Pre-filing diversion may allow an eligible person to resolve a criminal allegation before formal charges are filed. Instead of immediately pursuing prosecution, a prosecutor may allow the person to complete requirements such as treatment, education, community service, or restitution.
If the program is completed successfully, prosecutors may decline to file the underlying charge. Availability and requirements vary, and acceptance into a program is not guaranteed.
How Does Pre-Filing Diversion Work?
Pre-filing diversion occurs while a criminal matter is still under review and before prosecutors formally file charges. When diversion is available, prosecution may be delayed while the participant completes specific conditions.
The person typically has a designated period to satisfy those requirements. Successful completion may result in prosecutors declining to pursue the charge. If the person does not complete the program, prosecutors may proceed with the case.
Who Is Eligible for Pre-Filing Diversion?
Eligibility depends on the particular program and circumstances. Pre-filing diversion is not available in every case, and acceptance is generally determined on an individual basis. Prosecutors or program administrators may consider several aspects of the case when deciding whether diversion is appropriate.
Factors that may be considered include:
- The nature and seriousness of the alleged offense
- Prior criminal history
- The circumstances of the incident
- Harm suffered by an alleged victim
- Willingness to complete program requirements
- Program-specific eligibility rules
Meeting basic eligibility requirements does not necessarily mean a person will be accepted into diversion.
What Are Common Requirements of a Pre-Filing Diversion Program?
The conditions of pre-filing diversion vary depending on the program and alleged conduct. Participants are typically given specific obligations to complete within a designated period. The requirements may reflect the circumstances of the case and the goals of the particular program.
Participants may be required to complete:
- Community service
- Counseling or educational programs
- Substance abuse treatment
- Drug or alcohol testing
- Restitution
- Program fees
- Other program-specific conditions
Participants may also be required to avoid additional criminal activity while completing the program.
What Happens After You Complete Pre-Filing Diversion?
Successful completion may result in prosecutors declining to file the underlying criminal charge. Participants generally must complete every required condition within the specified period to receive this benefit.
Once completion is confirmed, the matter may be closed without proceeding through a traditional criminal prosecution. The exact process will depend on the diversion program and the terms of the agreement. Participants should retain documentation showing that they satisfied their obligations in case questions about completion arise later.
If a person fails to satisfy the conditions, prosecutors may move forward with prosecution. The consequences will depend on the terms of the particular diversion agreement.
What Is the Difference Between Pre-Filing and Pretrial Diversion?
The primary difference is when diversion occurs. Pre-filing diversion occurs before formal charges are filed, while pretrial diversion occurs after a criminal case has begun.
Kentucky’s statutory pretrial diversion program is governed by KRS 533.250. The statute establishes eligibility requirements and exclusions and requires an eligible person to apply to the trial court and Commonwealth’s attorney. A guilty plea or Alford plea is required as a condition of statutory pretrial diversion.
Pre-filing diversion, by contrast, may prevent a criminal charge from being formally filed in the first place.
What Are the Benefits of Pre-Filing Diversion?
For eligible participants, pre-filing diversion may provide an opportunity to resolve an allegation without traditional prosecution. It offers an alternative path that focuses on satisfying specific conditions rather than immediately moving forward with a criminal case.
Potential benefits include:
- Avoiding formal criminal charges
- Avoiding a conviction for the alleged offense
- Resolving the matter outside the traditional court process
- Addressing underlying issues through treatment or education
- Making restitution when appropriate
These benefits generally depend on successful completion of all program requirements.
Can a Criminal Defense Attorney Help With Pre-Filing Diversion?
An attorney can become involved before prosecutors decide whether to file criminal charges. An attorney can become involved before prosecutors decide whether to file criminal charges. At this stage, negotiations with prosecutors may affect how the allegations are handled, making early legal representation particularly relevant.
Depending on the circumstances, a criminal defense lawyer may:
- Determine whether diversion may be available
- Communicate with prosecutors
- Present information relevant to eligibility
- Explain the terms of a proposed agreement
- Help address issues involving program requirements
- Prepare a defense if charges are ultimately filed
Because timing can be important, someone who learns that they are under investigation may benefit from contacting an attorney before a charging decision is made.
Contact Suhre & Associates DUI and Criminal Defense Lawyers To Schedule a Free Consultation With a Lexington Criminal Defense Attorney
If you are under investigation in Lexington, Kentucky, you do not have to wait until charges are filed to speak with a lawyer. Pre-filing diversion may be available in some circumstances, but eligibility will depend on the allegations and applicable program.
Suhre & Associates DUI and Criminal Defense Lawyers represents people facing criminal investigations and charges. Contact our firm today at (859) 569-4014 to schedule a free consultation with a Lexington criminal defense lawyer.