Fact: Every person probably has an identifiable “mental health condition” that will potentially keep them from getting convicted of a crime. Conservatively, anywhere from 15-31% of defendants have an identifiable mental illness. California law recognizes that mental health issues could play a role in criminal behavior, so the state created a program to keep those defendants out of jail.
Mental health diversion can both prevent you from going to jail and prevent you from having to go to trial, which is often the most expensive part of the case.
Mental health diversion for a mental disorder is a program that sends a person into a court-ordered treatment program instead of prosecuting them for the crime in the normal way. Even some serious felonies may qualify for these programs.
Mental health diversion can be a very desirable case outcome.
• It avoids jail time.
• It prevents you from obtaining a criminal record.
• It often avoids probation as well.
• It allows you to avoid a long, expensive trial.
• It returns you to your home and life much faster than other programs.
A mental health diagnosis is not enough to guarantee placement into the program. Your attorney must work with an expert to identify potential mental health conditions and then litigate your case in court. The Court determines whether you will be granted a mental health diversion and what treatment will be appropriate.
Mental health diversion allows you to complete a treatment program in exchange for having your case dismissed and your records sealed. Before January 1, 2023, your attorney would have had to show that your mental condition significantly contributed to the crime.
Beginning on January 1, 2023, most people charged with crimes are now potentially eligible for mental health diversion. While mental health diversion has existed in California since 2018, the latest law expanded the program to make most people eligible for it if they have a “mental health condition.”
The new law presumes that if you are diagnosed with any mental condition in the Diagnostics and Statistical Manual Fifth Edition (DSM 5), then the mental condition is “presumed” to have affected the crime and that you are suitable for diversion unless a prosecutor can prove otherwise. The DSM is the standard classification of mental disorders that health professionals use in the United States to diagnose and treat conditions.
Under California law, you do not have to receive this diagnosis from a psychologist or psychiatrist. You may receive a diagnosis from a case worker or social worker and you can receive it after the fact.
If a psychologist, psychiatrist, case worker, or social worker diagnoses you with any condition in the DSM 5, you are automatically eligible for diversion unless the DA can prove otherwise.
After you successfully complete a mental health diversion program, your case is dismissed, and the record gets sealed. Read about other ways to get your record sealed.
Here are a few of the misconceptions we encounter.
Myth #1: To qualify, you must have a serious mental health condition.
You need not be diagnosed with a serious condition like bipolar or schizophrenia to qualify. Conditions many people believe are “mild” or “common” also technically qualify, including:
• Mild depression
• Alcoholism
• Drug use
• Conduct disorders
• ADHD
• Intellectual delays
• Autism
• Intermittent explosive disorder
• Restless leg syndrome
• Insomnia
• Gambling disorders
• Kleptomania
• Pyromania
Depending on your specific situation, even stuttering or intoxication could qualify. You should check with your lawyer to discuss your specific circumstances.
Myth #2: I have to show this condition impacted the crime.
The new law now presumes that your mental health condition impacted the crime unless the prosecutors can prove otherwise.
Myth #3: I need a diagnosis from a doctor.
You may get a diagnosis from a psychologist, psychiatrist, case worker, or social worker.
Nevertheless, we recommend getting a diagnosis from a psychologist or psychiatrist because a doctor’s diagnosis will strengthen your case.
Myth #4: I’ll be forced into an inpatient facility.
Many people fear being forced into an inpatient facility because being forced into such a facility could mean the loss of a job, freedom, reputation, or all three.
Fortunately, the law allows the judge much discretion when ordering treatment. Judges assign simple counseling sessions to many defendants.
What will happen in your case? It will depend on the facts of your case and how well your lawyer argues on your behalf.
Myth #5: I’ll be forced to undergo lifelong treatment.
There are limits on the length of treatment that a court may order. If you’ve been charged with a felony, the limit is two years. The limit is one year if you’ve been charged with a misdemeanor.
The new law now presumes that your properly diagnosed mental health condition impacted the crime unless the prosecutors can prove otherwise.
If the DA wants to prove otherwise, they will have to provide evidence that your mental health did not affect the crime you’ve been charged with in any way.
In the legal sense, yes. Many people probably do qualify. According to Johns Hopkins Medicine, an estimated 26% of Americans ages 18 and older suffer from a diagnosable mental disorder in a given year. Those are just illnesses that get identified and reported. The truth is many people suffer from some form of mental illness.
Nevertheless, you’ll need a lawyer’s help if you want to secure mental health diversion. “Qualifying” for diversion means only that it might be an option for you. It doesn’t mean you’ll get it, even if you meet eligibility criteria under the law. Ultimately, it’s up to the court to say yes or no and the court has “discretion” to decide either way. Your lawyer can use the facts and the law to help make that positive answer more likely.
These are only examples. Every case is different; not everyone would be allowed a diversion in similar situations. That’s up to the court. Nevertheless, we can provide a few hypotheticals.
Hypothetical #1
A man with insomnia gets into an argument with his wife. Exhausted from sleep deprivation (insomnia), he hits her. His defense attorney gathers evidence and successfully litigates the motion. Instead of receiving a conviction and jail time for domestic violence, he receives mental health diversion. He goes into therapy once a week for two years. Once he completes therapy, the case is dismissed, and the record is sealed.
Hypothetical #2
A person is drinking at a bar. They get into a fight and break another person’s arm. They potentially qualify for mental health diversion under a diagnosis of alcohol intoxication. Their defense attorney gathers evidence and successfully litigates the motion. After they successfully complete anger management for two years, the case is dismissed, and the record gets sealed.
Hypothetical #3
A woman with a gambling disorder steals several thousand dollars from her employer over a four-year period. Gambling disorder is a mental health condition that qualifies them for diversion. Her defense attorney gathers evidence and successfully litigates the motion. The court diverts her and requires her to complete two years of weekly Gambler’s Anonymous meetings. Once she does, the case gets dismissed, and the record gets sealed.
Taking advantage of mental health diversion programs comes with many benefits.
1. You avoid jail time.
2. You avoid a criminal record.
3. You avoid the trial, which is the most expensive part of most cases.
4. You receive treatment for your mental health conditions, often specifically tailored to your needs.
5. You improve personal and social functioning.
6. You are less likely to get in trouble again.
7. The courts dismiss charges after you successfully complete your mental health diversion.
8. You are not locked into mental health diversion until you consent to the treatment plan that the judge orders. If you don’t want to do the treatment the judge ordered, you can decline the treatment and go through the criminal proceedings without mental health diversion.
9. You can change your mind anytime during the treatment and re-enter criminal proceedings.
10. Your record is sealed if you successfully complete diversion, protecting your privacy.
As good as these programs are, they also carry a few disadvantages.
1. It can take several weeks or months to resolve a mental health diversion. You could wait longer to resolve your case than you would have waited without the diversion.
2. The facts of your mental health condition would have to be discussed in open court. This means there will be a record and a transcript. Although transcripts aren’t generally published on the Internet, it’s possible an interested party could find the record, order the transcript, or even attend the hearing.
3. There are additional costs for your lawyer to write up the motion for mental health diversion. If it’s successful, it ends your case and prevents you from going to jail or going to trial. If it’s unsuccessful, you’ll still have to pay those costs.
The cost of mental health diversion generally involves the expenses for 1) the motion, 2) the expert evaluation, and 3) the legal representation. The total cost depends on how complex your case is and your mental health conditions.
• For a misdemeanor you could pay as much as $5000 for the motion and $2000 to $6000 for the expert. This is on top of the fees you will pay for representation, which depends on the details of your case.
• For a felony: you could pay as much as $10,000 for the motion and $2000 or $6000 for the expert. This is on top of the fees you will pay for representation, which depends on the details of your case.
Some lawyers include the cost of the mental health diversion motion in one overall fee, while others will bill it separately.
More about the 3 fees:
Motion: when your lawyer puts together the mental health diversion motion for you, it includes research, drafting, and persuasive arguments in court over multiple hearings.
Expert: the expert fee pays a mental health professional to evaluate you for any mental health conditions to provide the DSM 5 diagnosis.
Representation: the cost of representation can vary widely. See our post on how much a DUI lawyer costs in California to get an idea about DUIs.
Although mental health diversion is an additional expense to representation, successful mental health diversion still costs far less than a jury trial.
It’s possible. Your condition will be discussed in open court.
On one hand, it’s unlikely a potential employer or romantic partner will uncover the transcript with a casual Google search if the case is not “high profile.” Also, upon successful completion of diversion, if the court dismisses the charges, the arrest is “deemed never to have occurred, and the court shall order access to the record of the arrest restricted”
Conversely, the information is out there and is a matter of public record. A truly determined person could find it if they were digging deep enough. However, people can be penalized if they hold this against you. Under the law, any record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of your application for or participation in diversion, shall not, without your consent, “be used in any way that could result in the denial of any employment, benefit, license, or certificate.”
The question is whether or not it matters. There is far less stigma about mental health than there was in the past, and a potential employer may not usually discriminate against you for your mental health issues without invoking a lawsuit. Having a mental illness is nothing to be ashamed of and is far less likely to destroy your life than having a criminal conviction and going to jail.
Your attorney raises the issue of a mental health diversion by submitting a written motion supported by evidence and an expert review of your circumstances. The motion is argued at a hearing where evidence may or may not be taken. An experienced attorney will present the facts and arguments effectively at this hearing to maximize your chances of success.
No. If you are representing yourself in your criminal case, you can bring your own motion for mental health diversion. If you are represented by a lawyer, that lawyer must bring the motion.
You always have the option to represent yourself in criminal procedures. This is called pro per representation. However, it’s almost always a mistake. When you represent yourself pro per, the judge can’t help you, and the court staff can’t help you. They must treat you exactly the same way they’d treat a trained lawyer.
Most people wouldn’t wire their own electrical panel for fear of electrocuting themselves. Trying to apply for mental health diversion on your own is a similar situation. The mental health diversion motion needs to be consistent with an effective defense strategy and not undermine the rest of your defense. Finally, the law is unclear as to whether or not you can go back and argue the same motion again if you fail the first time, but chances are the judge won’t be sympathetic.
Get it done right the first time. Get a lawyer. This is your life, and this might be your one chance to stay out of jail.
A good lawyer will start by finding a capable, experienced expert to perform a mental health evaluation using multiple sources of evidence. While, technically, you do not require a psychologist or psychiatrist to do this motion, we think bringing in one of these experienced professionals will be best for your case. You only have one shot to get your mental diversion motion right, so working with the best providers is key.
Next, we ask the expert to write a detailed report to support any diagnosis. We, of course, are looking for providers who will only offer an evidence-based conclusion supported by robust analysis. The stronger the report, the stronger your case. The report should also offer insight into whether you’re suitable for treatment and recommend the treatment that will be most helpful in your case.
Your attorney will then review the report with you and discuss options and the best arguments to offer. After that, the attorney will put those arguments into a detailed, written motion for mental health diversion for the court’s consideration.
You should assume you’ll pay for any court-ordered mental health treatments. However, in some cases, you may be eligible for publicly funded free mental health treatments. The courts generally don’t care who pays if you finish your treatment plan. The court just isn’t going to cover the costs for you.
Treatment plans may take many forms, including inpatient treatment, individual counseling sessions, or group counseling sessions. Obviously, some of these treatments cost more than others. You should discuss what you can afford with your attorney, as paying for these services or finding a free public option is part of completing your diversion successfully. The court, if it grants diversion, will ultimately decide what form your treatment will take.
The maximum period of time for diversion is up to one year for misdemeanors and up to two years for felonies. The court may ask for less time, but they can’t legally exceed these maximums.
A skilled attorney can help ensure you have the right treatment for you, including an appropriate treatment length for the issue you are facing.
First, understand that “qualify” is a legal term. Qualification is not an automatic diversion. It merely allows you to present your case to the court and allow them to decide.
Nevertheless, these are the general requirements that you’ll have to meet before an attorney will issue a motion for mental health diversion on your behalf.
1. The crime may be a misdemeanor or felony, but you will not be eligible for mental health diversion if you’ve been charged with rape, murder, or any sexual offense requiring sex offender registration.
2. You must have a mental health diagnosis covered by the DSM5, excluding borderline personality disorder, anti-social personality disorder, and pedophilia. If you are diagnosed with one of these things you may still be eligible for diversion if you also have a different, qualifying condition (many people have more than one mental health condition).
3. You are capable of responding to treatment.
4. You consent to diversion and treatment.
5. You waive your right to a speedy trial.
6. You don’t pose an unreasonable risk of danger to others.
You may be eligible for diversion if you were charged with a misdemeanor or felony offense, excluding rape, murder, or sexual offenses requiring sex offender registration.
In addition, your diagnosis must not be borderline personality disorder, anti-social personality disorder, or pedophilia.
You will not be eligible if the charge was:
• Rape
• Murder
• Sex offenses requiring sex offender registration
In addition, certain mental health conditions are excluded in California, including:
• Anti-social personality disorder
• Borderline personality disorder
• Pedophilia
If you don’t follow your treatment plan, or under certain circumstances, if you commit new crimes, diversion may be canceled. The court is not required to cancel the diversion under most circumstances, particularly if the reason for the failure is related to your mental condition. If canceled, you’ll re-enter the criminal trial process and be forced to defend your case.
Follow the directions of the court for your treatment during the diversion period. Make sure you understand them and follow them to the letter.
While the law offers limited latitude for minor mistakes, every mistake creates a risk that you’ll end up facing jail time instead of completing your treatment plan.
Once you complete the terms of your diversion, the court orders the case dismissed. Your record will be sealed.
You can read our post on military diversion.
Case Studies
Here are some actual mental health diversion cases.
In the 2022 case People v. Whitmill, a court of appeal reversed a trial court’s conclusion that a defendant wasn’t entitled to mental health diversion. The court ordered that the defendant, suffering from PTSD after military service, be granted mental health diversion after negligently discharging a firearm into the air and making criminal threats.
In the 2020 case, People v. Frahs, a defendant stole two beverages from a convenience store and threw rocks at passing cars. At trial, his lawyer introduced evidence to show that he suffered from a form of schizophrenia. Both the appellate court and the Supreme Court of California ruled that Mr. Frahs was entitled to consideration for mental health diversion.
In the 2023 case People v. Shreiber, a woman was charged with animal cruelty from neglect. While the woman’s mental illness remained unspecified, the Kern County Superior Court granted her a mental health diversion, allowing her to see the charges dismissed if she completed the program.
Charged with a crime?
The Cohen Defense Group can help. Whether we attempt to secure a mental health diversion for you or handle your case in another way, you can rest assured that we will explore every avenue for your defense.
Contact us to get help today.