SECTION 4. Inapplicability of chapter to certain persons; exceptions

(a) For the purposes of this section, the term ''serious mental illness'' shall mean a current or recent diagnosis by a qualified mental health professional of at least 1 of the following disorders described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders: (i) schizophrenia and other psychotic disorders; (ii) major depressive disorders; (iii) all types of bipolar disorders; (iv) a neurodevelopmental disorder, dementia or other cognitive disorder; (v) any disorder commonly characterized by breaks with reality or perceptions of reality; (vi) all types of anxiety disorders; (vii) trauma and stressor related disorders; or (viii) severe personality disorders.

(b) A person shall not be diverted to a program pursuant to this chapter if the person is charged with an offense: (i) that is enumerated in the second sentence of section 70C of chapter 277; (ii) for which a penalty of incarceration greater than 5 years may be imposed or for which there is a minimum mandatory penalty of incarceration; or (iii) that shall not be continued without a finding or placed on file.

(c) Notwithstanding any contrary provision of this section, a person may be diverted to a program pursuant to this chapter if the person is: (i) charged with an offense pursuant to subsection (a) of section 13A of chapter 265 or section 13A or 13C of chapter 268; or (ii) a veteran or a person on active service in the armed forces of the United States charged with an offense pursuant to subparagraph (1) of paragraph (a) of subsection (1) of section 24 of chapter 90 who: (A) has never previously been arrested for or been the subject of a complaint alleging a violation of an offense pursuant to said subparagraph (1) of said paragraph (a) of said subsection (1) of said section 24 of said chapter 90 or a like offense in another state or the United States or a military, territorial or Indian tribal authority; and (B) has been clinically diagnosed with a traumatic brain injury, substance abuse disorder or serious mental illness in connection with the veteran's military service or the person's active duty. The court shall consider the opinion of the prosecution in determining whether to divert a veteran or person on active service to a program pursuant to clause (ii). Diversion of a district court charge under this chapter shall not preclude a subsequent indictment on the same charges in superior court.