What is Diversion and Why Do I Want It?

Most courts in the State of Georgia employ a program called Pretrial Diversion for first time offenders for a limited number of what the court considers to be minor misdemeanor offenses. The charges that are eligible for Record Restriction (expungement) vary from court to court, but most often include Possession of Less than One Ounce of Marijuana, Shoplifting Less than $300, Loitering and Prowling, Minor in Possession of Alcohol, Trespassing, and when the victim doesn’t wish to press charges, Simple Battery and Battery.

Pretrial Diversion does exactly what it says – it DIVERTS your case away from the courtroom. Instead of either entering a plea before a judge or going to trial on your case, you sign a contract with the prosecutor that says that if you do certain conditions (we will discuss those conditions below), then the prosecutor will dismiss your case. In most cases, you will then be eligible to have the arrest expunged, or erased from your record.

Clients often tell me that they don’t want to participate in Pretrial Diversion (or PTD) because they feel that agreeing to complete the conditions required by the State amount to an admission of guilt. However, I have rarely seen a case where it was not in the best interest of my client to participate in and complete PTD rather than risk trial.

Why is PTD such a great deal? Because not only does it result in the charges against you being dropped, but you can also get the arrest expunged (restricted) from your record. Record Restriction is a huge benefit to you and is one that you should not take lightly.

Despite a surprisingly popular belief, arrests and convictions don’t “expire” from your record. I can’t count the number of times I have been asked “how long will this stay on my record?” The answer is always- “Forever.”

Georgia law now allows Record Restriction (the new name for expungement) after acquittal at trial as long as you are not convicted of any related charges. If you are innocent of the charges against you, and you go to trial and win, then, of course, you won’t have to complete any conditions of punishment. However, trials are time consuming, expensive, and it can take months to get an opportunity to be heard. That means that even if you are innocent and are found not-guilty by a jury, you will still have a long period of time to answer questions about this arrest whenever you apply for school or a job and when your potential employer runs your criminal history. However, if you complete a pretrial diversion program (usually in less than 3 months) and get your arrest record restricted, then the only people who will be able to see that this arrest ever happened will be law enforcement officials.

So who is eligible for Pretrial Diversion? It varies somewhat from county to county and court to court. Some courts will only allow someone who is represented by a lawyer to participate in the program. Additionally, some prosecutors may try to get you to enter a guilty plea to your charge (and thus pay a higher fine, spend more time on probation and pay more probation supervision fees, and have the offense on your record as a conviction for the rest of your life) unless you know to ask for Diversion. When I was a prosecutor, I would offer diversion to anyone who qualified, whether they were represented by an attorney or not and whether they knew to ask for it or not, unless there was an aggravating circumstance in their case. There was no quicker way to be exempted from the diversion program in my courtroom than by being rude or uncooperative with the police.

Assuming there are no aggravating circumstances, someone who is accused of a “minor misdemeanor” and who has never been arrested for anything in the past will be eligible for PTD. When you appear at your first court appearance (usually your arraignment) you may be given an opportunity to speak with a prosecutor before the judge takes the bench, or you may have to wait until the judge is in the courtroom, then be called upon to enter a plea before speaking with someone. Your best bet is to hire an attorney to represent you and handle all negotiations on your behalf, but if you don’t have a lawyer or just want to try it on your own, you want to plead NOT GUILTY at this point.

It is very important that you realize that NOT GUILTY is NOT the same thing as NO CONTEST or NOLO CONTENDRE. If you enter any plea other than NOT GUILTY, then you will be convicted, the offense will stay on your record forever, and you will be sentenced to several months (probably 12) of probation, a higher fine, community service, and other conditions. You will NOT be able to get the arrest expunged. So be very clear that you are pleading NOT GUILTY at this initial point and let them know that you would like to speak to the prosecutor. When you do get that opportunity to speak with the prosecutor, ask about the diversion program. If they do not offer it to you, ask why. If you feel like you should qualify but are not being offered the program, then you should ask for time to go hire a lawyer.

If the prosecutor agrees that your case is appropriate for the diversion program, you will be asked to sign a “Diversion Agreement” which is basically a contract between you and the prosecutor. Terms of this contract vary, but you will be required to pay a fee, report to a probation officer and pay a probation supervision fee for a few months, possibly perform a number of hours of community service, possibly attend a class (alcohol and drug evaluation for Possession cases, Anger Management for battery cases) and other conditions such as staying away from a certain other conditions such as staying away from a certain place or person, or refraining from drug and alcohol use and submitting to random screens.

In exchange for your promise to fulfill these conditions, the prosecutor agrees that once you do, he or she will dismiss your case. Most of the time (and you will want to clarify from the beginning whether or not this is the case) you will be eligible for expungement once your case has been dismissed. This will be a separate process where you take your dismissal paperwork to the headquarters of the police department that first arrested you, pay a small fee (usually $35) and fill out some paperwork to initiate the process. Also, most diversion programs will terminate as soon as you get all of the conditions done, so if you finish everything in the first month, you may not have to report for the second and third months. This varies by court as well, so read your diversion agreement carefully.

Understandably, some people have a hard time agreeing to do conditions that they see as “punishment” for an offense for which they are innocent. No one likes being accused of something we didn’t do, and we certainly don’t like having to pay the consequences for it. However, when you look at your situation in the long term, you have to balance the benefit of expungement against the possibility that a jury could possibly find you guilty even though the evidence shows that you didn’t do anything wrong. Also think about the time, money, and high blood pressure involved in taking your case all the way to trial. Then, even if justice is served and you are found not guilty, the arrest stays on your record forever and you will have to answer questions about it every time you apply for a new job.

Of course, I am happy to take a case to trial when my client is innocent and wants his or her day in court. If that is the course you elect to take, I will put the full weight of my experience behind you to present your case to a jury of your peers.

Diversion is a great deal whether you are truly innocent or if you really did make a mistake and commit the offense for which you are being charged.

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