Active Duty Military and Veterans
At MCD, our attorneys are former officers in the U.S. Navy’s Judge Advocates General Corps. (JAG Corps). We understand the unique challenges military personnel face. There can be serious collateral consequences for your career. We know how to work with prosecutors, the court, and your command to get your life back on track.
Active Duty Military Service Members May be Discharged from Military Service as a result of a federal law known as the Lautenberg Amendment
||Under the Lautenberg Amendment, any person who commits a crime of domestic violence loses his right to possess, use, own or transport any kind of firearms. The Lautenberg Amended the Gun Control Act of 1968 to include military service members from using, owning or possessing any firearms.
|The Lautenberg Amendment disqualifies a service member from serving in the armed forces.
||Active Duty military service members are likely to be administratively discharged with an other than honorable discharge, because, without firearms capabilities, the armed forces do not consider them worldwide deployable.
|The Lautenberg Amendment does not apply to veterans of the armed forces
||The Lautenberg Amendment does not apply to veterans of armed forces, because they are no longer on active duty.
|Restraining or Protective Orders in Domestic Violence Cases
||A restraining or protective order issued by a California Superior Court in a domestic violence case prohibits the service member from owning, using or possessing firearms. As a result of being disqualified from owning, using or possessing firearms, the service member may be administratively discharged from his or her armed branch of service.
New Pre-Trial Misdemeanor Diversion Law (Penal Code section 1001.80)
The new Pre-Trial Misdemeanor Diversion Law will qualify active duty military service members and veterans of the armed forces for dismissal of their misdemeanor cases and the removal of their arrest records.
Under the new pre-trial misdemeanor diversion law (Penal Code section 1001.80), an active duty service member or veteran of an armed branch of military service may qualify for dismissal of the misdemeanor charges and removal of the arrest record upon which the charges were based. This essentially means that the service member or veteran will have a clean record under the new law as long as he or she meets certain criteria.
To qualify for the Pre-Trial Misdemeanor Diversion Program, the following qualifications must be met:
- You must be either an active duty military service member for any branch of the armed forces or a veteran of any branch of the armed forces.
- You must be suffering from one or more of the following documented medical conditions:
|Post Traumatic Stress Disorder
|Traumatic Brain Injury
|Substance Abuse Dependency
|Any Verified Mental Health Problem as diagnosed by a licensed mental health professional.
3. Your qualifying condition must be related to your military service.
This does not mean that you had to have served in combat or in overseas deployment. “Military Service” could be during peacetime or while there is an armed conflict or war. For example, a seaman (0-1) who works in a supply or personnel division during peacetime on one of the shore commands qualifies for Pre-Trial Misdemeanor Diversion as long as their medical condition arose during the period of and as a result of his or her military service.
Please consult with us, today, to see if you may qualify for the diversion program, even if you are just in the process of enlisting or joining the U.S. Military. Our expert lawyers may be able to argue that there is a sufficient connection between your enlistment in the armed forces and the development of a qualifying mental health disorder. Our lawyers will work with your recruiter to help ensure that your efforts to join the military are not disrupted by an existing misdemeanor case. Call us, today, for a free confidential consultation!
Here’s what you have to produce when applying for the Pre-Trial Misdemeanor Diversion Program:
a) A military identification card or DD-214 (for veterans to prove their period of military service)
b) Documented proof that you suffer from one of the medical or psychological conditions described above. This means you must have a medical record or some documentation that diagnoses you as suffering from one of the qualifying medical or psychological conditions. The diagnosis must have been made by a licensed mental health professional such as a psychiatrist, psychologist, marriage and family therapist, or clinical social worker in the case of mental health disorders. If you are suffering from a traumatic brain injury, a licensed medical professional will be the diagnosing medical provider such as a psychiatrist, neurologist or neurosurgeon.
You must be willing to waive your right to a speedy trial in order to qualify for this program. Ordinarily, every citizen has a constitutional right to a speedy trial. This means the prosecution must bring the accused person to trial within a reasonable period of time so that the accused’s right to a fair trial is not prejudiced by the loss of evidence and witnesses. When you agree to participate in the diversion program, you give up this right for a period of two years.
The Court has the authority to place you in a rehabilitation program it deems appropriate and suitable for your medical or psychological condition based on the reports of licensed mental health professionals or other licensed medical providers.
The County of your residence is responsible for providing appropriate treatment resources on to the extent that such resources are available. This means that the San Diego County Mental Health Agency in your county of residence is obligated to provide you with treatment resources as long as they are reasonably available. It appears that the court has the authority to refer you to the Veteran’s Administration or the Military to provide services if the county services are not reasonably available. The court may refer you to a County Veterans service officer for this purpose. It is unclear from the law, whether or not the court would have the authority to refer the service member or veteran to treatment resources provided by the Veteran’s Administration or the United States Military. The law invites substantial litigation about the scope of the court’s authority in referring active duty military and vets to treatment resources outside the county in which the court has jurisdiction.
The Court will require that the treatment provider produce progress reports to the court every six months during the two year diversion period.
If the Court, based upon the progress reports, believes that you are participating unsatisfactorily in the program or you are not benefiting from the program’s services, it may order that the original criminal charges be reinstated and that the prosecution of those charges shall continue until your case is resolved by plea bargain or trial.
Before the court can order reinstatement of your criminal charges, you must be afforded a hearing in court to dispute the program’s recommendations. At MyCriminalDefense, our lawyers may hire experts to fight termination of the program.
So please contact our law firm immediately to schedule a consultation, so we can begin to prepare a defense that will keep you in the diversion program. Call us today for a free confidential consultation!
In addition to County treatment resources, the court has the authority to refer the service member to the United States Veteran’s Administration for additional treatment resources. Again, the law is unclear whether or not the court also has the authority to refer to the active duty service member to similar programs offered by U.S. Military hospitals or clinics.
At the end of the treatment program, if the court finds that you have satisfactorily completed the Pre-Trial Misdemeanor Diversion Program, it will immediately dismiss all charges and order the California Department of Justice to purge its records of the arrest upon which the charges were based. This means that you will have an absolutely clean record.
At My Criminal Defense, our attorneys are former officers in the U.S. Navy’s Judge Advocates General Corps. (JAG Corps). These experienced attorneys will be equipped to vigorously defend you if your eligibility to continue in the diversion program has been threatened with termination. Please contact My Criminal Defense, today, to schedule a free confidential consultation!
ONE FINAL NOTE: PLEASE DO NOT GO TO COURT BY YOURSELF IN TRYING TO GET INTO THE NEW PRE-TRIAL MISDEMEANOR DIVERSION PROGRAM. THERE ARE TOO MANY UNCERTAIN ELIGIBILITY QUESTIONS FOR A VET OR ACTIVE DUTY MILITARY MEMBER TO APPLY FOR THE PROGRAM WITHOUT THE EXPERT ASSISTANCE OF LEGAL COUNSEL. PLEASE CONTACT MYCRIMINALDEFENSE, TODAY, TO MAKE AN APPOINTMENT FOR A FREE CONFIDENTIAL CONSULTATION. CALL US, TODAY!
Military Defense Attorney San Diego
Attorney Stephen Brodsky is a former United States Navy Judge Advocates General (JAG) Officer who provides legal defense services for active duty military service members in the following areas:
There are three types of courts-martial under the Uniform Code of Military Justice:
- General Courts-Martial
- Special Courts-Martial
- Summary Courts-Martial
Offenses Under the Uniform Code of Military Justice