What Are Deferred Adjudication and Pretrial Diversion?

Deferred adjudication requires the defendant to first plead guilty to the charge. Pretrial diversion does not.

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

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

These types of programs go by several different names. Still, they all remove the defendant from the ordinary channels of criminal law prosecution. Upon completing all court orders, the district attorney’s office files to dismiss the charges. The goal is to allow the defendants to rehabilitate themselves. Defendants demonstrate they can behave responsibly under community supervision.

But these alternatives usually aren’t offered automatically. You’ll likely need to build a compelling argument with your criminal defense lawyer to avoid jail time or minimize your sentence. 

Pretrial Diversion

Pretrial diversion removes a defendant from prosecution before a guilty or no contest plea.

Other 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 so that they can meet the conditions mentioned above. If the defendant fails to meet the conditions of the pretrial diversion program, prosecutors can put the defendant on 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. Some states 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 entry is based on the prosecutors obtaining the victim’s consent of the crime. Additionally, prosecutors usually require defendants to waive their right to a speedy trial.

Specialty Courts for Pretrial Diversion

Pretrial diversion programs in your state might go through specialty courts, such as mental health courts and veterans courts. For instance, in Houston, Texas, the Veterans’ Treatment Court 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

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 offenders to participate in special programming. For example, 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 between states. Misdemeanor programs generally run from six months to a year. Programs for felonies typically run for one to two years.

Always check with your state and jurisdiction to learn more about your situation. For example, under Penal Code Section 1000.2, diversion can last around 12-18 months in California.

Deferred Adjudication

Deferred adjudication is also sometimes called a stay of adjudication. It begins after a defendant has pleaded guilty or no contest. In this way, it resembles probation. But after the plea, a deferred adjudication works more similarly to a pretrial diversion.

Even though the defendant enters a plea, the court will not enter a judgment of guilt. The court will lay out several conditions the defendant must meet. If the defendant fulfills the requirements, the charges get dismissed. The defendant won’t have a criminal record.

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, a defendant must first plead guilty or not contest. The state doesn’t have to go back to trial if the defendant is unsuccessful. 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 place the defendant on trial since there was no prior guilty plea.

Questions About Alternate Sentences? Ask an Attorney

If you’re facing criminal charges, you may have options to resolve your case without jail time. 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.