Maybe you’ve just been arrested for a common crime such as possessing a small amount of a narcotic drug, or charged with  misdemeanor domestic violence, or cited for  having a fake identification card,  or you’re under 21 years of age and were  accused with  driving with alcohol in your system, or summoned to court on a minor in possession of alcohol charge. Understandably you’re anxious about it.

One of the first things you will want to ask any lawyer, is whether the prosecutor might willing to offer something called “diversion” in your case and wrap up your case comparatively quickly with a dismissal.  

“Diversion” is a recognized court procedure, common in Arizona, but  that is discretionary, and controlled entirely by the prosecutor, but that when offered  and completed allows you to have all criminal charges entirely dismissed. See e.g. ARS §9-500.22.

That’s right: dismissed.  I know that it sounds too good to be true, and diversion isn’t offered in all cases,  or by all prosecutors, but it’s one of the first things I try to explain to clients when they call. 

And it is one of the most important considerations in criminal law, especially when misdemeanors are involved.

Diversion Offered in Almost All Courts

Every prosecutor’s office offers diversion in some cases. This would include Tucson City Court, Pima County Consolidated Justice Courts,  Sahuarita Town Court, Green Valley Justice Court, Oro Valley Town Court, and Marana Town Court. 

But diversion is entirely the prosecutor’s discretion.  To be sure, the prosecutor will look at your past criminal history, if any, the nature of the charges, the facts and surrounding circumstances, the views of the victim, and the office policy.  

Types of Diversion:

There are three basic types of diversion: (1) Post-plea or conditional guilty plea diversion; (2) pre-plea deferred prosecution diversion; and (3)  and informal diversion.

Post-Plea Diversion

The Tucson City Prosecutor’s Office generally offers as a matter of policy only  (with a few exceptions)  post-plea or conditional guilty plea diversion.  This means that in order to accept diversion, you the defendant, must enter a conditional guilty plea, in open court but the judge suspends entry of judgment. This can be a tough concept to wrap your head around if you have never encountered it before .  It seems like you are pleading guilty to something  and  in a very real sense you are.

Post-plea diversion is not for everyone.  Because post-plea diversion requires you to admit on the record the material elements of a crime,  that admission can be used against you for certain purposes.  For example, if you are not a citizen of the United States,  immigration authorities consider post-plea diversion a “conviction” for immigration purposes, even where the judge was dismissed the case with prejudice.  

Pre-plea Diversion or Deferred Prosecution

With pre-plea diversion or deferred prosecution, there is no requirement that you make any admissions in open court.  Rather prosecution is “deferred,” meaning your case is continued on the calendar for a number of months, during which time you may complete your classes.  Judges and prosecutors are generally accommodating where this type of diversion is offered.  This is a good and preferred  form of diversion that avoids the admission in open court to criminal culpability as a “condition” of the charges later being dismissed.

Informal Diversion

Sometimes, with hard work, even when your case doesn’t fit the parameters and policies prosecutor’s offices  have for their diversion programs,  your lawyer can sometimes convince a reasonable  prosecutor to allow you to enjoy the benefits of diversion even if it falls outside her office’s diversion policies.    This will almost always be pre-plea diversion or deferred prosecution. And will always require you taking some classes and occasionally doing community service.  Lawyers work hard to convince prosecutors to agree to this sort of arrangement, and prosecutors  are often reluctant, and may to seek the approval of supervisors before it can be agreed to. 

Diversion in Particular Cases

Not all cases are diversion eligible.  For example, for DUI’s, diversion is almost never an option, as disappointing as that may be.  But there are types of cases where diversion is often offered.

Domestic Violence

All prosecutorial agencies in Tucson and surrounding, offer diversion for certain domestic violence misdemeanors.  I want to emphasize that the decision to offer diversion is entirely the prosecutor’s.  Because it results in dismissal, prosecutors are careful when and how they offer diversion on domestic violence cases.  For example if there is an injury, or a weapon, or the accused has a prior criminal history,—especially for prior domestic violence–or the victim opposes dismissal diversion may not be offered.  

But for first time offenders accused of non-injury  misdemeanor domestic violence, diversion is often offered,

Terms of Domestic Violence Diversion: 26 Classes

Beware that  in almost all cases where diversion is offered for misdemeanor domestic violence charges, the prosecutor will require a full 26 Anger Management & Domestic Abuse Classes through a State and court certified provider of such classes.  The classes can be a large commitment of time for you,  and may stretch out for many months, but they almost always result in complete dismissal of all charges.

False Identification & Other Charges

Similarly, diversion is often offered, in the discretion of the prosecutor  for  shoplifting,  possession of fake identification, minor in possession of alcohol and other common misdemeanors.

Conclusion

Diversion is a powerful tool in criminal procedure to get all charges dismissed.  It is only offered by prosecutors in specific cases. While all prosecutorial agencies in Pima County have some form of diversion, the policies and procedures differ.  But it is something you should think about at the outset of your case.