What is Pretrial Diversion?
Pretrial diversion is a program that allows a defendant to work to keep charges off their criminal record. In exchange for the defendant agreeing to the program’s requirements, the prosecutor agrees to dismiss the charges altogether.
This can be accomplished because the district’s acting U.S. Attorney has the discretion to divert any case against you, as long as you are not:
- Accused of an offense which, under existing Department guidelines, should be diverted to the State for prosecution;
- A person with two or more prior felony convictions;
- A public official or former public official accused of an offense arising out of an alleged violation of a public trust; or
- Accused of an offense related to national security or foreign affairs.
How Does Pretrial Diversion Work?
Most pre-trial diversion agreements come with a dismissal at the end of your pretrial diversion term, meaning your case is dismissed after successfully completing the pretrial diversion program. However, some programs will dismiss the case upfront and only recall the case if you do not successfully complete the pretrial diversion program.
A pretrial diversion program works by entering into a written agreement that can be enforced by the court once the defendant successfully completes the program.
Texas pretrial diversion programs are usually tailored to the charges you face. For example, suppose you’re charged with a drug-related offense. In that case, you will likely have to complete drug education-related classes and possibly submit to random drug testing during the pre-trial diversion duration. This is to prove to the court that you have no illicit substances in your system.
Another condition for the program (in addition to classes) is that you must not get rearrested during your pretrial diversion term.
Who is Eligible for Pretrial Diversion?
The requirements vary from county to county, but a frequent condition in most counties is that the program is only available to first-time offenders who are charged with a non-violent crime. For example, assault cases, cases of a sexual nature, and other cases involving violence are not usually eligible for pretrial diversion.
This does not mean that every nonviolent first-time offender is eligible. The most frequent types of charges eligible for pretrial diversion in Texas are misdemeanor charges and possession of controlled substance offenses.
In summary, to qualify, the following generally must all be true:
- This is your first criminal offense
- This is your first time enrolling in a pretrial diversion program
- The crime was a misdemeanor or low-level felony
- The crime is not a sex crime (except for prostitution) or domestic violence
What Offenses Are Eligible for Pretrial Version?
Offenses that are potentially eligible for pretrial diversion include:
- credit card and debit card abuse
- criminal mischief
- false information
- possession of a controlled substance (POCS)
- securing execution of documents by deception
- fabricating physical evidence
- unauthorized use of a motor vehicle (UUMV)
- and even DWI in some instances for 1st-time offenders
What is the Difference Between Pre-Trial Diversion and Probation in Texas?
The most significant difference between the two is that upon successful completion of a pre-trial diversion program, you’re automatically eligible for an expunction in the state of Texas.
Upon completing probation in Texas, you are allowed to seal your record in most instances, but only after the statutory period of waiting, which can range from 2 to 7 years, but you can never expunge your record.
It’s important to note that an expunction is a much greater relief than having your records sealed. You should also be aware that some counties will restrict your expunction on pretrial diversion programs, particularly in DWI cases.
Need to Know More About Pretrial Diversion? Contact the Law Office of James Gill
It’s vital that you have an experienced Austin criminal defense attorney who is familiar with all Pretrial diversion programs in the state of Texas to help you navigate through your legal situation.
If you believe you may be eligible for pretrial diversion, it is essential to speak with an attorney experienced in each county’s requirements regarding Texas pretrial diversion programs. At the Law Office of James Gill, we have almost 20 years of experience with Pretrial diversion, and we’d love to talk to you. Please give us a call to book your free consultation today.