What is a Diversion and Should I Accept it?  

Have you been offered a diversion, and have no clue what it is or if you should accept it? You are not alone.  

A diversion, in the simplest terms, is the State’s offering to withhold prosecution of a criminal offense for a time period as the parties agree to certain conditions that must be met, and if they are, a dismissal of criminal charges will follow. In other words: a diversion agreement is a conditional dismissal. Sounds promising, doesn’t it? Almost in every scenario it is, and it almost always makes sense to accept these types of agreements — but there are considerations to keep in mind before signing up for one.  

Diversions are governed by Indiana Code 33-39-1-8: Withholding of Prosecution. That statute lays out that a prosecuting attorney (the State of Indiana), may “withhold prosecution against an accused” if: 

1. The defendant is facing a misdemeanor, level 6 felony (the lowest felony) or a level 5 felony (second lowest felony)[some crimes/charges are excluded]; 

1. The accused agrees to abide by certain terms of a diversion program offered by the prosecuting attorney in that county; 

1. The agreement is captured on a written instrument/contract/agreement signed by the defendant (and their counsel if applicable), the prosecuting attorney, and is filed in the court where the case is pending; 

1. Conditions may include:  

1. Payment of fees to the county clerk pursuant to IC 33-37-4-1 (for those that are indigent or can’t pay fees there may be waivers available); 

1. Paying restitution to a victim or their family; 

1. A requirement to work faithfully or seek employment, pursue a course of study, etc.;  

1. Undergoing certain evaluations: medical, mental, or substance abuse related; 

1. Paying child support and support dependents as necessary; 

1. Issuing a standing no contact order or an order requiring that the accused not have contact with the alleged victim; 

1. Provide to the prosecutor’s office all changes in address and employment; 

What’s interesting is that certain prosecutor’s offices add their own terms, and these conditions can be quite impactful. For example, the following list, though not exhaustive, lists a few things you will see in a typical diversion: 

1. Waiver of Criminal Rule 4: a rule that the state must prosecute you within a one-year period of the arrest. This means that if you fail the diversion, they can still move forward with the prosecution even after a year.  

1. Admission of Guilty or of Probable Cause: this is by far the most impactful. This means that you are admitting to the truthfulness of the allegations against you. That’s a big deal if you were to fail the terms of the diversion and the state moves forward with the prosecution — this is especially the case when you take into consideration ‘3.’ below.  

1. The Admission can be Introduced in Subsequent Prosecution as Evidence of Guilt: coupled with paragraph ‘2.’ Not only will they introduce the diversion if you fail the terms and choose to move forward with trial, but the jury will also hear you admitted you did it. That makes winning a case after a failed diversion nearly impossible.  

1. Additional Terms Not Listed in Statute: diversions are viewed as contracts. As such, the parties are able to agree to almost any term. This can include things like community service, return of property, stay away orders, drug testing, agreements not to consume any drug (accept prescriptions) and/or alcohol, reporting to a diversion officer routinely, writing a letter of apology, attending classes or seminars, not picking up any new criminal cases, reporting any contact with police, etc. Again, this isn’t exhaustive but gives you a taste of what might be included in a typical diversion.  

When might you not want to take a diversion? 

• If an admission will result in a violation of probation or violate the terms of another diversion or sentence; 

• If there will be immigration consequences; 

• If you can’t admit to something you didn’t do and/or you don’t agree there was probable cause; 

• If for some reason you don’t believe you can abide by the terms and will ultimately fail the diversion, and the admission will hurt you long term; 

• If you and your attorney believe there is another means to get a dismissal or a not guilty; 

While diversions can be a bit of a pain, the end result is marvelous — if you abide by the terms of the agreement and don’t pick up any additional criminal charges while the diversion is pending, the case will get dismissed! That’s a rare thing in a criminal case. And, as of the writing of this blog, Indiana allows for automatic expungements 60 days after the dismissal. That means it is off your record on the 61st day or close thereafter.  

It is important that if you have an attorney, that you go over the details of any diversion with them. While they are an amazing asset and pave the way for a brighter future for you, there can be terms you need to look out for. If you have any questions about diversions or any other criminal matter, 24/7/365 you can give the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower, LLC, a call or email today at 3178700019 or [email protected].