Updated on June 1, 2023
If you are facing a criminal charge in Texas, you likely wish there was a way to avoid jail time and keep your record clear. Depending on your situation, this may be possible with a pretrial diversion. Pretrial diversions allow defendants in specific situations to avoid some of the negative consequences of a criminal conviction.
While a pretrial diversion may sound like the miracle you have been looking for, it is important to know that it has both pros and cons and is not a get-out-of-jail-free card. Understanding these alternatives to jail time may help you better understand your legal options.
If you are facing a criminal charge, an important first step is reaching out to an experienced Killeen criminal defense attorney for the legal guidance you need.
How Pretrial Interventions and Diversions Work
First off, the terms pretrial intervention and pretrial diversion are generally used interchangeably. Pretrial interventions and diversions go into effect before a defendant is sentenced for a criminal charge. Consider these steps involved in starting a pretrial intervention:
An assistant district attorney refers an eligible defendant to the pretrial intervention program.
The defendant’s criminal record is carefully considered, and a meeting is set if appropriate.
The defendant attends the meeting and must choose whether to proceed with the pretrial intervention program or head to court.
It is important to point out that if you receive a pretrial intervention, it does not mean you will be proven innocent. In fact, if you accept the pretrial intervention, you admit your guilt regarding the charge at hand, but this path can offer legal advantages.
Pretrial diversion allows eligible defendants to address the charges levied against them without being prosecuted and without deferred adjudications or convictions marring their records. In order to be eligible for pretrial intervention, all of the following must apply to your situation:
The charge against you must be a first offense
You are charged with a non-violent crime.
The charge is no more serious than a misdemeanor or one of a few select felonies.
You have an otherwise clean criminal record.
You agree to pay any restitution that is required.
You must freely agree to participate in the program and must admit your guilt regarding the charge in question (which is different than pleading guilty).
The pretrial diversion program must be the first one made available to you and accepted
Further, the charge against you cannot be related to any of the following offenses:
National security or foreign affairs
The Application Process
Once you meet the basic requirements, you will need to apply for a pretrial diversion.
The application process generally involves writing essays that expand on the circumstances related to your charge, address the details of the life you are currently living, and highlight your future goals for yourself – sharing why you are an excellent candidate for the opportunity afforded by pretrial diversion.
Additionally, you may be required to provide supporting personal records, such as the following documents:
List of accomplishments
Finally, you will very likely be interviewed by a probation officer who will ask questions that are relevant to your overall application.
This application process amounts to accepting guilt for the crime you have been charged with and demonstrating how you are prepared to make the most of this opportunity if it is forthcoming. While you will not be required to admit guilt in court, you are admitting guilt in the pretrial diversion process.
The Requirements Included in Your Pretrial Diversion Program
If your application is accepted, you will need to fulfill each and every requirement assigned to you in order to complete the pretrial diversion program successfully. Consider these examples of the kinds of requirements that are generally included in pretrial diversion programs:
Community service hours
Counseling or educational sessions that are geared toward the charge in question, such as drug and alcohol treatment
Regular drug and alcohol testing
Regular reporting to a probation officer
Additional requirements that are case specific
If you receive a pretrial intervention program and follow all the rules, including terms of supervision, without committing any further criminal acts, you can unlock many benefits, such as the following advantages:
You can avoid having a charge on your record. Once you fulfill the requirements set forth by your pretrial diversion program, the charge against you will be dropped.
You can avoid spending time behind bars, allowing you to continue participating in the life you have built for yourself without disruption.
You can have the peace of mind that comes from knowing the charge in question will not show up on any background checks throughout the State of Texas.
Your record will be set up for expungement eligibility.
You can avoid both a criminal record and a guilty plea.
The experience may help you avoid actions that can lead to future criminal charges.
An important point to make is that if you are genuinely innocent of the charge or have a solid chance of beating the charge, going for a pretrial intervention or diversion may be to your detriment. Working closely with a dedicated Killeen criminal lawyer can help you make the right decisions for your unique circumstances.
Pretrial diversion can be advantageous, but applying for and accepting a pretrial diversion is not always in your best interest. If you are accused of a crime you did not commit or the case against you is weak, taking a pretrial diversion allows you to avoid jail time, but you will face consequences for something you did not do or that cannot be proven.
As you consider your options, it is important to understand the downside of pretrial diversions:
An element of the pretrial diversion program is admitting guilt to the original charge levied against you.
If you are deemed to have violated any of the terms of your pretrial diversion requirements, you’ll go back to the start, and the prosecutor can proceed with their case against you.
Successful completion of your pretrial diversion program will not automatically clear your record. Your record can only be cleared through the expungement process.
With a pretrial diversion, you are required to admit guilt to the charge brought against you, but instead of proceeding to court, you take an alternate route. A pretrial diversion provides you with an alternative to a conviction in court and all attendant consequences, but it should not be confused with being innocent of the charge involved.
If you are eligible for a pretrial diversion and you opt to take it, the case against you can, in the long run, be dismissed and completely removed from your record, but this will not happen automatically.
Your skilled criminal defense attorney will help you better understand your case's strengths and challenges and help you make the best decisions for you in your unique situation.
Expungement of Records
In order for your record to be cleared after a pretrial diversion, you will need to have the precipitating charge expunged.
Law enforcement agencies and courts in Texas gather extensive information about every criminal charge and arrest and carefully maintain it in immense databases. This practice means that, even if the charge against you is eventually dropped or you are found not guilty, putting the matter completely behind you can be a challenge. An expungement of records can help.
If an expungement is available to you, it can address all the following kinds of records:
Removing yourself from the state’s network of legal databases can amount to obtaining a clean slate on which you can create a fresh start.
In order to obtain an expungement, you will need to request a court order. If it is granted, every record identified in your court order must be either returned to you or destroyed, or every reference to you in a specific record must be removed.
To expunge your record, you will begin by filing a petition in the appropriate district court that includes all the following information about you:
Your name, address, date of birth, social security number, and other relevant identifying information
Information related to your arrest and the charge against you, including the date, location, arresting police agency, court, and case number
A comprehensive list of each agency, jail, court, official, or prosecutor involved with the charge
A list of the private companies that gather and distribute criminal histories, such as those in the background-checking industry
The grounds you are basing your request for an expungement on
Each government agency listed in your petition must be notified of your expungement hearing date, and they all have the right to be represented and heard at said hearing.
When a charge is expunged from your record, it is as if it never happened, and when asked, you can honestly deny you were ever arrested on the charge in question.
Many defendants are confused about how pretrial diversions differ from deferred adjudications. Both pretrial diversions and deferred adjudications can give you a second chance, but there are distinct differences. Consider the following features of deferred adjudication:
With deferred adjudication, you are not afforded the luxury of bypassing court, and you will need to plead guilty in court.
A deferred adjudication will show up on your Texas background check unless you apply for and receive a non-disclosure order.
Deferred adjudications are more likely to apply to felonies than misdemeanors, which are generally addressed by pretrial diversions.
A deferred adjudication amounts to a stain on your record, and the negative consequences can continue to reverberate throughout your life.
In response to a deferred adjudication, a non-disclosure order may be available, but this form of relief is markedly different from having a pretrial diversion expunged.
Non-disclosure orders are a form of record sealing, and while they make it more difficult to access your criminal record, they do not make it impossible. A sealed record is still a record, and while one court may have sealed it, another court may be inclined to order it reopened in response to a government agency’s request.
Very generally, non-disclosure orders are available to those who – following a conviction – successfully complete their deferred adjudications under the supervision of probation. There are certain crimes, however, that are not eligible for non-disclosure orders, including the following offenses:
Endangering a child
Child pornography charges
Violating a protective order
Sexual assault and aggravated sexual assault
When the precipitating conviction is a felony, the person petitioning for a non-disclosure order must wait five years after successful completion of the deferred adjudication’s probation supervision before beginning the petition process.
There is also a range of misdemeanor charges for which the person petitioning for a non-disclosure order must wait two years after successful completion of probation supervision before beginning the petition process. Examples include discharge of a firearm, public lewdness, and assault. For other misdemeanors, however, there is no waiting period.
It is important to note that a conviction for any other criminal offense following a charge’s dismissal via deferred adjudication – other than a traffic offense that leads to a fine only – disqualifies the individual from obtaining a non-disclosure order.
Petitioning for a Non-Disclosure Order
Non-disclosure orders are directly connected to the original case number of the crime charged. The petitioner moves forward by filing the petition in the same court where the criminal case was originally heard (rather than in the district court, like an expungement).
After the filing, a hearing – at which the petitioner must prove that the original charge against them was dismissed upon the successful completion of deferred adjudication – is scheduled. The petitioner is tasked with proving they are eligible for non-disclosure and that the non-disclosure serves justice’s best interest.
The decision of whether or not a non-disclosure order will be granted is at the presiding judge’s sole discretion.
Do Not Put off Consulting with an Experienced Killeen Criminal Lawyer
If you are up against a criminal charge, you are undoubtedly feeling the heat, but you do not have to face the difficult path forward alone.
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a formidable criminal lawyer who understands the pressure you are facing and who is committed to protecting your legal rights – in pursuit of your case’s optimal outcome (whether that means a pretrial intervention or not).