SB 396 requires courts, after finding a defendant mentally incompetent, to pause criminal proceedings and hold a prompt eligibility hearing under California’s mental-health diversion framework. If eligible, the court must place the defendant into mental-health diversion for up to one year or the statutory maximum sentence for the most serious misdemeanor charged, whichever is shorter; if ineligible, the statute lists five prescribed next steps including modification of treatment, referral to assisted outpatient treatment (AOT), referral for conservatorship, referral to the CARE program, or dismissal.
The bill builds procedural safeguards—specific deadlines for post-incompetence hearings, mandatory release on recognizance if hearings are delayed, and defined timelines that trigger dismissal of charges after successful diversion or certain referrals. It also explicitly allows mental-health diversion to apply to misdemeanor DUI offenses (Vehicle Code §§23152, 23153) while preserving DMV administrative authority, and establishes accelerated custody credit toward treatment terms.
These changes shift decision-making from incarceration toward treatment pathways and impose operational demands on courts, county mental-health systems, and jails.
At a Glance
What It Does
After a finding of incompetence, SB 396 pauses criminal proceedings and requires a diversion-eligibility hearing under Chapter 2.8A; eligible defendants may be placed in mental-health diversion for up to one year or the statutory maximum misdemeanor term. If diversion is unavailable, the statute prescribes alternative referrals (treatment modification, AOT, conservatorship, CARE) or dismissal, and sets deadlines that trigger release on recognizance when missed.
Who It Affects
Superior courts, county mental-health agencies and treatment providers, public defenders and prosecutors, county jails, and defendants charged with misdemeanors—including DUI misdemeanors under Vehicle Code §§23152/23153.
Why It Matters
SB 396 formalizes a treatment-first route for defendants found incompetent and extends diversion eligibility to certain DUI misdemeanors, creating binding timelines and dismissal triggers that will force counties and courts to coordinate clinical assessments, treatment placement, and conservatorship referrals on tight schedules.
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What This Bill Actually Does
SB 396 rewrites what happens when a criminal defendant is found mentally incompetent to proceed. Instead of automatically moving toward restoration in custody, the court must suspend the criminal process and hold a diversion-eligibility hearing under the mental-health diversion statute (Chapter 2.8A).
If the court deems the defendant eligible, it grants diversion for a period capped at one year from acceptance or the maximum misdemeanor prison term, whichever is shorter, and the case is dismissed upon satisfactory completion.
If the court finds diversion inappropriate under the exclusion criteria in Section 1001.36, the bill requires the court to choose among a short menu of alternatives after notice and a follow-up hearing: modify an existing treatment plan, refer the person to assisted outpatient treatment (AOT) where available, refer for conservatorship proceedings if the person appears gravely disabled, or refer to the CARE program—and only if none of those options fit may the court dismiss the charges. Each referral path carries its own procedural clock: the statute mandates a diversion-hearing within 29 days of the incompetence finding, an AOT-eligibility hearing within 45 days, and a CARE eligibility hearing within 14 court days; the court must release the defendant on their own recognizance if those hearings are delayed beyond the statutory windows (with specific language about release for defendants confined in county jail).The bill also specifies how and when dismissal occurs after these treatment referrals: charges are dismissed six months after referral to AOT or CARE unless the case returns to court earlier; conservatorship-related charges are dismissed 90 days after filing of a conservatorship petition, and the court must release someone if a conservatorship petition is not filed within 30 days of referral.
SB 396 preserves the confidentiality of AOT, CARE, and conservatorship proceedings and explicitly states that inclusion of DUI misdemeanors for diversion does not limit the Department of Motor Vehicles’ separate administrative authority over driving privileges. Finally, the bill gives defendants accelerated treatment credit: for every two days in actual custody, four days will be deemed served against the applicable treatment term, and it limits the statute’s application to the scope set out in subdivision (b) of Section 1367 while preserving the court’s existing discretion under Section 1385.
The Five Things You Need to Know
The court must hold the post-incompetence diversion-eligibility hearing within 29 days of the incompetence finding, and must release the defendant on their own recognizance if that hearing is delayed.
Mental-health diversion under this statute may apply to misdemeanor DUI offenses (Vehicle Code §§23152 and 23153), but DMV administrative action remains unaffected.
If diversion is granted, the diversion term cannot exceed one year from acceptance into diversion or the statutory maximum imprisonment for the most serious misdemeanor charged, whichever is shorter.
When diversion is unavailable, the court must, after a hearing, either modify treatment, refer to assisted outpatient treatment (AOT) with a 45-day eligibility hearing, refer for conservatorship (30-day filing expectation), refer to CARE with a 14-court-day eligibility hearing, or dismiss the charges.
SB 396 accelerates custody credit for treatment: four days are deemed served for every two days actually spent in custody toward the applicable treatment term.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Resume criminal proceedings if defendant competent
This short provision directs the court to continue the criminal process and proceed to trial or hearing when the defendant is found mentally competent. Practically, it preserves the status quo: a competence finding ends the special diversion flow established in the rest of the statute and returns the case to ordinary criminal procedure.
Suspend proceedings; grant mental-health diversion and include misdemeanor DUIs
When a defendant is found incompetent, the court must suspend the case and hold an eligibility hearing under Chapter 2.8A; if eligible, the court may grant mental-health diversion. The statute caps diversion at one year from acceptance or the maximum misdemeanor term, which constrains longer-term treatment placements. Importantly, the bill expressly includes misdemeanor violations of Vehicle Code §§23152 and 23153 among offenses eligible for diversion; the provision also clarifies it does not affect DMV administrative actions, preserving parallel administrative processes.
Timing rules: 29-day hearing and dismissal after successful diversion
SB 396 imposes a strict timeline: the diversion-eligibility hearing must occur within 29 days of the competency finding. If courts miss that deadline, the statute requires the defendant’s release on their own recognizance pending the hearing. If the defendant completes diversion satisfactorily, the court must dismiss the criminal charges at the end of the diversion period. These mechanics push cases quickly toward treatment or community release rather than prolonged pretrial detention.
If diversion is inappropriate: five prescribed options and their mechanics
If courts determine diversion is unavailable under the exclusion criteria in Section 1001.36, the bill compels a follow-up hearing and directs courts to pick from a menu: modify an existing treatment plan; refer to assisted outpatient treatment (AOT) where services exist and the agency accepts responsibility (with an AOT-eligibility hearing within 45 days and a six-month dismissal trigger if accepted); refer to conservatorship proceedings for apparent grave disability (with a 30-day expectation to file a petition and a 90-day dismissal-after-filing rule); refer to the CARE program (14 court-day hearing and six-month dismissal-after-referral if accepted); or dismiss the charges if none apply. Each path includes rules about release on recognizance when hearings are delayed and preserves confidentiality for AOT, CARE, and conservatorship processes.
Custody credit toward treatment term
The bill instructs courts to credit treatment terms more generously for time spent in actual custody: every two days in custody count as four days served against the maximum period of treatment for some referral types. It also clarifies 'actual custody' by reference to Section 4019. This accelerated credit will shorten supervised treatment periods for detainees who spent pre-treatment days behind bars and may affect incentives around custody versus prompt placement in treatment.
Scope limitation and preserved court discretion
SB 396 limits its reach by tying applicability to subdivision (b) of Section 1367, which narrows the situations in which this diversion framework applies. The statute also states legislative intent that courts consider treatment options before dismissal but expressly preserves a court’s independent dismissal authority under Section 1385. Those cross-references mean practitioners must read this statute alongside existing competency, diversion, and dismissal rules to understand interactions and limits.
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Explore Criminal Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Defendants with serious mental illness charged with misdemeanors, including certain DUI offenders — they gain expedited access to diversion, outpatient treatment, or conservatorship pathways that prioritize treatment over incarceration and create explicit dismissal triggers upon successful placement.
- Defense counsel and public defenders — they receive statutory deadlines and a clear menu of treatment-focused options to pursue after a competency finding, making it easier to press for treatment placements rather than prolonged detention.
- County mental-health providers and CARE/AOT programs — the bill creates referral streams that, when paired with local capacity, can increase program enrollments and provide clearer legal authority for treating defendants through civil or outpatient mechanisms.
Who Bears the Cost
- County governments and behavioral-health agencies — they must perform timely assessments, accept or refuse referrals (AOT/CARE), staff conservatorship investigations, and absorb treatment placements without any appropriation language in the statute.
- Superior courts and court administrators — the new 29/45/14‑day hearing windows and OR-release mandates create calendar pressure and potential increases in short-notice hearings and procedural work.
- County jails and sheriffs — the requirement to release defendants on recognizance when hearings slip, plus the shifted emphasis toward treatment rather than custody, will require operational adjustments and may reduce jail populations unevenly across counties.
Key Issues
The Core Tension
The bill forces a choice between speed and certainty: it seeks to move defendants out of jail and into treatment quickly, but tight statutory deadlines and dismissal triggers can produce rushed clinical decisions, premature releases, or operational strain on counties—so the law solves detention concerns while creating trade-offs in assessment accuracy, service capacity, and public-safety oversight.
SB 396 advances treatment-oriented responses to incompetence findings but pushes hard on timelines and administrative coordination without providing funding or addressing capacity. The statutory hearing windows (29 days for diversion eligibility, 45 days for AOT, 14 court days for CARE) are designed to limit pre‑hearing detention, but they also create operational risk: courts and counties that lack timely access to qualified mental‑health experts, treatment slots, or conservatorship investigators will either have to release defendants on OR or rush evaluations and placements.
Both outcomes carry trade-offs for public safety, continuity of care, and the accuracy of clinical determinations.
The bill extends diversion eligibility to misdemeanor DUI offenses while preserving DMV authority; that creates a legal split between criminal dismissal and ongoing administrative license consequences. The conservatorship pathway raises particular implementation questions: the 30‑day expectation to file a petition, the requirement to investigate alternatives before establishing conservatorship, and the 90-day dismissal-after-filing trigger together mean that conservatorship agencies must act quickly or defendants will be released back into the community.
Finally, confidentiality protections for AOT, CARE, and conservatorship proceedings may complicate information-sharing between criminal justice and public-health actors, potentially impeding coordinated supervision and treatment planning.
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