Can You Get a Second Chance at Diversion After Failing the Program?

 Posted on September 14, 2026 in Criminal Defense

In many cases, you can get a second chance at diversion after falling short of a Califiornia diversion program's requirements. However, it depends heavily on the judge, the county, and the specific reasons you didn’t succeed in the program. Failing to meet every condition perfectly does not necessarily mean that you face a criminal trial.

If you were removed from a criminal diversion program in 2026 because of noncompliance, our Palo Alto, CA criminal defense lawyer can help you understand what options may still be available.

What Does California Law Say About Ending Diversion for Noncompliance?

California has several types of diversion programs. What happens if you do not follow the rules depends on the program you are in. Some common programs include:

• Misdemeanor diversion: Under Cal. Penal Code § 1001.95, if you do not follow the terms of diversion, the court must hold a hearing. The judge may end your diversion and restart your criminal case.

• Drug diversion: Cal. Penal Code § 1000, § 1000.1, § 1000.2, § 1000.3, and § 1000.4 cover diversion for certain drug offenses. If you do not complete treatment or follow the program rules, your criminal case may resume.

• Mental health diversion: Cal. Penal Code § 1001.36 covers diversion for people who qualify based on certain mental health conditions. If you have problems following your treatment plan, the court may change your treatment or restart your criminal case.

• Military and veterans diversion: Cal. Penal Code § 1001.80 covers certain current and former military members charged with misdemeanors and felonies. If you do not perform satisfactorily in the program, the court may end diversion and restart your criminal case.

Not following a diversion requirement does not always mean your program will automatically end. Depending on the type of diversion and what happened, the court may have other options before restarting your criminal case.

Judicial Discretion in Pretrial Diversion Programs 

Diversion programs exist because lawmakers recognized that recovery and behavioral change are rarely a straight line. A missed appointment, a relapse, or disorganized paperwork often reflects the underlying issue the program was designed to address in the first place. It is usually not a decision to abandon the process altogether. Because of this, many judges are willing to look at the reasons behind a setback within a diversion program. 

What Factors Might Convince a California Court to Give You Another Chance in a Pretrial Diversion Program?

Courts weigh several things when deciding whether to continue diversion instead of ending it. Relevant factors typically include how much progress you had already made and whether the noncompliance was a one-time issue or an ongoing pattern. They also look at whether you have taken steps to address whatever caused the problem in the first place.

Showing that you reached out for help, adjusted your treatment plan, or addressed a scheduling conflict can show you are serious about your case and are trying to do the right thing. A person who followed every rule for months before one difficult period is in a very different position compared to someone with a long pattern of missed requirements.

What Happens if a Court Decides to Terminate Diversion in California?

If a court ultimately decides to end diversion, criminal proceedings resume from where they left off. This does not necessarily mean an automatic conviction. You keep your right to a trial and you may be able to negotiate a  plea deal. Any defenses that existed in your original case remain available to you.

What Should You Do Right Away if You Have Missed a Diversion Requirement?

How you respond in the moment can shape whether a court sees a missed requirement as a minor setback or a serious problem. If you’re having problems with your pretrial diversion program:

• Contact your program coordinator or the court as soon as you realize you have fallen behind, rather than waiting to be contacted first.

• Put together a folder with a letter explaining what happened and supporting documents, such as medical records or proof of a scheduling conflict.

• Don’t miss any additional requirements while the situation is being sorted out.

• Prepare to explain, honestly and clearly, what steps you plan to take to get back on track.

You should also contact a criminal defense attorney as soon as possible. An attorney can often help you address the missed requirement before it creates more problems with your diversion.

Schedule a Free Consultation With Our San Jose, CA Diversion Program Attorney

Attorney Cory Lee Fuller grew up in Santa Clara County. He attended Bellarmine and Santa Clara University before choosing to stay local and serve the community he was raised in. He believes you deserve a real voice in a system that can feel overwhelming and complicated, especially when you and your family are simply trying to get life back on track. Having someone who believes in you and is willing to advocate for you through every step of the process can make all the difference.

If you have fallen behind on a diversion program, call 408-234-7563 to talk with our Palo Alto, CA criminal defense lawyer at Fuller Law Firm today.