So you have been charged with a low level felony or a misdemeanor and you absolutely cannot have a conviction on your record, now what? A diversion or deferral might be something that could work for you depending on a number of factors.
The law in Indiana (IC 33-39-1-8) provides that those who have committed low level crimes or are first time offenders are sometimes able to dismiss their charges. This is called a diversion and is available at the Prosecutor’s discretion. A prosecuting attorney may withhold prosecution against an accused person if:
(1) the person is charged with a misdemeanor, a Level 6 felony, or a Level 5 felony;
(2) the person agrees to conditions of a pretrial diversion program offered by the prosecuting attorney;
(3) the terms of the agreement are recorded in an instrument signed by the person and the prosecuting attorney and filed in the court in which the charge is pending; and
(4) the prosecuting attorney electronically transmits information required by the prosecuting attorney’s council concerning the withheld prosecution to the prosecuting attorneys council, in a manner and format designated by the prosecuting attorneys council.
Factors that prosecutors generally consider are;
- the nature of the crime;
- whether or not there was a victim involved;
- the 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 your situation meets the above standards, an experienced criminal defense attorney may be able to negotiate a pre-trial diversion for you which gives you the ability to drop your charges if you complete the terms of the agreement. Unfortunately, there are some offenses that are excluded from the chance of a pretrial diversions such as intoxicated driving and crimes involving drivers with a CDL License.
A pre-trial diversion generally requires a defendant to complete certain items. These can be whatever the Prosecutor feels fits the situation within the parameters laid out in IC 33-39-1-8.
A pretrial diversion agreement may include conditions that the person:
(1) pay to the clerk of the court an initial user’s fee and monthly user’s fees in the amounts specified in IC 33-37-4-1;
(2) work faithfully at a suitable employment or faithfully pursue a course of study or career and technical education that will equip the person for suitable employment;
(3) undergo available medical treatment or mental health counseling and remain in a specified facility required for that purpose, including:
(A) addiction counseling;
(B) inpatient detoxification; and
(C) medication assisted treatment, including a federal Food and Drug Administration approved long acting, nonaddictive medication for the treatment of opioid or alcohol dependence;
(4) receive evidence based mental health and addiction, intellectual disability, developmental disability, autism, and co-occurring autism and mental illness forensic treatment services to reduce the risk of recidivism;
(5) support the person’s dependents and meet other family responsibilities;
(6) make restitution or reparation to the victim of the crime for the damage or injury that was sustained;
(7) refrain from harassing, intimidating, threatening, or having any direct or indirect contact with the victim or a witness;
(8) report to the prosecuting attorney at reasonable times;
(9) answer all reasonable inquiries by the prosecuting attorney and promptly notify the prosecuting attorney of any change in address or employment; and
(10) participate in dispute resolution either under IC 34-57-3 or a program established by the prosecuting attorney. Ind. Code Ann. § 33-39-1-8 (West)
This list is not exhaustive but rather some of the possibilities a Prosecutor is likely to implement. Each county controls its own pre-trial diversion program. The most common diversion requirements utilized by prosecutors are community service and requiring the attendance in some related educational class. Larger metropolitan counties tend to be more lenient with their diversion agreements than smaller more rural counties.
If you complete all the requirements of your diversion and remain out of trouble you can have your case dismissed. Diversion agreements are essential when looking toward your future as a productive individual and the Indianapolis Criminal Defense Attorneys at Banks & Brower, LLC scan work with you to see if a diversion agreement may be appropriate under your case and circumstances.