There are many pros and cons of diversion programs. This article will try to flush out some of the benefits and drawbacks to engaging in pretrial intervention programs. Keep in mind, every jurisdiction handles diversion differently. Some jurisdictions don’t even have diversion. Some may have only misdemeanor diversion and some may only have felony diversion programs.
What Are Diversion Programs?
Diversion programs are created and operated by a prosecutor’s office. They are developed by each specific city prosecutor or district attorney. However, it is not required that they have pretrial diversion programs, nor are there any requirements as to how they operate diversion programs. The prosecutor can allow or deny whoever they want into the program. Once the district attorney creates a diversion program, they are bound by no rules as there is no governing agency over them.
Diversion programs are also known as Pretrial Diversion, Pretrial Intervention, Early Intervention, Diversion, and many more. Because each prosecutor’s office may have their own program, they can call it whatever they want. Diversion programs exist as a way for the defendant in a criminal case to complete certain conditions within the program in exchange for the prosecutor agreeing to divert the prosecution away from court and ultimately dismissing the case or not instituting prosecution.
Who Qualifies for Diversion Program?
The better question should be “Who gets into diversion?” Even prosecutor’s offices use the term “qualify” but that’s not really what they’re doing. They choose who gets into the program. If they turn someone down, they say the defendant didn’t “qualify” for the program. In reality, the prosecutor’s office just didn’t want to accept them, even though they could if they wanted. Most prosecutor offices have basic rules such as they defendant must have a clean record. “Clean record” can mean a lot of different things.
The defendant could have absolutely no prior arrests but could still get denied diversion because of the type of charge or because the victim won’t agree. The prosecutor just may not like the defendant’s mugshot or things he/she told the officer during the arrest. Also, the prosecutor’s office may feel the arresting agency spent too much time or resources investigating these types of charges or the defendant to justify offering diversion. Some prosecutor offices will deny diversion if the defendant does not live there locally.
MYTH: The most common myth in the public regarding pretrial diversion programs is that if you have clean record, you can get diversion. This is incorrect. True, if you have prior arrests/convictions, then you may get turned down, but just because you have a clean record does NOT mean you are getting in.
Should I Do the Diversion Program?
Whether or not diversion is the best answer for your case really depends on all the circumstances surrounding your case, not just the facts that led to the arrest. You must consider the impact on your driving record, criminal record, employment, school, military status, personal life, etc. Since each diversion program is different, you should consider if you can successfully complete the conditions and if it is worth it. Defendants may turn it down because they don’t want to abide by the prosecutor’s conditions of pretrial diversion.
As you can see, each case has to be looked at individually because not only are the facts of the criminal case different, but the defendant’s circumstances are different. It is wise to hire a criminal defense attorney after you receive the charge so he can properly advise you as to what is best for you.
Disadvantages of Pretrial Programs
Disadvantages of diversion programs include high costs, having to complete a serious of conditions which can be burdensome, and being at the mercy of the diversion counselor. If you mess up during diversion, such as have a dirty drug screen or catch a new charge, then you could get kicked out of pretrial intervention. If you are booted, you’ll lose all the money you put it because they do not return it.
MYTH: If I complete diversion, my record will be clean.
TRUTH: If you complete diversion, you won’t have a conviction. You will still have the fact of the summons or arrest on your criminal record. The only way to remove the summons or arrest is to go through the expungement process. You must file a Motion to Expunge with the court and wait months for it to go through. Nothing automatically falls off of your record.
What Do You Do in a Diversion Program?
The diversion program will usually be different for every individual. The diversion counselor will first meet you and determine which requirements you should complete as well as the enrollment fee. The enrollment fee can range from hundreds to thousands of dollars. If you owe any restitution, that would need to be paid in the beginning as well. For instance, if you are charged with theft at Walmart, you would need to pay back the value of the goods if they were not confiscated at the arrest.
The diversion coordinator may require that you complete community service, refrain from drugs and alcohol, submit to random urine and hair screening, install the ignition interlock device for DWI cases, be evaluated for substance abuse, complete counseling sessions, take rehabilitative classes, etc. Depending on how you are progressing in the program, the coordinator may require a longer period of time and more conditions.
What is the Process of Diversion Program?
In many diversion programs, the first step is attending an orientation where they will inform you of the nature of the program. They may answer any general questions you have. If you move forward, they will schedule a diversion interview to enroll. You’ll be told all the conditions you need to meet and the time period to complete the program. Then, you complete the conditions and don’t get another criminal charge. Your attorney can assist with court dates since you may still be required to attend court, depending on the jurisdiction.
How Long is a Diversion Program?
The diversion program varies in length. For DWI cases, it is usually one year. Felony cases can be shorter or longer. Diversion programs are all over the map when it comes to length. There is no standard. It also depends on how well the defendant is doing. If the defendant is not getting the requirements done, then it could take longer.
Diversion for DWI
Not every prosecutor’s office offers diversion for DWI. In fact, many do not. The DWI diversion programs that exist vary in their requirements. Some are basic and others are very burdensome with requirements such as an ankle monitor. The most common mistake we see by those with DWI charges is that they do not hire a lawyer soon after the arrest. Their driver’s license gets suspended because they didn’t get a lawyer involved asap to help with that aspect of the case. The diversion program only has to do with the criminal case, not your driver’s license case.
In Louisiana, DWI is treated differently than other criminal cases. If you complete diversion for DWI, you have to wait 5 years before you can file a motion to expunge the arrest from your record. In other criminal cases, you could file the motion to expunge immediately after completing diversion.
Next Steps
If you get a criminal or DWI charge, the first step is to retain a criminal defense lawyer to represent you. Your lawyer should know how to strategize with the prosecutor and the judge and discover the best options for you. Your defense attorney may try to make an agreement with the prosecutor to let you into the pretrial diversion program. In many instances, this can be very difficult to do because all prosecutor offices and diversion programs are different. The prosecutor looks at each case in detail to determine if they will allow the program.
