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By Rains, Lucia, Stern, St. Phalle & Silver | November 3, 2026 | Posted in PORAC LDF News

Diversion for Deputies

STEVEN ALVARADO
Senior Associate
Rains Lucia Stern St. Phalle & Silver, PC

When Your Badge Is the #1 Obstacle to Getting the Help You Need

“We object, your honor. The defendant is a police officer and should know better…”

This is an all-too-common argument I hear from prosecutors while defending cops in criminal courtrooms in the state of California, especially on requests for diversion. Diversion statutes allow a criminal defendant to petition a court to have their case dismissed entirely after they meet certain requirements and milestones. These diversion statutes, when applied properly, can be an extremely valuable outlet for criminally charged law enforcement officers to help avoid the terrible consequences of a conviction. Diversion is supposed to ponder the question whether prosecution is necessary in any given case — not whether a defendant’s profession makes diversion politically uncomfortable for a prosecutor or judge.

The Applicable Law

The three California Penal Code diversion statutes I have found to be the most applicable to my law enforcement clients are mental health, military and judicial diversion. Let’s take a look at each:

Mental Health Diversion — Penal Code §1001.36: Defendants who suffer from a qualifying mental health condition (PTSD, depression, anxiety, etc.) may petition the court to divert their felony or misdemeanor proceedings before conviction, subject to additional eligibility and suitability requirements.1 Most crimes qualify, although there are some specific enumerated violations that are disqualified. The defendant’s mental disorder must have been a significant factor in the commission of the charged offense in order for them to qualify. For cops in particular, the job itself can often generate the evidence supporting the motion, given the extremely dangerous and stressful conditions of the daily grind. Those stressors often manifest in mental health conditions that necessitate treatment. Mental health issues, left untreated, can manifest in irregular behavior. Imagine the following progression: Multiple officer-involved shootings, PTSD left undiagnosed and untreated, alleged criminal conduct ensues that may be related, in part, to the client’s underlying condition.

In July 2026, the Judicial Council of California published a report on statistics they collected regarding mental health diversion motions within the state. According to the published report, from 2019 to 2025 a total of 26,392 motions were granted and of those, 13,790 were for felonies.2 Clearly, these motions are a powerful tool an attorney representing a peace officer must have in their bag and deploy when applicable.

I was once able to secure mental health diversion for a law enforcement client charged with a violent felony after he allegedly assaulted a man who nearly struck his dog with a vehicle while they were out for a walk. Although he was facing very serious charges, the motion was supported by strong mitigating evidence and a documented history of PTSD stemming from multiple events of on-duty trauma.3 Among those events was a traumatic incident where he responded to a call regarding gang members shooting into a home. When the client arrived on scene, he encountered a bleeding pregnant woman falling down the stairs. Once he entered the home, he tragically discovered a deceased 5-year-old who had succumbed to gunshot wounds — a call that never really left his mind. The PTSD was never adequately addressed or treated.

In the motion for diversion, we were able to clearly demonstrate, through expert opinion, a meaningful connection between the on-duty trauma, his mental health condition and the underlying circumstances of his criminal case. Despite strenuous prosecutorial objection, the court properly granted diversion and the criminal case was ultimately dismissed in its entirety.

Military Diversion — Penal Code §1001.80: Military diversion is another common avenue available to law enforcement clients who previously served in any branch of the military. Similar to mental health diversion, criminal defendants with prior military service who may suffer from mental health or substance abuse issues as a result of their service may petition the court to divert their case, subject to requirements and treatment plans. The statute is available to both felony and misdemeanor offenders, although there is a distinction as to which party bears the burden of proving the nexus between the condition and the charged conduct.4

I have had great success pursuing military diversion for my clients, particularly in driving-under-the-influence cases. Clients with prior military service, particularly those who have seen combat, show a higher prevalence of substance abuse issues related to their service trauma. I once had a motion granted for a client who was on his second driving-under-the-influence case just a few years removed from his first conviction. We were successful because we were armed with supporting expert medical opinion, documented substance abuse issues in the past and declarations showing service connectivity. The client also proved himself worthy and suitable of diversion through his ties to the community, awards and accolades, and most importantly, a strong willingness and desire to pursue treatment and sobriety.

Judicial Diversion — Penal Code §1001.95: The judicial diversion statute was enacted in 2021 and gives the court the ability to place criminal misdemeanor alleged offenders into a diversion program, even over the objection of the charging prosecutor, which ultimately results in the dismissal of the case. The statute was created with the intent to provide a second chance for suitable alleged offenders, but also to increase judicial economy.5 Most misdemeanor crimes qualify, except for DUIs, domestic violence and sex offender cases. In my experience, this statute is the most commonly used and most hotly contested motion in defending law enforcement clients.

With these cases, prosecution opposition matters, but it is not necessarily dispositive to a well-crafted motion. Ultimately, the judge holds all of the decision-making power, whether the prosecutor objects or not.

Why Cops Often Face Prosecutorial Resistance to Diversion

Why do prosecutors so often strenuously object to law enforcement defendants’ diversion motions? All too frequently, prosecutorial objection appears to rest almost entirely upon the client’s profession. I concede there is some merit to the argument that a peace officer’s profession and position of trust can be a relevant factor of contemplation for a court. But a defendant’s profession should be a consideration, not a presumed fatal nail in the coffin.

Remember, the badge cuts both ways. A police officer is often the picture book of suitability for a diversion program: no prior criminal history, years of public service, strong ties to the local community, stable employment and facing significant collateral consequences from a criminal conviction. A court and prosecutor must be made aware that, just because a diversion motion is granted, our clients are not walking away consequence-free. There absolutely will be an ensuing administrative investigation, potential POST issues, financial strain and varying levels of employment-related punishment if policy violations are sustained. These collateral consequences are highly relevant considerations for the court when determining the necessity for further criminal prosecution and whether the client is suitable for case diversion.

A Word to Officers: Get Help at First Sight of Issues — Don’t Wait

For law enforcement officers, perhaps the most important lesson I am hoping to impart in this article is not that diversion programs exist, but rather, that these issues should be addressed before you are ever in a criminal courtroom on the wrong side of the table. The stigma once associated with seeking mental health treatment in law enforcement has dissipated greatly. It is now widely recognized that your profession comes with unique stressors and burdens because we, as a society, have learned more about the cumulative effects of trauma, critical incidents and force encounters.

Do not wait for an internal affairs notice or a criminal filing to start taking your mental health seriously. If you’ve served in the military, use your VA benefits to deal with your mental health issues related to your service and be sure to follow up with regular treatment. If you have trauma after dealing with critical incidents or the grind of the job, or both, use your insurance and department resources to get help, talk and document. Do not seek treatment because it might someday help a future case. Do it because you need it. When treatment begins before a crisis occurs, these records tell an authentic story that is far more compelling to a court than one reconstructed only after criminal charges are filed.

A Word to Practitioners: Start Building Your Case for Diversion Early

For practitioners, diversion feasibility and suitability of your client should begin at intake, not after plea negotiations go awry or post-preliminary bind over. Ask every single client about prior military service, combat deployments, critical-incident experience, workers’ compensation claims, diagnosed mental health conditions, therapy and substance abuse history, and personal/occupational stressors.

And always remember, a grant of diversion is a great start, but it is not a “get out of jail free” card for all facets of your client’s life. The criminal case may eventually be dismissed, but a practitioner must balance other considerations such as firearm restrictions, restraining orders, Senate Bill 2 and the inevitable ensuing administrative investigation with the client’s department.

Concluding Remarks

The takeaway from these cases is not that I advocate for a law enforcement officer to get special treatment. I merely demand they receive the same individualized consideration the California Legislature built into the statutes, a true weighing of eligibility and suitability given the totality of the evidence before any given court. The facts and evidence are what the court is supposed to look at in support of diversion, not politics. A prosecutorial objection — simply because you wear a badge — does not disqualify you, and although I would love it if we did not face that resistance, I have to admit, overcoming this double standard and seeing my clients get a second chance is pretty sweet.

About the Author

Steven A. Alvarado is a senior associate and trial attorney in the RLS Legal Defense Practice Group. He represents peace officers in criminal investigations and prosecutions, administrative investigations and disciplinary appeals, and also responds to critical incidents. Rains Lucia Stern St. Phalle & Silver has assembled an elite group of trial attorneys, litigators, experts and investigators to defend peace officers in criminal and administrative cases.

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