Criminal Law

What Is Diversion?

A criminal conviction can haunt someone for the rest of their life. A criminal record can make it more difficult to find a job, get housing, and move forward with life. Yet many people who are arrested for the first time simply made a mistake, are suffering from substance use disorder or a mental health issue, or were in the wrong place at the wrong time. Many first-time offenders can benefit more from counseling than time behind bars.

Fortunately, the justice system has recognized this and provided an alternative for some criminal defendants. Diversion programs may provide an alternative to jail and a criminal record. In exchange for accepting responsibility for their actions and following a treatment plan, the defendant can have charges dropped to keep their record clean. If you have questions about non-prison options after an arrest, contact an experienced criminal defense lawyer for help.

Diversion Programs for First-Time Offenders

A diversion program is an alternative sentencing option that allows the defendant charged with certain crimes to avoid a criminal conviction. Diversion or pretrial diversion may be available to people facing first-time arrests or non-violent misdemeanor offenses. Diversion may require a combination of education, counseling, and checking in with the court to help the defendant avoid further run-ins with the law.

Some of the more common diversion programs involve low-level drug offenses. Some people charged with drug possession have a substance abuse problem and diversion may offer support and treatment instead of incarceration. There are a growing number of diversion programs and deferred judgment options, including:

  • Drug diversion
  • First-time offenders diversion
  • Drunk driving diversion
  • Military and veteran diversion
  • Mental health diversion
  • Juvenile diversion

Restrictions and Conditions

Diversion is not a “get out of jail free" card. There are conditions and restrictions that are required to be able to complete the diversion program. The conditions are like probation, where the defendant has to agree to certain terms and complete those requirements to have the charges dropped. Failure to follow the terms or complete the diversion program may result in a conviction and sentencing, which could include jail time.

The restrictions and costs associated with diversion can be a burden. It is important to understand what you will be expected to do before agreeing to plead guilty in exchange for diversion. Conditions for diversion may include:

  • Checking in with the court or probation officer
  • Random drug tests
  • Alcohol monitoring
  • Ignition interlock device (IID)
  • Mental health counseling
  • Substance abuse counseling
  • Anger management counseling
  • Group therapy sessions
  • Education programs
  • Community service
  • Restitution
  • Fees for the diversion program
  • Subject to a protection order
  • No new arrests

Do I Qualify for Diversion?

Not all offenses or defendants are eligible for a diversion program. Generally, low-level, non-violent, and first-time offenders have a greater chance of getting diversion. However, the court may have discretion over whether or not to offer diversion. Diversion programs vary by state, and sometimes by county or individual judge. Depending on the state, offenses that may be eligible for diversion include:

  • Drug possession
  • Drunk driving
  • Vandalism
  • Disorderly conduct
  • Possession of drug paraphernalia
  • Public intoxication

Some charges are not eligible for diversion programs. This may include violent offenses, like voluntary manslaughter and many sex crimes. Talk to your lawyer about whether you may be eligible and how to file a motion to grant deferred judgment or diversion.

Will I Get a Criminal Record?

One of the primary benefits of diversion is that it avoids a criminal conviction. Depending on the state and the diversion program, successful completion may result in dropping any criminal charges. This would mean there is no criminal record for a conviction. A background check would not show a conviction. In most states, if you are asked on an application whether you were convicted of a crime, you can answer “no."

There may be some trace of your arrest and the diversion program but this is generally not available in public background searches. The criminal arrest and other court records may be available to law enforcement and the courts. This may impact the penalties and charges if you are later arrested and charged for another crime. Some professional licenses and professions may require you to report any previous arrests, even if they did not end in a conviction.

If You Fail the Program or Miss a Meeting

The requirements for diversion are not easy. Diversion programs can be expensive and burdensome. Even missing a payment or failing a drug test can result in terminating the diversion program and sending the defendant to jail. Your criminal defense attorney may be able to help you stay in the program if you need some extra help. Your lawyer can negotiate to modify treatment or seek another chance to finish the program. Talk to your criminal defense lawyer for advice.