Practice Alert—representing Veterans
| Publication year | 2018 |
| Author | By Timothy E. Warriner |
By Timothy E. Warriner*
The law gives veterans special legal rights. In order to provide effective assistance of counsel to our members of the United States military, and to veterans, attorneys must be aware of specific legal provisions. Judges, also, must take care to review the applicable provisions.
At arraignment, the magistrate "shall inform the defendant that there are certain provisions of law specifically designed for individuals who have active duty or veteran status and who have been charged with a crime. The court shall inform the defendant that if the defendant is on active duty in the United States military, or is a veteran of the United States military, the defendant may request a copy of the Judicial Council military form that explains those rights and may file that form with the court so that the defendant's active duty or veteran status is on file with the court. The court shall advise the defendant that the defendant should consult with counsel prior to submitting the form and that the defendant may, without penalty, decline to provide this information to the court." (Pen. Code, § 858, subd. (d).) Subdivision (e) of section 858 then provides that "[i]f the defendant acknowledges active duty or veteran status and submits the Judicial Council military service form to the court, the defendant shall file the form with the court and serve the form on the prosecuting attorney and defense counsel. The form may be used to assist in determining eligibility for services pursuant to Section 1170.9. The court shall transmit a copy of the form to the county veterans service officer for confirmation of the defendant's military service. The court shall also transmit a copy of the form to the Department of Veterans Affairs."
Thus, every single defendant in California is supposed to be informed at arraignment that if they are either active duty or a veteran, and are charged with a crime, they have certain rights under California law. Judges must make sure that defendants are being properly advised so that United States military personnel and veterans are aware of their legal rights.
Penal Code section 1170.9, subdivision (a), provides that if a defendant alleges that he or she committed an offense as a result of trauma, injury, or other problem "stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the...
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