Yes, you can be eligible again. Since January 1, 2018, Penal Code section 1000 has not included a past grant of diversion among its eligibility conditions, so completing diversion before does not, by itself, rule you out. You still have to meet the four current eligibility conditions on the new charge, and the court still decides whether to grant diversion.

Why older answers say no

Before 2018, PC 1000 was a deferred entry of judgment program that began with a guilty plea. According to the Legislative Counsel’s Digest for Assembly Bill 208 (2017), it excluded anyone whose record showed the person “has been granted diversion, deferred entry of judgment, or was convicted of a felony within 5 years” before the new offense. AB 208 converted the program to pretrial diversion, which begins with a not guilty plea, and the current conditions no longer mention an earlier diversion. If you read that a second diversion is barred for five years, that describes the old law.

Why a finished diversion is not a prior conviction

The current statute answers this directly. Under Penal Code section 1000.1(d), participating in pretrial diversion “shall not constitute a conviction or an admission of guilt for any purpose.” Completing the program ends the case: “If the defendant has completed pretrial diversion, at the end of that period, the criminal charge or charges shall be dismissed” (Penal Code section 1000.3(d)). And under Penal Code section 1000.4(a), “the arrest upon which the defendant was diverted shall be deemed to have never occurred.”

If your earlier case was a pre-2018 deferred entry of judgment, it started with a guilty plea, but completing that program also ended with the charges dismissed, according to the AB 208 digest. Bring the dismissal paperwork either way.

Do not assume the earlier case is invisible. Section 1000.4(d) says an order sealing the arrest record does not affect a criminal justice agency’s ability to access and use it, so the prosecutor may well know about your earlier diversion.

The four conditions the prosecutor checks on the new charge

Each time a qualifying charge comes up, the prosecutor reviews the file under Penal Code section 1000(a). Two conditions look back five years from the date of the alleged new offense: you must have no conviction in that window for a drug offense other than the qualifying offenses the statute lists, and no felony conviction of any kind. The other two concern the new case itself: the offense cannot have involved violence or threatened violence, and there can be no evidence of a contemporaneous narcotics or restricted-drug violation other than a qualifying offense.

What could still count against you

A dismissed diversion case is not a conviction, but other things can still block eligibility:

  • A conviction for a drug offense that is not on the statute’s qualifying list, within the five years before the new offense.
  • A felony conviction of any kind within those five years, whether or not it involved drugs.
  • A new charge that involved violence or a threat of violence, or evidence of a separate, contemporaneous drug violation beyond the qualifying offenses.

A prior conviction for one of the qualifying offenses themselves, such as misdemeanor simple possession, is excluded from the drug-conviction condition, though any felony conviction still counts under the fourth condition.

How the decision is made

The prosecutor states the grounds for an eligible or ineligible finding in a written declaration or on the record, and shares them with you and your lawyer (Penal Code section 1000(b)). If the finding is ineligible, the statute makes a postconviction appeal your sole remedy, which means the finding cannot be appealed until after a conviction.

Being eligible is not the same as being granted diversion. The court decides at a hearing whether diversion should be granted (Penal Code section 1000.2(a)). If the court directs a probation investigation, the factors include your prior controlled substance use and treatment history (Penal Code section 1000.1(b)). An earlier diversion does not disqualify you, but it is part of that history, and no grant is automatic.

Getting ready to raise this

  • Pull the paperwork from your earlier case: the dismissal order and any record showing you completed the program.
  • Check for any conviction in the five years before the new offense date, drug-related or otherwise.
  • Raise your PC 1000 history with your lawyer before any plea on the new charge; the prosecutor’s review is meant to let the court set the diversion hearing at arraignment.
  • Ask about other routes if this charge or your record does not fit PC 1000.

The firm’s PC 1000 drug diversion page covers the program more generally, and the firm’s drug diversion programs page surveys other diversion routes.

If you completed diversion before and are now facing a new drug charge, the Law Offices of David S. Chesley can review both cases and your eligibility under the current statute. Call (800) 755-5174 to discuss your situation.