This is Dennis Boren, criminal defense attorney, and former felony prosecutor. This post reviews the program called Pretrial Diversion.
Super Secret Double Probation
That’s the joke name that prosecutors have for this program, the purpose of which is to give people without a serious criminal history a second chance. A good defense attorney can get a Pretrial Diversion offer from prosecutors on offenses as major as second-degree felonies.
But what is it?
Let’s break it down.
“Diversion” is the idea that it is an alternative that comes from outside of court, not from a judge. It’s diverted off to the side. If you think if the criminal justice system is a rail line and your train car is on, it moves it to a sidetrack. Only a prosecutor can offer this remedy. You can’t get it from the judge.
Pretrial Diversion is an alternative to prosecution which seeks to divert certain offenders from traditional criminal justice processing into a program of supervision and services.
Probation, But Not
It sounds a lot like probation, but it’s technically not. Often, the probation departments run this program. Counties have discretion on how they want to run it. Most often, the program is run by the probation department because it feels so much like probation.
The individual in the program will meet with a probation officer, usually with their lawyer present, to go over the rules. The program will usually last between one and two years. An upfront fee of $250 to $500 will be paid, followed by the monthly maintenance fee of $50 or $60. The exact amounts depend on the county.
Why it is Good
The reason this is an excellent remedy is that a court never does enter any judgment regarding the disposition. The case will be dismissed if somebody completes Pretrial Diversion successfully. The beauty of that is, because there is no disposition in court and the case is dismissed, the individual is entitled to an expunction. They can go in and ask the judge to enter an order to remove this totally from their criminal history.
The expunction doesn’t happen by default. It is a separate effort that has to be made once the defendant has completed their Pretrial Diversion program.
Whenever possible, the defendant and their lawyer should be pushing for this program. It’s such an excellent remedy, and it can get rid of the case in a defendant’s favor and leave the possibility to have an expunged record.
In our society, it is hugely beneficial to have a clean criminal record. A clean record doesn’t just mean that law enforcement can’t see this offense when they look up your history. It also affects your job prospects and your ability to enter certain professions. Occupations like nursing, law, medicine, all require a clean record. And many jobs beyond that also do criminal background checks before hiring. Having an offense on record shuts so many doors that you want to be left open.
How Common is it?
Pretrial Diversion is not a default option, but it’s getting to be more and more a preferred remedy with cases where the defendant doesn’t have a record. The thing you have to remember is that you need a good lawyer in your corner that gets along and works with the District or County Attorney’s Office to get this kind of offer. You don’t want somebody who’s at war with the prosecutor’s office, because the prosecutors are human beings, subject to bias, who have all the power over the decision about whether to offer this program or not.
Get it on the Record
We always recommend that if you have any interaction with a police officer, get a record of it. Just turn on your video, or at least your audio app on your phone, and document it. It will save you a lot of grief.