Generally speaking, the offer of diversion in a criminal case is a good thing. The eligible person facing criminal prosecution may have their charges dismissed and their record restricted (aka expunged, expungement). Even when terms are tough, the time and effort necessary to complete criminal diversion beats having a criminal conviction. Plus, there’s jail time and/or probation, fines, restitution, community service, drug screenings, etc., to think about. Basically, being convicted will almost certainly be as onerous, if not more so, than criminal diversion. Plus, you end up a convict.
Though I have seen prosecutors offer relatively easy sentence terms just to secure a guilty plea. That way they clear their calendar. How does a prosecutor balance moving cases versus getting hard plea terms? They figure the defendant will mess up probation. Then, they’ll ask the judge to throw the defendant in jail at the revocation hearing. Be that as it may, the point here isn’t about prosecutor psychology. It’s not about consequences of a criminal conviction. Rather, it’s not all diversion offers are created equal.
Don’t Just Agree to the Prosecutor’s Criminal Diversion Demands
Recently, the State offered my client criminal diversion on a slew of misdemeanor charges and one felony. Given the case facts and my client’s professional situation, being a convicted felon was untenable. Being convicted of a bunch of misdemeanors wouldn’t be great, either. While a judge or jury likely would convict them of the misdemeanors, the felony drug charge was very contestable.
While contestable, the prosecutor sought a waiver of testing of the felony drug charge evidence. And also admit to possessing the drugs. That’s was a high price for the chance of getting their charges dismissed and record expunged. Why?
The arresting police officer admitted to me they weren’t sure where the evidence was. Nor did they know if a test had confirmed the alleged drugs were actual contraband. If my client took the criminal diversion offer as-is, but then didn’t successfully complete it, the waiver could really hurt. What if after failing at diversion we decided to go to trial? It is likely the trial court would uphold the waiver. The waiver would then create the presumption my client was in possession of the felonious material.
At trial, the District Attorney would present the signed waiver to the jury. They’d say, “No drug test, no problem. The defendant already admitted to what it was and whose it was.” It might have been a rebuttable presumption, but a presumption nonetheless. It would be like the Atlanta Falcons spotting the Tampa Bay Bucs a couple of touchdowns before kickoff.
We’d have to plead under the Conditional Discharge or First Offender statutes. Which wouldn’t look as good as a straight diversion dismissal. Yes, their record would still be restricted. But plenty of government entities and certain classes of employers can get past the restriction.
Clear Communication with the District Attorney
What was the solution? Sometimes there may not be a great answer. For instance, a Stinson plea is a comply or die scenario. The prosecutor offers the defendant criminal diversion. But if they fail, there is no trial. Judgment and sentencing were already pronounced. No withdraw of the plea is possible. But in the case I had, I went to the prosecutor and presented my concerns. And, I got their okay to reword the waiver. While it was my client’s waiver and we could word it however we liked, diversion is the prosecutor’s program. It was their offer to extend or pull. I let them know what I wanted and why.
The waiver actually signed relinquished a demand for testing of the alleged contraband for the purpose of criminal diversion. But not for trial. And, for the purpose of entering diversion, my client admitted to being proximate to the alleged contraband. But not in possession of it. Being next to illegal stuff is a relevant fact in a drug possession case. But it does not in and of itself make a person guilty of possessing said illegal stuff. Thus, if my client did go to trial on the felony, the playing field would be more even. The State would need to prove all elements of the charge of drug possession beyond a reasonable doubt.
Negotiate a Better Deal for Criminal Diversion
Prosecutors have tons of cases to deal with and they’re looking to make things as easy as possible on themselves. That’s understandable. I was a prosecutor myself. But how will they go about disposing of cases? They’ll look to not only get rid of cases by pleas and dismissals. But dismissals through diversion carry the possibility cases will reappear on their calendar. Prosecutors don’t like that. Most judges don’t appreciate that, either.
Waivers are a means of trying to make sure a criminal diversion case never comes back. And if it does, and if a trial is in order, then waivers put the defense in a worse position than before. As a criminal defense lawyer, it’s my job to get my clients good deals. To that end, diversion is great – criminal charges dismissed, criminal records expunged. But if possible, criminal diversion shouldn’t be accepted at too high a price.