Pretrial Diversion Program – What is it and how does it work?

Posted on November 9, 2022

A pretrial diversion program is an alternative resolution of a criminal case by which the defendant can avoid jail and a criminal conviction. The program diverts defendants out of the criminal justice system and into a form of supervised release or probation. Defendants who complete the diversion program can have their case dismissed. Those who fail the program are prosecuted for the original offense.

What is a pretrial diversion program?

Pretrial diversion programs are a different way to resolve a criminal case.

Normally, the defendant is:

• arrested,
• charged with a crime, and
• either pleads guilty and gets sentenced, or pleads not guilty and goes to trial.

Pretrial diversion programs take defendants out of this process between the arrest and the trial. Some programs become options after the charges have been filed, but before trial. Others become available before the defendant is even charged.

The goal of these programs is to lighten the strain on local courts by diverting low-level, non-violent offenses. They also provide rehabilitation services to the people who could use them, the most. They also allow people who are unlikely to run afoul of the law, again, to move on from their mistake without a potentially devastating criminal conviction or arrest record.

Different states, and even different counties or cities, have different diversion programs available. Many locales have multiple programs available for different offenses. Some examples include diversion programs specifically for:

• drug possession, especially possession of marijuana,
• shoplifting,
• driving under the influence (DUI), and
• domestic violence.

What does the program entail?

While each one is different, pretrial diversion programs focus heavily on rehabilitation and restitution services that are tailored to the alleged criminal offense.

For example, the pretrial diversion programs used for drug offenses often involve:

• completing a drug rehabilitation or substance abuse program,
• undergoing drug testing and passing random drug tests during the program,
• providing regular status updates to the court or to a program officer, and
• maintaining stable employment or status as a full-time student.

DUI diversion programs, on the other hand, often entail:

• paying restitution to the victim, if the arrest followed an accident,
• completing an alcohol rehabilitation course,
• driving with an ignition interlock device in the car, and
• passing a driver safety course.

Nearly all of these pretrial intervention programs also require participants to:

• avoid being arrested or charged with another crime for a certain period of time,
• comply with any restraining orders in effect,
• pay all required program fees, and
• complete a certain number of community service hours.

Many of these elements are also used in probation programs. Pretrial diversion programs are often administered and run by the same state or county office that handles probation programs.

What offenders are eligible for diversion?

Many pretrial diversion programs only accept first-time offenders, or defendants who have a fairly clean criminal record. Some programs, though, are more lenient in who can join. Many have eligibility requirements, but allow judges to make exceptions for offenders with a criminal history but who seem like they would benefit more from the program than from a normal adjudication of their case.

Nearly all pretrial diversion programs require a finding that a defendant is not a threat to public safety, though. This is why people who have been accused of a violent offense are rarely eligible for a diversion program.

What criminal offenses are eligible?

Generally, diversion programs are for non-violent misdemeanors.

If the criminal charge is for a violent or a serious crime, like a felony offense, courts tend to think that it is too much of a risk to release the defendant to a diversion program.

Do I have to plead guilty, first?

Some pretrial diversion programs require a participant to plead guilty to the criminal charges before they can be diverted from the criminal justice system. Other programs do not require a guilty plea.

The difference between these 2 types of programs is significant. If a diversion program requires a guilty plea, then it is a considerable risk to the defendant. If the defendant has legitimate defenses to the criminal charge, pleading guilty would waive those defenses. If he or she then fails to complete the terms of the program, their case would go back to court and straight to sentencing because they would have pleaded guilty, already. If the program does not require a guilty plea, if the defendant fails the program then he or she would return to the criminal process in the same place as before.

Talking to a criminal defense attorney before making a decision about taking a diversion program is very important. Having to plead guilty can drastically undermine your case.

What happens after completion of the program?

If a defendant is eligible and chooses to do a pretrial diversion program, successful completion of the program will usually mean that the charges will be dropped or the case dismissed. In some states, this is referred to as a “nolle prosequi,” which is Latin for an unwillingness to pursue the charges.

For programs that take defendants before charges were even filed, the prosecutor will drop the case when the diversion program is completed.

For programs that take defendants after charges were filed, but before the trial, the prosecutor will drop the charges. The judge will then dismiss the case.

If the program required a guilty plea, successfully completing the program can lead to:

• the judge changing the guilty plea to one of not guilty and then dismissing the case, or
• the judge ending the case and sealing the guilty plea through the expungement process.

What happens if I fail the program?

Defendants who participate in a pretrial diversion program but who then fail to complete it will be sent back to the court system. The district attorney’s office will reopen the case. Law enforcement will resume prosecuting it.

If participating in the program required the defendant to plead guilty, then the case returns to the criminal justice system at the sentencing phase. Because the defendant pled guilty in order to participate in the diversion program, he or she will be unable to raise any legal defenses that they would have had.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.