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Diversion

THE CONCEPT

Once a municipal court case proceeds to trial, the judge has only two options. The defendant must be found guilty or not guilty. That determination, of course, must be based solely on the evidence presented. Many prosecutors realize cases are not all cut and dried, that often some middle ground is needed between the extremes of dismissal and conviction. It is this need for a middle ground that gave rise to the concept of diversion.

Generally diversion is an agreement between the prosecutor and the defendant whereby the defendant agrees to do certain things (such as completing alcohol treatment) and the prosecutor agrees to dismiss the charge or charges if the defendant performs as agreed. Ideally, this allows the defendant to get the help needed for rehabilitation without the stigma of a conviction.

Since the diversion is a contract between the defendant and the prosecution, the judge should not be involved in determining whether a defendant is “placed on diversion” or the terms of diversion. However, like other contracts, there may be disputes about whether there has been performance of all of the terms. In that case, the court may be called upon to decide whether the criminal proceeding should resume or the complaint should be dismissed.

TRAFFIC DIVERSION PROCEDURE

There are certain basic requirements to qualify for traffic diversion. This information can be found in the Traffic Diversion Information sheet. You must request diversion prior to any trial date that is currently set for your appearance.

YOU ARE NOT ELIGIBLE FOR DIVERSION IF:

1. You have a moving violation conviction on your driving record right now.
2. You have an accident showing on your driving record right now.
3. At this time, you were ticketed for more than one moving violation.
4. At this time, your ticket was a result of an accident you were involved in.
5. If you were charged with speeding and you were exceeding the speed limit by more than 19 miles an hour.
6. At this time, you have received a moving violation in a construction zone, school zone or involving a school bus.
7. You have received a traffic diversion in the past.
8. You have a Commercial Driver's License.

If you do not have any of the above conditions present you might be eligible for diversion. In order to determine whether diversion is available, a Traffic Diversion Application must be complete and a non-refundable application fee of $25.00 must be paid.

If application is approved defendant may sign diversion and mail with payment of the scheduled fine as indicated on the ticket and $100.00 diversion fee to the court before the next regular court date. Defendant may also appear in court on the scheduled date to sign agreement and pay fine/fee.

Defendant must comply with all terms of diversion.

DUI DIVERSION PROCEDURE

Defendant should retain representation of counsel.

Defendant must complete DUI diversion application and submit to and complete an alcohol and drug evaluation. (Fees for evaluation must be paid at time of evaluation by defendant).

If application is approved defendant should appear in court and sign agreement and pay all fees.

Defendant must comply with all terms of diversion and report to the court as ordered.

Please note that city prosecutor may not enter into a diversion agreement with a person charged with DUI;
1. If defendant has previously participated in a diversion of DUI
2. If defendant has a previous conviction of or pleaded noto contendere to DUI in this state or another state or political subdivision.
3. If defendant was involved in a traffic accident resulting in personal injury or death.

Frequently the requirements for DUI Diversion include;
1. That the defendant pays a fine of between $500 and $1000.
2. That the defendant attend court each month and present AA attendance records; that the defendant enroll in and successfully complete an alcohol and drug safety action program or a treatment program or both and pay the fee for the program.
3. Defendant may be required to pay fees for court appointed attorney.
4. That the Defendant shall remain abstinent from all mood and mind altering chemicals, to include alcohol, and he/she shall submit to a chemical test upon the request of the Court, its agents or law enforcement officers, at his/her expense.

REVOCATION OF DIVERSION

If defendant fails to comply with the terms of diversion, the prosecutor may move for revocation of diversion. The matter will be set for hearing. If the court finds that the terms of the diversion agreement have not been complied with, the diversion must be set aside and the criminal proceedings must be resumed as if there had been no diversion.

DISMISSAL AFTER DIVERSION COMPLETE

If the defendant complies with the terms of the diversion, the city must dismiss the case with prejudice, which means the complaint may not be refiled.

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