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What is Diversion?
Diversion is a program offered by some courts and/or prosecutor’s offices to selected criminal defendants whereby the defendant can admit the offense and complete certain tasks without the stigma of being convicted of a crime. Once those tasks are completed, the criminal charges against the defendant are dismissed.
Does a criminal defendant have a legal right to Drug Diversion?
No. In fact, many courts and prosecutor’s offices do not have Diversion programs. There is no legal requirement in the State of Ohio for the establishment of a Diversion program in a given jurisdiction. For those jurisdictions that do have Diversion programs, there is a screening process to determine a defendant’s eligibility for that jurisdiction’s program. Of course, in determining eligibility, the defendant has the right to not be discriminated against based upon race, gender, religion, or sexual orientation.
Is Drug Diversion limited to first-time offenders?
Usually, but not always. Typically, a defendant with multiple prior convictions facing pending misdemeanor charges will not be offered Diversion in a municipal court. A defendant with prior misdemeanor convictions facing a first-time felony offense, may be offered drug Diversion. Occasionally, a person with a prior felony conviction may be offered Diversion in a subsequent felony offense.
Who runs the Drug Diversion program, the Court or the prosecutor’s office?
This varies. With felony offenses, the County Prosecutor’s Office decides who gets to participate in Diversion. In Montgomery County, Ohio, the Prosecutor’s Office has a Diversion Division with Diversion Officers, who act similar to probation officers and supervised the defendants participating in Diversion. In Warren County, Ohio, the Prosecutor’s Office determines whether or not a defendant may participate in drug Diversion; however, the Prosecutor’s Office then uses the Court’s Adult Probation Department to supervise defendants participating in the drug Diversion program. Many municipal courts and mayor’s courts have the judge (or magistrate) determine eligibility for misdemeanor offenders and use their probation departments to supervise individuals on Diversion.
When is the best time to be considered for Drug Diversion?
As soon as possible. This can sometimes be negotiation even prior to the filing of the criminal charges. Thus, it is essential to contact an experienced criminal defense attorney as soon as possible to discuss the matter and get guidance on the availability of Diversion.
What type of offenses are not eligible for Drug Diversion?
This varies per Diversion program and may be considered on a case-by-case basis. Typically, defendants charged with violent offenses, drug-related offenses, or felonies of the 1st, 2nd, or 3rd degree are not considered for Diversion. Oftentimes, the police and alleged victims of the offense have input into whether or not a defendant should be permitted to participate in Diversion. An experienced criminal defense attorney can help advocate and negotiate for a defendant to get the opportunity to participate in Diversion.
If a defendant is refused Drug Diversion by a prosecutor’s office, can he/she file a motion with the court and have the judge override the decision?
No. A judge cannot order a prosecutor’s office to allow a defendant to participate in the prosectuor’s Diversion program.
Does a defendant have to admit guilt to the criminal offense to participate in Diversion?
Yes. Diversion programs are for defendants who admit their guilty and have minimal prior criminal records. In many jurisdictions, a person is first screened to determine eligibility for the Diversion program. He/she is interviewed and must admit to his/her criminal conduct. In Montgomery County, a felony defendant is required to provide a detailed written statement describing his/her criminal conduct. Once accepted into Diversion through the Montgomery County Prosecutor’s Office, the criminal proceedings are held in abeyance, while the person works to complete Diversion. In many other jurisdictions, once a person is accepted into Diversion, he/she must return to court and enter guilty pleas to the charges. Those guilty pleas are held by the court and not filed, so long as the person is following the rules of the Diversion program. If those objectives are successfully completed, then the case is dismissed and the guilty pleas are destroyed. If the person violates the rules of Diversion and is discharged from the program, the person is brought to court, the guilty pleas are filed, and the person is convicted of the offense and sentenced.
Does a person have to waive his/her speedy trial rights to participate in Diversion?
Almost every court or prosecutor’s office requires a defendant to waive (in writing) his/her speedy trial rights before screening a person for Diversion.
If a person is accepted into a Diversion program, but later discharged from the program for “no good reason”, what can they do?
An experienced criminal defense attorney can intervene and may be able to negotiate a resolution of the dispute that would allow the defendant to continue in the Diversion program. If this cannot be accomplished and the reason falls outside the terms of the Diversion Agreement, then a motion can be filed under the principles of breach of contract.
What types of terms or conditions are imposed on persons participating in Diversion?
This will vary based upon jurisdiction and may be determined on a case-by-case basis. Restitution to the victim is always required. A supervision fee is also imposed. The person may have to participate in certain programs, such as counseling, a Theft-clinic, victim-impact groups, etc … A detailed Diversion Agreement is created and must be signed by the defendant. The Agreement will have many requirements similar to those contained in Probation Agreements – they only difference being that a person participating in Diversion has not been convicted of a criminal offense.
What if a defendant disputes the amount of restitution that is sought by a Diversion program?
An experienced criminal defense attorney can intervene and try to negotiate a resolution to the disputed amount. However, if an agreement cannot be reached, then the defendant must decide whether participating in the drug Diversion program is more important than paying an excessive amount of restitution.
How long does Diversion last? Can a person be on Diversion for many years?
Typically, Diversion programs seek to work with individuals for whom all the task can be completed within one year. There are cases that have lasted for several years, but this is not the norm.
Is a person required to have a job to participate in Diversion?
If restitution is involved, the person must show a source of income so that a payment plan can be established to repay the restitution within a reasonable time.
What happens after a defendant completes Diversion?
The case is officially dismissed. Once the case is dismissed, the defendant may file a motion with the court to have the record of the case sealed.
Contact us today if you have more questions about diversion.
