What Are Deferred Adjudication and Pretrial Diversion?

Deferred adjudication requires the defendant to first plead either guilty or no contest to the charge. Pretrial diversion does not require a plea.

Alternative sentencing programs are typically used for low-level criminal offenses, such as drug offenses, domestic disputes, or for first-time offenders. The conditions imposed may include:

• Counseling
• Probation
• Drug testing
• Good conduct
• Restitution payment
• Community service

These types of programs go by several different names. They all allow the defendant to avoid the normal criminal trial process. Upon an offender’s successful completion of all court orders, the district attorney’s office files to dismiss the charges. The goal is to allow the defendants to rehabilitate themselves and demonstrate they can behave responsibly under community supervision.

These alternatives aren’t offered to everyone. You’ll likely need to build a compelling argument with your criminal defense lawyer to qualify for consideration to avoid jail time or minimize your sentence. 

Pretrial Diversion

Pretrial diversion removes a defendant from prosecution before a guilty or no contest (nolo contendre) plea. States use different names for pretrial diversion programs. Common terms for this kind of program include:

• Deferred prosecution agreement
• Pretrial intervention
• Accelerated pretrial rehabilitation
• Accelerated rehabilitative disposition

In these cases, the prosecutor halts the case against the defendant to allow them to attempt to meet the specific requirements of the program. If the defendant fails to meet the conditions of the pretrial diversion program, prosecutors may proceed with a trial.

Who Is Eligible for Pretrial Diversion?

Jurisdictions vary on the eligibility requirements for pretrial diversion. Some offenses have statutory guidelines that outline alternative sentences. States can give the district attorney’s office or specialty courts the authority to administer pretrial interventions.

Common eligibility requirements include:

• No prior felonies
• No prior participation in diversion
• No violent criminal history
• No possession of dangerous weapons

Sometimes, a defendant’s eligibility depends on obtaining consent from the crime victim. Prosecutors can also require defendants to waive their right to a speedy trial before agreeing to let them enter a program.

Program fees are usually the participant’s responsibility to pay. These can include supervision costs, drug testing, counseling, and restitution to victims. Fee amounts vary by jurisdiction and may be waived for indigent defendants.

Specialty Courts for Pretrial Diversion

Pretrial diversion programs in your state may be administered through specialty courts, such as mental health courts and veterans courts. For instance, the Veterans’ Treatment Court in Houston, Texas, develops an individualized treatment plan for veterans of the armed forces. Veterans can receive the following services:

• Intensive no-cost treatment
• Vocational services
• Community service reduction
• Financial assistance with alcohol monitoring devices

Drug courts are among the most common specialty diversion programs. They focus on substance abuse treatment and recovery monitoring for defendants with addiction issues.

Many jurisdictions offer a Driving While Intoxicated (DWI) Pretrial Intervention Program. Participants must refrain from drug possession and substance use and submit to random alcohol/drug testing. Other states require defendants to participate in special programming, like anger management classes for domestic violence offenses.

How Long Do I Have To Complete a Pretrial Diversion Program?

The length of a pretrial diversion program varies among states. Misdemeanor programs generally run from six months to a year. Programs for felonies typically run for one to two years.

Check with your state and jurisdiction to learn more about available diversion programs. For example, under Penal Code Section 1000.2, diversion can last between 12 and 18 months in California.

Deferred Adjudication

Deferred adjudication is also sometimes referred to as a stay of adjudication, meaning the court delays its final decision. It begins after a defendant has pleaded either guilty or no contest. After the plea, a deferred adjudication works akin to a pretrial diversion.

Even though the defendant enters a plea, the court will not enter a judgment of guilt. Instead, it will outline several conditions that the defendant must meet. If the defendant fulfills the requirements, the charges will be dismissed. Deferred adjudication periods typically range from six months to several years, depending on the severity of the offense and the jurisdiction.

Differences Between Pretrial Diversion and Deferred Adjudication

The main difference between the two programs is the plea. This difference affects what happens if the defendant doesn’t complete the program.

• In a deferred adjudication, the defendant must first plead guilty or no contest to the charges. The state doesn’t have to hold a trial if the defendant fails to complete the program. Instead, the court enters its judgment and sentence. At this point, the defendant’s record will show a criminal conviction.
• In a pretrial diversion, the plea does not happen beforehand. If the defendant fails to meet the program’s conditions, the state must proceed to trial, as no prior guilty plea is on record.

What Happens If You Violate the Program Conditions?

If a defendant violates the conditions of their program, the prosecution typically initiates a violation hearing. This can also be referred to as a revocation hearing. Depending on the severity of the violation alleged, they may request modified conditions or even removal from the program.

For minor violations, such as missing a single counseling session or failing to meet a payment deadline, the prosecutor may request modified conditions. Examples include stricter supervision or extra community service.

If the violations are more serious, the prosecution is more likely to request removal from the program. These transgressions can be committing a new crime or ignoring restitution orders,

The prosecution must first prove at a hearing that a violation occurred before any changes can be made. The defendant will have the opportunity to contest the claim, present evidence, or explain why the violation didn’t occur.

A skilled defense attorney can be instrumental at this time. They may be able to challenge the prosecution’s evidence, prove your compliance, or negotiate alternatives to help you secure the best possible outcome.

The ultimate decision rests with the judge, who enjoys broad discretion. Depending on your case, they may modify conditions, issue a warning, or remove you from the program, effectively restarting your criminal case.

Will I Have a Criminal Record?

Participation in a deferred adjudication or pretrial diversion program doesn’t always create a permanent criminal record. The impact depends on the program and state law.

Deferred Adjudication

While you plead guilty or no contest with deferred adjudication programs, the court waits to enter a conviction. Although the case gets dismissed when you complete the program, the plea and case history often remain on your record.

In some states, you may be able to seal or expunge the record. This means to hide or erase it from public view.

• If a record is sealed, law enforcement, the courts, and certain government agencies may still be able to access it, but employers, landlords, and the general public can’t
• Expungement, also known as expunction, removes the record completely, like it never happened

While eligibility criteria for both depend on state law, expungement is often more difficult to obtain than having records sealed.

Pretrial Diversion

In pretrial diversion, charges are paused while you complete your requirements. If you do, the case is dismissed, avoiding a conviction. The original arrest record and charge may still appear on your criminal history unless you apply for expungement/sealing.

Due to a lack of a conviction or plea in these cases, many states allow expungement of diversion records. Deferred adjudication records are often only eligible for sealing.

Both programs help avoid a conviction, but they don’t automatically clear your record. To understand the protections available to you, consider meeting with a legal advisor who’s well-versed and has years of experience with the criminal laws of the state that charged you.

Questions About Alternate Sentences? Ask an Attorney

If you’re facing criminal charges, you may have options to resolve your case without jail time or a conviction. A qualified criminal defense attorney can provide legal advice, negotiate a favorable deal, or argue for your placement on probation. Contact a local defense attorney to discuss the facts of your case.