What is a Diversion?

A criminal case in Arizona does not need to end with a trial or a plea agreement. Where you are charged with a low-level offense – a misdemeanor, for example – and have not had any previous convictions (other than traffic tickets, perhaps), you may be able to resolve your case through a diversion. Once completed successfully, a diversion results in the dismissal of your criminal charges so that no conviction appears on your criminal record (although the criminal records available to law enforcement agencies may still show that you were arrested for the charges and/or that you completed a diversion).  A diversion offers a much more favorable outcome for the defendant than a plea agreement and resolves a case more quickly than contesting the charges in court. A diversion has certain pitfalls, however, and defendants should be aware of these pitfalls before agreeing to accept a diversion.

Whether to Offer a Diversion Rests in the Discretion of the Prosecutor

diversionA prosecutor’s office will generally have its own policies about what defendants will be offered diversions and which ones will not. Unless a prosecutor’s office is not offering you a diversion in your case because of your race, age, ethnicity, or other similar personal characteristic, a court cannot compel a prosecutor’s office to offer you a diversion. Most prosecutors’ offices will make diversions available to offenders who have been charged with a crime that was not committed against another person (like a drug possession charge or traffic offense) and who do not have a significant criminal history.

How Does the Diversion Work?

 If the prosecutor offers you a diversion and you agree to accept the offer, the prosecutor’s office will prepare for you a diversion agreement that contains the terms and conditions of your diversion. Your diversion will remain in force for a certain time period, such as 12 months. During that time you may be required to attend certain classes or counseling, pay costs and fees that are assessed, refrain from further violations of the law, obtain employment, and/or report to a diversion officer as you are directed to do so. If you complete the terms and conditions of your diversion, at the end of the diversion period the prosecutor will enter an order declaring that your case be dismissed with prejudice. This means that you will not be convicted of the offense with which you were charged, and the prosecutor would be unable to bring those same charges against you again.

What if I Don’t Complete the Diversion?

diversionIf you cannot or will not complete the diversion as agreed, the prosecutor can revoke your diversion agreement and resume the prosecution of your case. In some diversion agreements you will have stipulated to the essential elements of the crime(s) with which you were charged. This means that your case will proceed to trial and the evidence that will be offered to support the charge is your own “admission” that you committed the crime. A significant number of diversions will also require you to waive certain statutory and constitutional protections that you might otherwise be eligible to assert.

In this way, diversions are a “two-edged sword”: Where a defendant can successfully complete the terms and conditions of the diversion, a diversion offers eligible offenders the opportunity to keep their records clear and avoid some of the direct and collateral consequences of a criminal conviction. But a defendant who is unable to successfully complete a diversion may find that by entering into such an agreement he or she has simply made it easier and less time-consuming for the prosecution to secure a conviction.