So you have been arrested and charged with a misdemeanor. Ā You are likely a little scared and confused. Ā Most of all you are concerned about have a criminal conviction on your record. Ā Before you lose too much sleep, you might just qualify for a Diversion Agreement also referred to as Pre-trial Diversion. The Indianapolis Criminal Defense Attorneys at Banks & Brower take a look at diversion in this blog and how it may help you.
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call us: 317-870-0019What is Pre-trial Diversion?
Pre-Trial Diversion is a statutory creation that gives the prosecutor the ability to establish a pre-trial agreement allowing a person to have their charges dismissed upon successful completion of certain conditions.
Do I qualify for a Pre-trial Diversion?
The answer is, it depends. Ā The statute that created pre-trial diversion specifically excluded a few crimes. Drunk driving (OWI or OVWI) is excluded from diversion programs as a matter of law. Ā (there is another statute that allows an OVWI to be deferred, but that is a different blog for another day). Ā Additionally, crimes involving driver’s with a CDL license are also excluded. Ā Otherwise, if you are charged with a misdemeanor then you may qualify. Ā If you do qualify then it is up to the discretion of the prosecutor to decide whether to offer it to you or not. Ā Factors that prosecutors generally consider are:
- nature of the crime;
- whether or not there was a victim involved;
- amount of financial loss or restitution owed to a victim;
- the criminal history of the defendant;
- the strength of the Prosecutor’s case;
- how busy the Prosecutor’s office is handling more serious offenses
If I’m Offered a Pre-trial Diversion what should I expect?
A pre-trial diversion usually requires the completion of certain items in order for a Defendant to successfully complete it. Ā Some of the items a prosecutor commonly includes in a pre-trial diversion are:
a) payment of diversion fees (if you can’t afford them the Prosecutor should still allow you to enroll in the program)
b) Ā completion of community work service
c) Ā completion of a related educational program (drug, parenting, alcohol classes, etc.)
d) refraining from the use of drugs or alcohol
e) not getting arrested for a specific period of time
f) drug screens
The List of things a Prosecutor can include in their diversion program are very broad. Ā Each county Prosecutor’s office has control over their diversion program and they all vary based on location. Ā The most common diversion requirements utilized by prosecutors are community service and requiring the attendance in some related educational class. Ā Generally speaking, larger metropolitan counties tend to be more lenient with their diversion agreements than smaller more rural counties.
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Completing Your Pre-Trial Diversion Agreement
Normally, if you complete all terms of the agreement and stay out of trouble, your case will be dismissed.Ā This is why diversion agreements tend to be very popular, as they allow you to avoid creating a criminal conviction on your record.Ā Most counties have a diversion coordinator who will provide you with the agreement and terms you must follow.Ā Once you pay the fee, you will need to complete all other terms and avoid future arrest.
Navigating the process and establishing that you are a strong candidate for diversion requires careful preparation. If you have been charged with a misdemeanor, contact the Indianapolis criminal defense attorneys at Banks & Brower to discuss whether a diversion agreement may be appropriate for your situation.
Frequently Asked Questions
What Offenses Qualify for Pre-Trial Diversion?
Most misdemeanor charges in Indiana qualify for pre-trial diversion, though several categories are excluded by statute.
Understanding what is a diversion program starts with knowing who qualifies. Indiana law gives prosecutors discretion to offer a pre-trial diversion agreement to eligible defendants. The following offenses are excluded from consideration:
- Operating a vehicle while intoxicated (OWI/OVWI)
- Charges involving a driver holding a commercial driver’s license (CDL)
Beyond those exclusions, eligibility is not automatic. Prosecutors weigh several factors before extending an offer, including the nature of the offense, whether a victim was involved, the defendant’s prior criminal history, and the overall strength of the case.
What Are Some Pre-Trial Diversion Programs?
Pre-trial diversion programs vary by county, but most require a combination of conditions the defendant must satisfy within a set timeframe. Common program requirements include:
- Community service hours
- Completion of an educational course related to the offense (drug, alcohol, parenting, or anger management classes)
- Regular drug or alcohol screenings
- Refraining from any new arrests during the program period
- Payment of diversion fees
Marion County and other larger metropolitan counties in Indiana tend to offer more structured and accessible programs than smaller rural counties. Each prosecutor’s office controls its own program, so requirements differ by jurisdiction.
How Do I Apply for a Pre-Trial Diversion Program in Indiana?
Application goes through the prosecutor’s office, not the court, and typically begins after charges have been filed.
An attorney can assess whether diversion is a realistic option given the specific charge and the defendant’s background, then open communication with the assigned prosecutor. If the prosecutor agrees to offer diversion, the defendant receives a written agreement outlining every condition that must be met. Most counties assign a diversion coordinator who manages enrollment, tracks compliance, and confirms completion. Retaining counsel early increases the likelihood of being considered, particularly when the case involves any aggravating circumstances.
What Does Participation in a Pre-Trial Diversion Program Cost?
Fee amounts vary by county and are set at the prosecutor’s discretion. Defendants who cannot afford the fee should not assume that disqualifies them. Indiana prosecutors are expected to allow enrollment even when a defendant demonstrates financial hardship, though this should be raised directly and documented. Additional costs may include fees for required classes or drug screening, which are separate from the diversion fee itself.
What Happens if You Fail to Complete a Pre-Trial Diversion Program?
Failure to complete a pre-trial diversion program typically results in the original charges being reinstated and the case proceeding through the standard criminal process.
The agreement is a contract. Missing required classes, incurring a new arrest, failing a drug screen, or not completing community service hours can all constitute a breach. Once the prosecutor declares a violation, the defendant loses the benefit of the agreement and faces prosecution on the underlying charge as if diversion was never offered. Any fees already paid are generally not refunded. This outcome underscores why having an attorney review the agreement terms before signing matters as much as securing the offer itself.
Banks & Brower is an Indianapolis-based firm focusing in criminal defense, personal injury, and family law. With over 80 years of combined legal experience, we bring valuable knowledge and insights to every case. Our clients face challenges such as major felony charges, DUIs, and sex crimes. We listen carefully to every client and craft personalized strategies to achieve the best possible outcomes. Banks & Brower is the law firm Indianapolis residents trust in times of need.
