What is diversion?

In DC criminal law, people often ask what diversion is.  This post is the first part in a three part series that answers that question.  Diversion is a program offered by the prosecution where when an individual meets certain conditions, the government will dismiss the charges against that person.  Several types of diversion programs exist in DC.  Having a criminal defense lawyer who can explain the diversion options is important when you are charged with a crime in DC.  Before understanding what type of diversion options exist, its important to know the difference between the two government agencies in DC that prosecute crimes.

As previously mentioned, the DC Office of the Attorney General (OAG) prosecutes only traffic misdemeanors.  The United States Attorney’s Office for the District of Columbia (USAO) prosecutes all other misdemeanors and felony crimes.  Felonies are crimes that carry a maximum penalty of more than one year in jail.  That difference is important in and deserves further discussion in a future post.  The United States Attorney’s Office has more flexibility in diversion programs and also has more options with more reasonable requirements.  So, the first couple of posts on this topic will discuss diversion options the USAO offers.  I will discuss the OAG’s diversion police in a later post for those primarily concerned with options when they get a DC DUI.

My favorite option is a deferred prosecution agreement or DPA.  In a DPA, the accused does not have to plead guilty or admit responsibility.  The government and the accused sign a contract that basically says the person will not get rearrested and will complete 32 hours community service.  In exchange the government will postpone the prosecution of the case for four months.  If the person comes back to court in the four months and complies with the agreement, the government will dismiss the case.  During the four months period, the accused is not supervised by any government agency (like Pretrial Services or Probation).  Whether to offer a DPA is solely in the government’s discretion.  Any DC criminal lawyer who promises a guaranteed DPA is not being candid with his or her client.

It is a major benefit for an individual to enter into a DPA as a way to get their case dismissed.  As I mentioned, the person does not have to plead guilty to get the benefit of a DPA.  There can be a lot of bad consequences for pleading guilty to a charge even if that charge is later dismissed.  With a DPA, there is no guilty plea, which is an important difference between a deferred sentencing agreement (to be discussed in Part II of this post).  Finally, the government requires that an individual test negative for drugs and have a very limited criminal record to get a DPA.  Also, certain offenses are not DPA eligible.  If the person’s first drug test is negative, then that satisfies the drug test requirement.  If the first drug test is positive, the person must drug test until he or she gets two consecutive negative drug tests.

The government’s requirements for DPA eligibility are important.  However, its also important to consult a DC criminal defense lawyer who knows the requirements and can successfully negotiate with the prosecutor to get an agreement approved.  At Scrofano Law, we have gotten dozens of clients diversion agreements, including DPA’s.  We have seen first hand, that when people are given the chance to have their case dismissed 9 times out of 10 they will do it and get their criminal case dismissed.