A drug diversion program works by removing or “diverting” first-time, low-level drug defendants from the criminal justice system. These defendants are ordered to complete a rehabilitation program. If successful, the charges are dropped, dismissed, or sealed. If you fail to complete the program, however, the prosecution resumes and often goes straight to the sentencing phase.
What is a drug diversion program?
A drug diversion program is an alternative to the criminal justice system. It redirects, or diverts, eligible defendants who have been charged with low-level drug offenses out of court. They get redirected into a diversion program.
In many jurisdictions, defendants have to enter a guilty plea or plead no contest to the drug offense in order to become eligible for diversion. The drug court or superior court would then suspend your sentence. You would then participate in the diversion program. If you complete the course, the drug case would be dismissed. If you fail to complete the course, the suspended sentence for the criminal case would be imposed.
In other jurisdictions, eligible defendants can enter a diversion program without pleading guilty or no-contest to the charges. In these states, if you fail the diversion program, the charges would still be resumed. However, you have the opportunity to defend against them. You would not have already pled guilty to the offense.
Finally, some jurisdictions do not have drug diversion programs, at all.
Who is eligible for one?
Eligibility for a drug diversion program will depend on the state. However, these programs are generally limited to first-time drug offenders. If you have a prior criminal conviction – particularly for a drug-related offense – diversion is generally not an option. In some jurisdictions, even a prior arrest will make you ineligible for a drug diversion program. Generally, you can only go through a drug diversion program once in your life.
Additionally, drug court judges must also be of the impression that you would benefit from the diversion program and that public safety would not be at risk.
What drug crimes are eligible for a diversion program?
Which drug offenses are eligible for diversion will also depend on the state. Each state’s drug diversion statute will usually list the eligible offenses. These offenses are generally:
- non-violent,
- misdemeanors, and
- restricted to drug offenses for personal use, also known as “simple possession.”
For example, in one state, the following criminal charges are eligible for drug diversion:
- possession of a controlled substance,
- unlawful possession of marijuana,
- unlawful cultivation of marijuana for personal use,
- possession of drug paraphernalia,
- aiding or abetting the use of a controlled substance,
- possession of a forged prescription to procure controlled substances for personal use,
- unlawful possession of prescription sedatives,
- possession of methamphetamines for personal use,
- being under the influence of a controlled substance,
- possession of an open container of marijuana in a motor vehicle,
- possession of toxic substances for “huffing,”
- lewd conduct related to being under the influence of a controlled substance, and
- solicitation of someone to commit a criminal offense in order to facilitate your personal use of narcotics.[1]
Occasionally, states will include driving under the influence (DUI) as a diversion-eligible offense.
Note, though, that any violent crimes associated with the drug offense, like domestic violence, can make you ineligible for the court program.
What are some common requirements for the program?
Drug diversion programs require you to comply with a list of requirements over the term of the program. Some of the most common requirements of these programs include:
- paying for the costs of the program and court costs,
- regularly checking in to a police officer, probation department, or pretrial diversion program officer,
- completing a substance abuse program or a drug treatment program,
- undergoing mental health counseling or drug abuse therapy,
- completing a drug addiction course,
- performing community service,
- paying victim restitution,
- consenting to random drug testing,
- avoiding known drug users,
- not getting arrested or charged with another crime,
- attending classes, and
- completing vocational training.
Drug diversion programs frequently last a year or longer.
The specific requirements for drug diversion can vary on a case-by-case basis. The exact terms of the program are extremely important. This is especially true if you have to plead guilty in order to participate. You are giving up your right to defend yourself at trial. If the terms of the drug diversion program are too difficult, the decision can backfire.
What happens if I complete the program?
If you complete a drug diversion program, your drug case goes back to drug court. There, prosecutors and the judge will dismiss the charges against you.
In some states, the case and the arrest records are automatically expunged after a successful completion of diversion. In other states, you have to petition to have them sealed. Doing so can clear your criminal history. Other people will not find your criminal record, even during certain background checks. This can make it less difficult to move on with your life.
A criminal defense attorney from a reputable law firm can help you get an expungement.
What happens if I fail it?
If you participate in a drug diversion program but fail to complete it or violate one of its terms, the drug charges will be resurrected by the district attorney’s office.
At this stage, there is a big difference between the states that offer diversion programs.
Some states require you to plead guilty to the offense in order to become eligible for the drug diversion program. In these states, your drug charge will resume in court. However, you will have already pled guilty to the offense. You will not have an opportunity to challenge the prosecutor’s case against you. Your case will resume at the sentencing hearing. The only question at issue will be what penalties the court will impose. It will generally be the sentence that was suspended by the court, though it can be altered.
Some other states make diversion available without pleading guilty. In these states, if you fail the diversion program, your case will resume where it left off. You will still have the opportunity to defend yourself.
Are these programs worth it?
Drug diversion programs may or may not be in your best interests.
On the one hand, they are a great way to keep your criminal record clean. They can also give you the opportunity to avoid some of the harshest penalties that come with a conviction, like jail time.
On the other hand, though, they are a risk. You have to successfully complete the program in order to benefit from it. If you are not confident that you can complete the program, they are a significant threat to your future. This is especially true in jurisdictions that require you to plead guilty in order to become eligible.
A big factor is often the strength of the prosecutor’s case against you. If law enforcement has gathered overwhelming evidence that you committed the crime, diversion can be more enticing. However, if the case against you is weak, but you would have to plead guilty to it in order to become eligible for diversion, it may not be a wise choice.
It is extremely important to talk with a defense lawyer before making this decision.
