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Diversion in Criminal Court

Diversion, in criminal law, means to change from a course of criminal prosecution to some alternative remedy that satisfies the district attorney’s need to punish the defendant and the defendant’s need to avoid jail or collateral punishments. To divert from prosecution means that the defendant can avoid the punishments associated with a particular crime by agreeing to certain conditions.

For example, if the defendant is charged with the crime of soliciting a prostitute (PC 647(b)(2)), the defendant might enter into a diversion program whereby the district attorney agrees to dismiss the criminal charges if the defendant fulfills certain conditions.

Diversion is offered by the district attorney only for lower-level misdemeanor crimes or for crimes where rehabilitation, as opposed to punishment, better serves the interest of justice and society. To this end, diversion is more common in cases involving simple possession of drugs, prostitution, petty vandalism, crimes committed as a result of mental illness, crimes committed by juveniles, and crimes caused as a result of the mental or physical trauma suffered by a military veteran.

NEW! PC 1001.95 Judicial Diversion

Diversion v. Prosecution: Diversion programs came about for several reasons: Diversions offers an opportunity for defendants who commit minor offenses to avoid the very harsh consequences related to their criminal conduct (beyond the punishment related to criminal prosecution), such as the loss of housing or social welfare benefits, the loss of a professional license or employment, and more. In addition, diversion programs help to relieve the court of backlogged cases while collecting fees associated with the diversion programs. Finally, diversion focuses on rehabilitation with a goal of reducing criminal recidivism. Prosecution without diversion is expensive in terms of expenditure of prosecution resources and can lead to unjust penalty for defendant’s charged with minor offenses. On the other hand, diversion will not be offered to defendants who have a criminal history that suggest punishment is better than rehabilitation or where the defendant has previously been offered, but failed, a diversion program.

Conditions of Diversion: Diversion programs have different conditions related to the defendant’s offense. For example, a diversion program in a prostitution case in San Bernardino County requires the defendant to enter into counseling classes, submit to HIV testing, pay a fine, and stay out of trouble for a period of time. Different crimes will carry different conditions that closely relate to the purpose of rehabilitation. If the conditions are fulfilled, the defendant will have his or her criminal case dismissed.

Note: San Bernardino County’s main diversion program is managed by a third-party provider titled Rehabilitation, Intervention, Support, and Education (RISE). However, specific diversion programs for prostitution cases, cases related to military veterans, mental health cases, and drug cases are still managed by the court.

Professional Licensing: Most professional licensing agencies will issue harsher discipline for their respective licensees when the licensee is convicted of a crime. Diversion programs offer a means for licensed professional to avoid a criminal conviction and therefore, avoid the harshest penalties that are issued against the licensed professional. The same is true for defendants who are planning to enlist in the military, are active in the military, or for veterans who might lose VA benefits as the result of a criminal prosecution. It is important to note that a defendant’s professional or occupational license could be suspended or revoked for the commission of conduct that is considered criminal even if that criminal conduct does not lead to an arrest or criminal prosecution.

Immigration & Diversion: A diversion program is great for avoided criminal prosecution, but criminal conduct can lead to deportation or denial of reentry into the United States for non US citizens. This is true even if the defendant successfully has his or her prosecution diverted through a diversion program. This is true because California law cannot usurp federal immigration law; however, when a criminal prosecution is diverted, immigration authorities usually have much less information need to file deportation proceedings in immigration court.

Early Case Termination: Diversion programs, if offered, are usually offered to a defendant early in a prosecution. Once the district attorney has invested time and energy in a case and she or she has made the case ready for trial the desire to set the prosecution aside through diversion fades.

Failure to Comply: If the defendant does not fulfill the condition of a diversion program then regular prosecution will renew as if the diversion effort never applied. In some cases, the defendant may request that he or she be reinstated into the diversion program where the violation of a diversion condition is slight or excusable.

To learn more about diversion, the RISE program in San Bernardino County, and defenses to criminal prosecution, contact our criminal defense lawyers for a free case evaluation. Our criminal defense team has defended hundreds of misdemeanor and felony crimes in San Bernardino County. We have experience with helping clients have their criminal cases diverted or reinstated into a diversion program and we can help you too. Our criminal defense lawyers are available every day of the week to discuss your rights and defenses to any criminal charge. Call today!


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