If you are facing a criminal charge, you are likely wondering how you can avoid a criminal record and jail time. For certain cases and situations, pre-trial diversion might be the best way to keep your criminal record clean and stay out of jail.
Pre-trial diversion is a program that allows an individual who is charged with a criminal offense to enter into a form of pre-trial probation. During this time period, they will be expected to follow specific rules and perform certain tasks as required by the judge. Prosecutors offer pre-trial diversion for select cases where they believe the defendant is not likely to reoffend or commit any further acts of violence.
In making this determination, a prosecutor will review all of the available facts in the case, including the defendant’s prior history. All pre-trial diversion agreements must be in writing. If you have specific questions related to your case, then it is important that you speak to an experienced criminal defense attorney.
How Does Pre-Trial Diversion Work in Indiana?
Pre-trial diversion is never guaranteed for any charge. Under Indiana law, a prosecutor may consider several factors when deciding to offer pre-trial diversion to a defendant.
A prosecutor may consider:
- The nature and severity of the crime
- Whether the Defendant has past criminal trouble
- Whether the Defendant will cooperate and benefit from pre-trial diversion
- Whether the Defendant is likely to re-offend
- Any special or mitigating circumstances
- And more (see Indiana Code 33-39-8-5(6) for a full list of factors)
An experienced criminal defense attorney can properly assess your case to determine if your charge might be eligible for pre-trial diversion. They can also assist in negotiating the pre-trial diversion with the prosecutor.
What Are the Requirements for Pre-Trial Diversion?
Only certain cases qualify for pre-trial diversion in Indiana. In all cases, a defendant must admit responsibility for their crime to the satisfaction of the prosecutor and judge to be eligible for pre-trial diversion. Diversion is also only generally available to first-time, nonviolent offenders.
Under the Indiana Code 33-39-1-8, the following cases are not eligible for pre-trial diversion:
- Level 1 felonies
- Level 2 felonies
- Level 3 felonies
- Level 4 felonies
- A commercial driving offense
If you are charged with any of the crimes listed above, then the prosecutor cannot offer you pre-trial diversion. Pre-trial diversions are only generally considered for lower-level offenses, and you may need to convince the prosecutor that you deserve diversion treatment. You should not have this conversation with the prosecutor, as things you say could be used against you in court.
What Happens When Pre-Trial Diversion is Granted?
When the court grants pre-trial diversion, the defendant will agree to abide by several conditions for a specified period of time. The defendant can be required to do things such as pay fines, do community service, maintain employment, and regularly drug test. They will also be required to pay restitution for any damage or injuries caused by their conduct.
It is common for people on a pre-trial diversion to have to check in with the court periodically. In most cases, pre-trial diversion lasts for a period of one year. If the defendant completes the terms of his or her pre-trial diversion contract successfully, then the original charges will be dismissed. The defendant will maintain their clean criminal record.
What Happens If You Fail to Complete Pre-Trial Diversion?
If you fail to complete pre-trial diversion successfully, then your original criminal charge will be refiled against you, and you will be back to square one. You will then have to face all of the potential penalties for a conviction of your original charge, including the potential for jail. You will also lose the opportunity to keep a clean criminal record — unless you are able to win your case at trial or get it dismissed by the judge.
Pre-trial diversion is a second chance that can help you avoid the long-lasting consequences of having a criminal record. If you are granted pre-trial diversion, remember that it is likely your one and only chance for diversion.
Contact an Indianapolis Criminal Defense Lawyer
If you have questions about whether or not you qualify for pre-trial diversion, then it is important that you speak to an experienced criminal defense attorney immediately. We offer free consultations so you can have your questions answered by a seasoned professional.