Penal Code 1001.36 is California's mental health diversion law. For a defendant whose mental health condition played a role in the offense, it can lead to treatment instead of prosecution and, ultimately, to a dismissal. I am Joel Brand, and here is how it can apply in a DUI.
What diversion does
Mental health diversion allows a court to pause the criminal proceedings and place an eligible defendant into a treatment program. If the person completes the program successfully, the charges are dismissed and, by operation of law, the arrest is generally treated as though it never occurred. It is a fundamentally different approach from conviction and punishment: the focus is on treating the underlying condition, with dismissal as the reward for completing treatment. For the right defendant, it is one of the most favorable outcomes available in the entire system.
The eligibility requirements
Diversion under this statute is not automatic; the defendant has to qualify. In general terms, the court must be satisfied that the person suffers from a qualifying mental disorder, that the disorder was a significant factor in the commission of the charged offense, that a mental health expert believes the person would respond to treatment, and that the person does not pose an unreasonable risk to public safety if treated in the community. Certain serious offenses are excluded by law. Establishing each of these elements, particularly the link between the disorder and the offense, is the heart of a diversion request.
How it can apply to a DUI
DUI cases present a particular nuance, because driving offenses interact with the Vehicle Code in ways that can complicate diversion, and courts have treated DUI eligibility carefully. That said, where a genuine, documented mental health condition, such as serious depression, anxiety, post-traumatic stress, or bipolar disorder, was a real factor in what happened, diversion can be a legitimate avenue worth pursuing. Whether it is available in a specific DUI depends on the facts, the charges, and the current state of the law, which is why each case needs an individual assessment rather than a blanket answer.
The role of expert evidence
A diversion request rises or falls on the quality of the mental health evidence. The court will want a qualified expert's diagnosis, an opinion connecting the disorder to the offense, and a credible treatment plan. Marshaling that evidence, obtaining the right evaluation and a concrete, realistic plan for treatment, is essential, and it is a significant part of the work in pursuing diversion. A vague or poorly supported request will not succeed; a well-documented one supported by a respected expert has a genuine chance.
Why diversion is so valuable
The advantages are profound. Successful completion means dismissal, not a conviction, which spares the client the entire cascade of DUI consequences and leaves the record clean. Equally important, it addresses the actual underlying problem, giving the person treatment that can prevent future trouble. For a client whose mental health genuinely contributed to the incident, diversion offers both the best legal outcome and a path to real improvement, which is a rare combination in criminal cases.
Diversion is not the only mental-health tool
It is worth distinguishing diversion from other mental-health issues that can arise in a case. Diversion under this statute is about resolving the case through treatment; it is different from the question of a defendant's competence to stand trial under Penal Code 1368, which concerns the present ability to participate in the proceedings. Part of my job is recognizing which mental-health framework actually fits a client's situation and pursuing the one that genuinely applies, whether that is diversion, a competence inquiry, or simply a mitigation argument.
The defense still comes first
Even where diversion is a real possibility, it works best alongside, not instead of, a full defense to the charge. The strength of the underlying case affects the leverage and the options, and in some situations defeating the DUI outright on its merits, the lawfulness of the stop, the reliability of the testing, is the better path. I evaluate diversion as one option among several, pursuing it where it is genuinely the client's best outcome and weighing it honestly against the alternatives.
How these cases resolve
Where diversion is available and granted, the realistic path is completion of treatment followed by dismissal. Where it is not, the mental-health circumstances can still support mitigation at sentencing or inform the overall strategy. Either way, the outcome depends on the strength of the expert evidence and the specifics of the charge, which is why I assess each case individually before recommending a course.
What the treatment program involves
If diversion is granted, the court approves a treatment plan that the defendant must follow, and it is a real commitment rather than a formality. The plan is tailored to the person's diagnosis and may involve regular therapy, psychiatric care and medication management, counseling, and periodic progress reports back to the court. Diversion can last up to a set maximum period, during which the criminal case remains paused while the person engages in treatment. The court monitors progress, and consistent participation is what leads to the dismissal at the end. The flip side is that failing to engage, or picking up a new offense, can result in the diversion being terminated and the original charges being reinstated. I help clients understand the seriousness of the commitment up front, because diversion rewards genuine effort, and going in with a clear picture of what is required is the best way to reach the dismissal it offers.
How it fits the larger defense
Mental health diversion is a treatment-based resolution that complements the merits defense to a DUI, which centers on the lawfulness of the stop and the reliability of the chemical testing. It connects to the separate question of competence under Penal Code 1368. See my top DUI defenses and the defenses guide.
Could mental health diversion fit your case? Let's talk.
Whether diversion is realistic depends on your specific situation, and assessing it honestly is exactly what I do. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.