Imagine you’re on the brink of being pulled into the legal system for a minor crime—some stupid mistake you wish you could erase. Instead of facing a courtroom, jail or work program time, and a permanent record, there’s a lifeline—essentially a "get-out-jail-free" card called “diversion.”

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Courts and jails are overcrowded. Diversion provides an alternative to the traditional court process and helps reduce this burden and offers individuals a chance to avoid severe consequences. Depending on the case, it also broadly aims to address the root causes of the crime—such as substance abuse or anger issues—rather than solely punishing the offender.

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There are several different types of diversion. For example, specifically for drug offenses, under Penal Code §§1000–1000.65, those charged with drug-related crimes (simple possession, not sales) may enter an outpatient drug treatment program (group classes, generally) instead of being prosecuted. Successful completion of the classes results in dismissed charges and no criminal record.

There are several other different types of diversion (e.g., military diversion, mental health diversion, and plenty more). The following summary, however, broadly explains the basics to know.

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How Does it Generally Work?

If granted diversion, you will likely be required to attend some form of counseling, classes and/or community service. Complete these requirements and your charges are dismissed before you even have to enter a plea. It’s like hitting a legal reset button! However, if you don’t finish the program, you could face conviction, jail (or jail alternative), and a criminal record.

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Misdemeanor Diversion Can Be Offered By The Prosecutor

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Local prosecutors can offer diversion programs for other misdemeanors under Penal Code §§1001–1001.9 and 1001.50–1001.55. However, some offenses, like DUI, are ineligible. To qualify, defendants must meet specific criteria: no prior felony convictions, no misdemeanor convictions in the past five years, no revoked probation or parole without successful completion, and no diversion granted in the last five years. Also, many misdemeanors are excluded from eligibility, such as misdemeanors requiring mandatory jail time or sex offender registration. Although this diversion offered by the prosecution can be good option, the bigger issue is that it's often not an option. Unless your offense was very minor (for example, petty theft around $100 with no criminal record, for instance), many DAs reject offering diversion. But don't worry because the next version of diversion doesn't require the DA's approval. 

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Court-Initiated Misdemeanor Diversion (Convince the Judge, Not the Prosecutor)

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Even if the prosecutor objects, which happens frequently, it doesn’t matter if you can convince a superior court judge that you deserve misdemeanor diversion (aka “court-initiated diversion” under Penal Code §§1001.95–1001.97. Of course, not every misdemeanor is eligible. For example, serious misdemeanors like domestic violence or crimes requiring sex offender registration are excluded.

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But many standard misdemeanors are fair game for this version of diversion. Even if you want to fight your case, it would be foolish to not at least consider pursuing it. If you come to court prepared with strong grounds for why you deserve this form of diversion—which is often the least burdensome and best version—then this is a great way to keep your record clean.

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Many judges will require or expect a written motion. Some are satisfied with oral argument only. In general, a well-written, persuasive motion for court-initiated diversion is your best bet. If granted, you may be given up to 24 months to complete the conditions of your diversion, which often includes community service at a nonprofit organization. The judge may also require classes, restitution, or other relevant actions. Successful completion, like the other forms of diversion mentioned above, results in dismissed charges and no criminal record.​ But fail to comply with the program’s conditions, and the judge can hold a hearing to decide whether to revoke diversion and continue criminal proceedings.

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When to Request Pretrial Diversion (My General Advice)

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Request pretrial diversion early, even as soon as the arraignment, potentially. However, I strongly advise folks to have a lawyer first review the evidence against them. Even seemingly strong cases can have issues your lawyer can challenge. Plus, you have the right to contest the evidence or bring pretrial motions (e.g., motions to suppress evidence) before accepting diversion, so understanding your options early is crucial.

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Legal Services Options

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I can interview you, draft, and file the petition (motion) for diversion. Also, I can represent you in court and seek to persuade the prosecutor and/or judge why you deserve diversion. I know what they want to hear and, equally important, what they don't want to hear. 

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Additionally, if you're on a tighter budget and seeking more tailored legal services, one option is I can draft the motion for you and guide you on how to achieve diversion without me going to court on your behalf (in which case my fees would, of course, be reduced). 

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Call for a FREE consultation to discuss options. My goal is to help you.

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CONTACT MISDEMEANOR DIVERSION LAWYER 

I prefer you fill out the following info. You can call my office as well at 844-ARI-RIEF. 

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