California Penal Code section 1170.9 authorizes California courts to remove convictions and arrests from the criminal records of military service members and veterans.  If you are an active duty service member or a veteran who has been convicted by a plea bargain or a trial in which a jury returned a guilty verdict, you can avoid imprisonment and a criminal record if you committed the crime because of a serious mental health condition which arose from your military service. Here are the steps that you must follow to keep your record clean:

  • Your attorney must request that the court order a mental health evaluation determine if you suffer from Post-Traumatic Stress Disorder or some other serious mental health problem.
  • The mental health problem arose during your military service.
  • You must successfully complete a treatment program recommended by the mental health professional appointed by the court to evaluate you.

If you successfully complete the court-ordered treatment program and comply with all other terms and conditions of probation, the court may then order that your conviction be set aside and also order the California Department of Justice to seal your arrest. 

Before the court orders the rehabilitation of your criminal record, it must consider the following factors:

  • You are in substantial compliance with the terms and conditions of your probation;
  • You do not represent a danger to others.
  • You have demonstrated significant benefit from the court-ordered treatment to clearly show that rehabilitation of your criminal record would be in the interests of justice.
  • Your progress in formal education.
  • The development of your career potential.
  • Your leadership potential and acceptance of personal responsibility for your actions.
  • Your commitment to the welfare of your community by showing some evidence of community service.

If you fulfill all of these factors, the court may, in the interests of justice, grant you the following relief: 

  • Deem satisfied all terms and conditions of your probation.
  • Reduce any felony to a misdemeanor, if applicable in your case.
  • Dismiss all charges of which you were convicted.
  • An order that you can represent to all future employers or organizations, that you were never arrested for the charge of which you were convicted, except if applying for employment as a peace officer or firefighter.
  • Order the California Department of Justice to seal the arrest upon which the conviction was based.

The dismissal of charges and sealing of your arrest record does not completely wipe out

evidence of the underlying incident that gave rise to the charges of which you were convicted. Here are the limitations:

  • Your DNA profile in the government’s DNA database will remain unchanged.
  • If convicted of a felony, the dismissal of that felony will not reinstate your former right to own, possess, or control any firearm or prevent you from being convicted of certain weapons offenses which are triggered by a felony conviction.
  • Any restriction, revocation or suspension of your driving privileges by the California DMV as a result of a DUI conviction will not be removed by successful completion of the treatment program under Penal Code section 1170.9.


       California Penal Code section 1170.9 rehabilitates your criminal record so that you no longer have a conviction or arrest record.  This law is not the same as Pretrial Military Diversion under California Penal Code section 1001.80.

        Pretrial Military Diversion means that you will not even be prosecuted for the charges which were originally filed against you.  The arrest upon which the charges were based is deemed to have never occurred.  You may deny to anyone that you were ever arrested and charged with a crime, except on applications for employment as a police officer. 

        Even in cases of Pretrial Military Diversion, any restriction, revocation or suspension of your driving privileges will remain unaffected by successful completion of the military diversion program.

        A big difference between these two laws is that California Penal Code section 1170.9 applies to misdemeanors and felonies whereas California Penal Code section 1001.80 applies only to misdemeanors (or felonies later reduced to misdemeanors).


Regardless of whether your military client is eligible for Pretrial Military Diversion or Post-Plea Record Rehabilitation, as legal counsel, it is imperative that you always consult the client’s military command before counseling the client to participate in either of these programs. 

If the client’s military command intends to prosecute the client at a military court-martial or initiate administrative separation proceedings, you will want to carefully evaluate the strength of your client’s defense and determine your client’s chances of an acquittal at trial. If the client has a good trial defense, his or her legal interests may be best served by taking the case to trial.  If successful, a not guilty verdict, especially if followed by a finding of factual innocence, will help your client avoid military discipline or administrative separation.

   Most commands would not pursue military discipline or administrative separation if a military client is acquitted after a jury trial. However, a discretionary dismissal of charges by the prosecuting authority may not deter a military command from pursuing disciplinary or administrative sanctions against a military client. 

This is especially important with respect to senior military non-commissioned and commissioned officers who following a career path in the military. A loss of career as a result of bad advice may result in the loss of retirement funds and other lifetime benefits.

Always consider whether or not the advice you give your client will have an adverse impact on your client’s eligibility for benefits from the Veteran’s Administration or under the GI Bill. These benefits are very substantial, and the loss of benefits as a result of poor legal advice may result from subject you to a state bar complaint or a civil lawsuit by your client.


If you have any doubts about what advice to give your military client regarding participation in California Penal Code section 1170.9 or 1001.80, always seek a consultation with a senior JAG Corps. Officer in your client’s branch of service. This will go a long way to educating you on military policies and procedures and will help you when representing military service members and veterans in the future.

If and when you need a former military JAG attorney in San Diego to defend your rights you contact us