NON-DRUG DIVERSION DISMISSAL

CRIMINAL CASE DIVERSION

Certain types of minor crimes, and usually first offenders, may qualify for a case disposition that results in the dismissal of the case upon completion of certain requirements.  This is called a diversion. This allows the defendant to rehabilitate themselves without suffering a conviction.  The conditions imposed can include counseling, good behavior, and community service.  There are two types of diversion: (1) pre-plea, also called pretrial diversion, and (2) deferred entry of judgment (DEJ), also called deferred adjudication.

DEFERRED ENTRY OF JUDGMENT (DEJ)/DEFERRED ADJUDICATION

Deferred adjudication requires that a plea and sentencing is deferred for a period of time for the person to complete the requirements of the diversion.  Diversion can be as short as a few months up to the length of probation.  The length of diversion is negotiated between the parties.  On the day of sentencing, if the person has completed all of the requirements, the prosecutor will ask the judge to dismiss the case.  If granted, the case will be dismissed and no conviction would have occurred.  If the person fails to complete the requirements, the original sentence will be imposed and the person will be convicted of the crime that they entered a plea.            

PRE-PLEA/PRETRIAL DIVERSION

Pre-plea does not require a plea and is handled prior to the prosecutor filing charges against the person in court.  After an arrest, the person appears in court on their scheduled court date.  The prosecutor offers the person an opportunity to resolve their case without charges being filed.  Since no charges are filed, no plea is entered.  The person will be given a list of things to complete before the next court date and if those things get done the case will be dismissed. The conditions imposed can include counseling, good behavior, and community service.  The length of time to complete the requirements is usually negotiated between the parties.  At the subsequent court date, if all conditions have been met the case will be dismissed.  If the person fails to complete the requirements, the prosecutor will simply file charges and move forward with the criminal case.        

SEALING OF PRE-PLEA/PRETRIAL DIVERSION RECORDS

In any case where a person is arrested and successfully completes a pre-filing diversion program in lieu of filing an accusatory pleading, the person may, two years after successful completion of the program, petition the superior court to issue an order to seal the records of the arresting agency and related court files and records.  The court may order the records sealed if the court finds that doing so will be in furtherance of justice.

BENEFIT OF SEALING PRE-TRIAL DIVERSION RECORDS

If the order is made, the clerk of the court shall thereafter not allow access to any records concerning the case, including the court file, index, register of actions, or other similar records.  The person may thereafter state that he or she was not arrested for the charge and may respond to any question concerning the person’s prior criminal record that the person was not arrested.  A record pertaining to the arrest shall not, without the person s permission, be used in any way that could result in the denial of any employment, benefit, or certificate.

851.87 – SEALING OF PRE-TRIAL DIVERSION RECORDS

(a) (1) In any case where a person is arrested and successfully completes a prefiling diversion program administered by a prosecuting attorney in lieu of filing an accusatory pleading, the person may, two years after successful completion of the program as determined by the prosecuting attorney, petition the superior court that would have had jurisdiction over the matter to issue an order to seal the records of the arresting agency and related court files and records, and the court may order those records sealed if the court finds that doing so will be in furtherance of justice. A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense, who may request a hearing within 60 days of receipt of the petition. The court may hear the matter no less than 60 days from the date the law enforcement agency and the prosecuting attorney receive a copy of the petition. The prosecuting attorney and the law enforcement agency, through the prosecuting attorney, may present evidence to the court at the hearing.

(2) If the order is made, the clerk of the court shall thereafter not allow access to any records concerning the case, including the court file, index, register of actions, or other similar records.

(3) If the order is made, the court shall give a copy of the order to the person and inform the person that he or she may thereafter state that he or she was not arrested for the charge.

(4) The person may, except as specified in subdivisions (b), (c), and (d), indicate in response to any question concerning the person s prior criminal record that the person was not arrested.

(5) Subject to subdivisions (b), (c), and (d), a record pertaining to the arrest shall not, without the person s permission, be used in any way that could result in the denial of any employment, benefit, or certificate.

(6) A sealing order made pursuant to this subdivision shall not be forwarded to the Department of Justice to be included or notated in the department s manual or electronic fingerprint image or criminal history record systems. Any sealing order made pursuant to this subdivision and received by the Department of Justice need not be processed by the department.

(b) The person shall be advised that, regardless of the person s successful completion of the program, the arrest shall be disclosed by the Department of Justice in response to any peace officer application request, and that, notwithstanding subdivision (a), this section does not relieve the person of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

(c) The person shall be advised that, regardless of the person s successful completion of the program, the arrest shall be disclosed by the Department of Justice or the court in which the matter was heard in response to any subsequent inquiry by the district attorney, court, probation department, or counsel for the person concerning the person s eligibility for any diversion program administered by a prosecuting attorney in the future.

(d) A sealing order made pursuant to this section shall not apply to any record or document received or maintained by the Department of Justice. Upon issuing the sealing order, the court shall advise the person that, notwithstanding the issuance of a sealing order pursuant to this section, the Department of Justice shall continue to be able to maintain and disseminate any records or documents received or maintained by the department, as authorized by law.

(e) As used in this section, prefiling diversion is a diversion from prosecution that is offered to a person by the prosecuting attorney in lieu of, or prior to, the filing of an accusatory pleading in court as set forth in Section 950.

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