What is Colorado's adult diversion program?
Adult diversion is a voluntary alternative to a criminal trial. It is a type of Colorado plea bargain that does not require you to plead guilty to any charges. Instead, it allows eligible people accused of a crime to participate in treatment and make restitution in exchange for the prosecutor dismissing or not filing criminal charges.
If you successfully complete Colorado diversion, you will not have a conviction for that offense on your record. You will also be able to petition the court to seal the record of the arrest and any related proceedings.
Adult diversion is sometimes referred to in Colorado as “pretrial diversion,” “deferred prosecution” or a “differed prosecution plea bargain.” It can be an attractive alternative to the uncertainty of a criminal prosecution.
However, adult diversion requires you to enter into a binding legal agreement to fulfill certain conditions. Because these conditions can be quite restrictive, it is a good idea to retain an experienced Colorado criminal defense lawyer to help you negotiate your diversion agreement.
To help you better understand pretrial diversion and deferred prosecution in Colorado, our Denver criminal defense lawyers answer the following questions, below:
- 1. What is adult diversion?
- 2. What is the purpose of Colorado's adult diversion law?
- 3. Who is eligible for adult diversion?
- 4. Limitations on eligibility
- 5. How long does diversion last?
- 6. Will I be on probation during diversion?
- 7. What is a diversion agreement?
- 8. What are typical conditions of diversion?
- 9. How much does diversion cost?
- 10. What happens if I successfully complete diversion?
- 11. Will my Colorado arrest record be sealed if I complete diversion?
- 12. What happens if I don't successfully complete diversion?
Diversion consists of a legally binding agreement between a criminal defendant and a Colorado district attorney The defendant agrees to counseling, payment of restitution, and certain other conditions. In exchange, the prosecutor agrees that if the defendant successfully completes the program, no charges will be filed -- or, if charges have already been filed, that they will be dismissed with prejudice (meaning the defendant can never be prosecuted for the alleged offense).
In Colorado, this program is officially known as “adult diversion.” It is sometimes called "pretrial diversion" or “deferred prosecution” (depending on whether charges have been filed) or even a “deferred prosecution plea bargain.”
In 2013 the Colorado legislature passed HB 13-1156, which became Section 18-1.3-101 of the Colorado Revised Statutes (C.R.S.), Colorado's "adult diversion" law.
The purpose of adult diversion is to let defendants who would benefit from treatment “avoid the collateral consequences associated with criminal charges and convictions" while still be held accountable for their actions.
The idea behind diversion is to:
- Prevent defendants from committing additional criminal acts;
- Restore victims of crime;
- Facilitate the defendant's ability to pay restitution to victims of crime; and
- Reduce the number of cases in the criminal justice system.
Adult diversion is most commonly offered to first-time offenders accused of a Colorado drug crime or a low-level sex crime, crime of domestic violence or child abuse charge.
In determining whether diversion is appropriate, the district attorney will consider:
- The nature of the crime charged and the circumstances surrounding it;
- Any special characteristics or circumstances of the defendant;
- Whether diversion is consistent with the defendant's rehabilitation and reintegration; and
- Whether the public interest will be best served by diverting the individual from prosecution.1
Before agreeing to pretrial diversion, the prosecutor may require a defendant to provide information regarding:
- Prior criminal charges,
- Work experience,
- Residence in the community, and
- Any other information relating to the diversion program.2
You are not eligible to participate if your alleged offense is:
- Sexual assault, 18-3-402 C.R.S.;
- Sexual assault on a child, 18-3-405 C.R.S;
- Any sexual offense committed against an at-risk adult or an at-risk juvenile;
- Any sexual offense committed with the use of a deadly weapon;
- Enticement of a child, 18-3-305 C.R.S;
- Sexual exploitation of a child, 18-6-403 C.R.S;
- Procurement of a child for exploitation, 18-6-404 C.R.S;
- Sexual assault on a child by one in a position of trust, 18-3-405.3 C.R.S; or
- Any child prostitution offense.3
Additionally, If your jurisdiction is one that receives money from the state of Colorado for the creation or operation of diversion programs, there are further limitations on eligibility.
As of 2016, there are 6 judicial districts with grant-funded diversion programs:
- 6th Judicial District (Archuleta, La Plata and San Juan County)
- 9th Judicial District (Garfield, Pitkin, and Rio Blanco),
- 15th Judicial District (Baca, Cheyenne, Kiawa and Prowers Counties),
- 16th Judicial District (Bent, Crowley and Ontaro),
- 20th Judicial District (Boulder County), and
- 21st Judicial District (Mesa County).
If you are in one of these districts, you are not eligible for adult diversion for an alleged Colorado sex offense or one involving Colorado domestic violence charges unless:
- Charges have been filed,
- You have had an opportunity to consult with counsel, and
- You have completed a domestic violence or sex-offense-specific treatment evaluation and risk assessment.4
Based on the results of that evaluation and the other factors set forth above, the district attorney has the discretion to allow you to do diversion if he or she feels it is appropriate.
Diversion normally lasts for a maximum of two years. However, the period of diversion may be extended for up to one additional year if:
- Failure to pay restitution is the sole condition of diversion that has not been fulfilled, because of inability to pay, AND
- You have a future ability to pay.5
During the period of diversion, you may be placed under the supervision of the probation department or a diversion program approved by the district attorney.6 As part of that supervision, you may be subject to regular phone calls and/or meetings with your probation officer or supervisor.
Adult diversions are governed by an individualized diversion agreement. The agreement is a binding legal contract that contains conditions specific to, or necessary for the proper supervision of, a given defendant. It is signed by the defendant, the defendant's attorney (if any), and the district attorney.7
Your diversion agreement may also include a statement of the facts the accusation against you is based on. The statement can be used against you if you fail to complete diversion and criminal proceedings are instituted or resumed.8
This makes it critical to retain an experienced Colorado criminal defense attorney to help draft the statement of facts. Your attorney will also negotiate the terms of the diversion so that they are no more restrictive than is strictly necessary.
While every diversion agreement is different, a typical diversion agreement will require at least several of the following:
- An alcohol and drug or sex-offender assessment;
- Appropriate counseling and treatment (e.g., for substance abuse, domestic violence / anger management, parenting, vocational, psychological issues, etc.);
- Payment of restitution to the victim;
- Community service;
- That you not commit any other crimes (other than minor traffic violations); and
- That you not possess any firearms or other weapons while in the program.9
If you already own a gun or other dangerous weapon, you will be required to surrender it until you successfully complete diversion.
As a condition of participation in a Colorado adult diversion program, defendants who are able can be required to pay:
- Victim restitution and court costs;
- A supervision fee not to exceed $50 per month;
- Costs of treatment and rehabilitation; and
- Costs of participating in restorative justice practices (facilitated meetings attended voluntarily by you and the alleged victim and possibly the public and/or your respective supporters).
Payment is on a sliding scale. You may be required to submit proof of your finances in order to obtain relief from payment obligations.
If you successfully comply with all conditions of your diversion agreement, you will be returned to the same legal status as if the arrest and/or charges had never occurred. If charges were never filed, they will not be filed. If charges were filed, the case will be dismissed with prejudice (meaning you can never be charged again based on the alleged acts that led to the arrest).10
A successfully completed diversion agreement is not considered a conviction for any purpose. You will not be required to disclose the arrest, citation, or summons in response to any inquiry made for any purpose -- including on job applications.11
Notwithstanding the foregoing, however, if you were arrested for a sex offense, information about the crime(s) charged and the facts alleged remains available for use by a court, district attorney, or law enforcement agency if you are subsequently charged with another sex crime. It can be disclosed during the investigation, prosecution, risk or needs assessment evaluation, sentencing hearing, or during a probation or parole supervision period.12
Although your arrest and/or criminal charges are dismissed on completion of diversion, they will still be on your record.
In order to hide the arrest and/or charges from the public, you must file a petition with the court to have your Colorado arrest and criminal record sealed. The petition needs to be filed in the Colorado District Court for the county in which the arrest and/or criminal charges occurred. Following successful diversion, the court must grant a sealing petition.13
Sealing your Colorado criminal record means that the arrest and related proceedings will not turn up in any public search and can only be used by the government for very limited purposes (such as in a subsequent sex offense investigation).
Our Colorado criminal attorneys can help you file your petition to seal your Colorado criminal record.
If you violate your diversion agreement, the prosecutor can revoke the contract and file charges or continue to prosecute you, as applicable.
Before your diversion agreement can be revoked, however, you, the court and the district attorney must be provided with written notice of your alleged violation. The prosecutor will then decide whether to revoke the agreement and proceed with a criminal prosecution.
You have the right to go to court to contest whether a violation occurred. Depending on the outcome, the court will either allow the prosecutor to proceed against you, or leave the diversion agreement in place and let you return to the program.14
Arrested in Denver or Golden? Call us for help…
If you or someone you know has been has been arrested or charged with a crime in Denver, our experienced lawyers may be able to negotiate a pretrial diversion, deferred prosecution or a plea bargain.
Our knowledge of the local courts and the prosecutors with the Denver District Attorney and the Jefferson County District Attorney puts us in a prime position to help you obtain the best possible resolution of your Colorado criminal charges.
We invite you to contact us for a free consultation to find out if you may be eligible for Colorado pretrial diversion or deferred prosecution. Our caring Denver and Golden criminal lawyers can also help you petition to seal your Colorado criminal record or defend you on your Colorado criminal charges.
To schedule your free consultation, complete the form on this page or call us at our Denver home office:
Colorado Legal Defense Group
1400 16th St
16 Market Square
Denver, CO 80202
Arrested in Nevada? Go to our article on the Nevada preprosecution diversion program.
- 18-1.3-101 (3) C.R.S.
- 18-1.3-101 (4) C.R.S.
- 18-1.3-101 (7) C.R.S.
- 18-1.3-101 (5) and (6) C.R.S.
- 18-1.3-101 (2) C.R.S.
- 18-1.3-101 (9)(a) C.R.S.
- 18-1.3-101 (10)(d) C.R.S.
- See, e.g., 18-1.3-101 (9)(b) C.R.S.
- 18-1.3-101 (9)(b) C.R.S.
- 18-1.3-101 (10)(b) C.R.S.
- 18-1.3-101 (6) C.R.S.
- 18-1.3-101 (10)(c) C.R.S.
- 18-1.3-101 (10)(d) C.R.S.