Massachusetts G.L. c. 276A: Pretrial Diversion

Massachusetts General Laws chapter 276A governs pre-trial diversion of selected offenders in the district courts. Pre-trial diversion gives qualifying defendants the opportunity to avoid the criminal system by instead participating in a program designed to better themselves or their communities. Chapter 276A, section 2 provides:

“The district courts, and in Boston, the municipal court of the city of Boston, shall have jurisdiction to divert to a program, as defined in section one, any person who is charged with an offense or offenses against the commonwealth for which a term of imprisonment may be imposed and over which the district courts may exercise final jurisdiction, who has not previously been convicted of a violation of any law of the commonwealth or of any other state or of the United States in any criminal court proceeding after having reached the age of 18 years, except for traffic violations for which no term of imprisonment may have been imposed, who does not have any outstanding warrants, continuances, appeals or criminal cases pending before any courts of the commonwealth or any other state or of the United States, and who has received a recommendation from a program that he would, in light of the capacities of and guidelines governing it, benefit from participation in said program.”

Under this statute, then, the eligibility requirements for a pre-trial diversion program are as follows:

• The defendant has not been convicted of a crime since having reached the age of 18.
• The defendant does not have any outstanding warrants or pending criminal matters.
• The defendant is charged with a crime for which a term of imprisonment may be imposed.
• The defendant is charged with a crime over which the district court may exercise final jurisdiction.
• The defendant has received a recommendation from a program that he or she would benefit from participation in it.

The term “program” is defined in G.L.c. 276A, section 1. A pre-trial diversion program might involve psychological, medical, vocational or social services, substance abuse treatment, community service, counseling, or other rehabilitative services.

Under G.L. c. 276A, section 10, military veterans, active service members, and those who have a history of military service may be eligible for diversion. The United States Department of Veteran Affairs and the Massachusetts Department of Veteran Services provide assessments of defendants and program recommendations. Mission Direct Vet, which treats veterans struggling with substance abuse and mental health issues, is a program to which veterans are often referred.

A defendant generally must request pre-trial diversion prior to arraignment. An arraignment is a defendant’s first court appearance. An arraignment may take place upon an arrest or summons. The defense may ask the court to continue the arraignment to prepare a request for pre-trial diversion. Any defendant who is qualified for consideration for pre-trial diversion may be afforded a 14-day continuance to be assessed by personnel of a program to determine whether the defendant would benefit from such a program.

The judge may also, in his or her discretion, grant a 14-day continuance to a defendant who preliminarily fails to satisfy all of the eligibility requirements. This may be done at the request of the defendant or upon the judge’s own initiative, but the court will consider the opinion of the prosecution.

A lawyer who has experience in securing pre-trial diversion dispositions will recognize good candidates for this disposition. If the case is diverted to a program, the charges will be dismissed upon successful completion of the program and there will be no entry on the defendant’s criminal record. If the defendant fails to complete the program or violates its terms, a court hearing will be held. If the judge finds that the defendant violated a term of the program or was charged with another crime, the defendant’s case will go forward through the traditional criminal court system.

It is important to have an experienced criminal defense attorney at the earliest stage of your case, as pre-trial diversion is not available after arraignment. If you have received a summons for an arraignment, it is important to retain a criminal lawyer right away. Even if you are ineligible for pre-trial diversion, having a skilled defense attorney by your side from the very start will ensure that your rights are protected at every step of the way.

If you or someone you know has been accused of a criminal offense in Massachusetts, contact the Law Offices of Stephen Neyman, P.C. Attorney Stephen Neyman is a Boston-based lawyer who practices in courts throughout the commonwealth. Drawing upon his decades of experience in criminal practice, Attorney Neyman regularly achieves excellent results for his clients. In countless cases, he has helped his clients to avoid entries on their criminal records by securing pre-trial diversion and other similar dispositions. Attorney Neyman is a fierce advocate who will fight to protect your future. Because he understands that facing a criminal charge can cause anxiety and distress, he readily makes himself available to answer questions and address concerns. Call Attorney Neyman’s office at 617-263-6800 or send him an e-mail today. You can reach his office at any time of day or night, so do not hesitate.