What is Pre-Trial Diversion?

What is Pre-Trial Diversion?When someone is facing a criminal charge, there are usually two main things that they are worried about: ending up with a criminal record and being sent to jail. In specific cases, pre-trial diversion might allow you to keep your criminal record clean and stay out of jail. 

Pre-trial diversion is a plea agreement between a prosecutor and criminal defendant that allows the defendant to maintain a clean record. All pre-trial diversion agreements must be in writing, signed by the defendant. Through this agreement, the defendant enters into pre-trial probation, which requires them to follow and complete requirements set by the judge. 

If the defendant successfully completes all of the requirements and does not get into any further trouble, then the judge will dismiss their case. The defendant will retain a clean criminal record. If you have questions about your criminal case, then you should seek the advice of an experienced criminal defense attorney.

California’s Pre-Trial Diversion Programs 

In the past, a defendant had to plead guilty to a criminal charge to qualify for pre-trial diversion. Recent changes to California’s pre-trial diversion law now allow defendants to enter a pre-trial diversion program without pleading guilty to anything.

There are three main pre-trial diversion programs in California:

  1.     Low-level misdemeanors and drug diversion;
  2.     Mental health diversion; and
  3.     Active military or military veteran diversion.

Pre-trial drug diversion is allowed for the possession of many types of drugs for personal use. To be eligible for pre-trial diversion, low-level misdemeanor charges cannot involve violence, such as assault. To see if your specific charge qualifies for diversion, it is important that you speak to an attorney. 

What are the Eligibility Requirements for Pre-Trial Diversion?

You must meet several requirements to be considered for a pre-trial diversion program. 

To qualify for misdemeanor or drug diversion under Penal Code 1000, you must:

  • Not have a felony conviction in the last five years,
  • Have not been convicted of an offense that doesn’t qualify for pre-trial diversion in the last five years, 
  • Not currently be charged with a crime of violence or threat of violence, and
  • Not appear to be guilty of any more serious crimes.

If you meet all of the requirements listed above, then you may be eligible for a misdemeanor or drug pre-trial diversion program. 

Almost all criminal charges are eligible for mental health diversion under Penal Code 1001.36. To qualify for mental health pre-trial diversion, the defendant must suffer from a mental health disorder that played an important role in the defendant’s conduct. A mental health expert must evaluate the defendant and believe that the defendant will cooperate and respond well to treatment.

The following charges are never eligible for mental health diversion: 

  • Murder
  • Rape
  • Any charge requiring sex offender registry
  • Terrorism

If you are active duty or a military veteran, then you may qualify for a military pre-trial diversion program under Penal Code 1001.81 if you suffer from:

  • Post-traumatic stress disorder (PTSD)
  • Traumatic Brain Injury (TBI)
  • Drug or alcohol addiction
  • Trauma related to sex
  • Certain mental health issues

There are several ways that someone charged with a crime can enter into a pre-trial diversion program. Pre-trial diversion is often the best way for someone to regain control of their life by avoiding a criminal conviction and/or jail.  

What Are the Expectations for Pre-Trial Diversion? 

If you agree to a pre-trial diversion program, then you will likely be required to complete at least one of the following:

  • Drug or alcohol treatment
  • Pay restitution to the victim
  • Community service
  • Pay court costs

If the court orders you to complete mental health treatment related to your pre-trial diversion contract, then you will have to fully engage in your treatment before the court will dismiss and seal your case.  

What If You Fail to Complete Pre-Trial Diversion Successfully?

Before 2018, if you failed to complete the requirements of your pre-trial diversion, then your case would go directly to sentencing. The rules changed in 2018. Now, if you fail to complete the requirements of your pre-trial diversion program, your criminal charges will be reinstated and your case will resume as normal. From there, the only way to avoid a conviction is to win your case at trial or get the case dismissed by the judge.  

Contact a Los Angeles Criminal Defense Attorney 

If you are charged with a crime and are wondering about the possibility of pre-trial diversion, then it is important to speak to an experienced criminal defense attorney right away. We offer a free consultation so you can have your case evaluated professionally.

Last Updated on May 31, 2021