an offense that cannot be diverted as was recently held by the Second District of the California Courts of Appeal (San Diego).

The law historically applied to people who were born with certain mental developmental limitations who needed structure and supervision to deter reoffending. The law later realized that people could develop mental limitations that could be addressed with counselling to prevent reoffending. The legislature later realized that addiction is an illness that should first be treated through drug counselling instead of punishment. Over the years the legal system refused to apply a similar analysis to our active military and veterans. There was no special category for them. They weren’t born with limitations and Military screening ensured that they did not enter the military with mental health issues. Additionally, active military and veterans were treated like any other individual for drug diversion.

Finally the law is beginning to recognize and acknowledge that many active military and veterans should be treated as a special class of offenders. Special diversion programs were enacted by the legislation to make active military and veterans suffering from service related traumas, including Post Traumatic Stress Disorder (PTSD) and sexual related traumas to have their offenses diverted. (It should be noted that both PTSD and sexual related traumas have historically been refuted as a basis for any mitigation of criminal sentencing.) Recently, the Second District of the California Courts of Appeal (Los Angeles) has held that diversion is available for active military and veterans who are charged with DUI.

In conclusion, the criminal courts are finally treating our veterans as a special class of criminal offender in order to rehabilitate them instead of punishing them. Hopefully the California Supreme Court will make it clear that our active military and veterans should be able to benefit from diversion for DUIs.

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