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An exercise in diversion.

bunny For a lot of people, they just happen to be in the wrong place at the wrong time or unfortunately, in an instant, make a significantly irresponsible decision, which throws them into the ye olde Criminal Justice System. If they happen to get lucky, the county their criminal case located will offer a Diversion program for 1 st time offenders. Diversion programs were created to soften the blow by allowing offenders a second chance. By completing a program structured by the State Attorney’s Office, the Prosecutor will dismiss the charges.

di·ver·sion /dəˈvərZHən,dīˈvərZHən/

Ah, Diversion. In a lot of cases this can be described best as a “Guaranteed Win.” On the surface, it seems pretty simple. Complete the program and your charges will be dismissed. If you get rejected, you just come back to the trial court and can either take a plea [1] or go to trial. For a lot of people who are risk adverse or have a not so great case, this is the way to go. The process itself can take some time and the name can be different depending on the location. Pre-Trial Diversion, County Diversion Program, Pre-Trial Intervention, they are all versions of the same essential program. The program itself is very similar to probation and it is generally handled by a probation officer. There is an intake, fees, requirements which differ based upon the offense, and costs. Individuals are given a specific time period in which to complete their requirements and are often scheduled to meet with their “probation” officers. Check out these links to see some of the different diversion programs: Several of the Counties also offer specialized Diversion Programs including Teen Court, Veteran’s Diversion, Mental Health Court, and Drug Court. In some of the specialized programs, exceptions can be made based upon an individual’s history which otherwise would not qualify for “regular” diversion.

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Getting In.

Not every county accepts all types of crimes into their program. Some counties will offer diversion for offenses like DUIs, others will not. Typically, misdemeanor offenses (excluding most traffic offenses) and some third degree felony cases (i.e. non-violent drug possession, excluding possession w/ intent to sell/distribute cannabis) can be referred or accepted into Diversion, depending on the facts of the case. For instance, in Orange County, Florida, a person with a DUI may have a chance at getting their charges dropped by completing the Pre-Trial Diversion Program, but only if there hasn’t been an accident. It doesn’t matter if you just ‘hit the curb’ or ‘clipped a bush,’ if there is any fact present that says you ‘hit’ something, you are outta luck. Same thing with a bad driving pattern or a BAL over .220, a person may not qualify – remember, Diversion is at the discretion of the Prosecutor and is not always guaranteed.

The Fine Print.

A lot of programs ask Defendants to give up certain rights or make certain admissions which could later on be used against them if Diversion doesn’t work out. In some cases, a person can be offered “post-plea” diversion. This means that a person enters a plea first and “sentencing” [2] is put off. If they complete diversion they are allowed to withdraw their plea later on down the road. If they do not complete the program or are rejected from the program, they will go straight to sentencing as they’ve given up their right to try the case at trial or have other motions heard. Some programs require a person to sign a contract which says they admit to the crime and acknowledge such an admission can be used against them in court if they are unable to complete the program. A person’s attorney doesn’t get involved in the finer details as this is a contractual agreement between a defendant and the State Attorney’s office, so be very mindful what you are signing away when you go the diversion route. Some programs are very risk versus reward.

So why do it?

Again, successful completion of diversion is a guaranteed win where at the end, your charges get dropped. This is important if you want to go forward with having your record sealed or expunged. A lot of people are surprised to learn that completing diversion doesn’t automatically remove a case from your record. (ICYMI – it doesn’t) The benefit of Diversion is that a person can apply to have their case sealed AND expunged at the same time from their criminal record. If the facts aren’t great in your case, this is a smart option to take. There are often a lot of requirements to complete, but if you suck it up, buttercup, you can get that ‘bad case’ dropped – it’s totally up to you.

What happens if I fail, am I screwed in a way I don’t like?

No need to panic. Unlike a straight up plea, if a person messes up or can’t complete diversion, there are no “Violation of Probation” consequences. Your case is just sent back to “Start” and you go from there. A plea can be negotiated with the Prosecutor and any classes or community service completed during Diversion can satisfy conditions of a plea. I’ve handled several cases where an individual didn’t think Diversion was right for them after starting the program, reviewed the facts of their case, and was able to get the charges dropped because of existing legal issues in the facts. (It doesn’t always happen, but sometimes you get lucky!) In other cases, a client was able to resolve the case with a plea and a fine, which after careful discussion, they felt was the best way to resolve their specific case either due to time issues or money situations. For many, this is a ‘let’s go for it.. no harm, no foul’ option.

So go for it, or nah?

Ultimately, assuming a person qualifies, it’s up to the defendant to decide whether Diversion is the best solution to their case. Some clients in the past have decided it’s not for them, others are thrilled to have that option available. It all depends on your case, what the facts are - does it make sense. Just like a plea, a Defendant has to decide that whatever decision they make is the smartest decision.

Arrested? Facing criminal charges? Have a question about your case and whether you a) qualify or b) diversion is right for you? Call Colbert Law at (407) 705-3220!