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Pre-Trial Diversion

If you are facing criminal accusations in Massachusetts, you may be worried about the impact that a criminal record could have on your life and future. Luckily, there are various disposition options, available in select cases, that can stop a criminal incident from ever appearing on your record. One such disposition is pre-trial diversion. Pre-trial diversion helps certain people avoid the criminal system by instead taking part in a program aimed at improvement of self or community. The recently enacted criminal justice reform bill expands the eligibility requirements and encourages the use of pre-trial diversion programs.

Who Qualifies for Pre-Trial Diversion?

The following are the newly expanded eligibility requirements for pre-trial diversion:

  • A defendant of any age is now eligible for diversion
  • The defendant has had no criminal conviction since reaching the age of 18
  • The defendant has no pending criminal cases or outstanding warrants
  • The defendant is charged with a crime potentially punishable by a term of imprisonment and over which the district court has final jurisdiction
  • The defendant has a program’s recommendation that he or she would benefit from participation in it.

Military veterans, active service members, those who have a history of military service, those with substance use disorders and mental illness may also be eligible for pre-trial diversion.

Various offenses specified by law are not eligible for diversion, including any offense under Massachusetts General Laws chapter 265, chapter 119 or chapter 268A, with the exception of assault and battery (MGL c. 265 section 13A(a)); as well as any offense that is punishable by incarceration for more then five years, any offense that may not be continued without a finding or placed on file, and any offense ineligible for decriminalization under MGL c. 277 section 70C.

What Type of Programs Are Involved in Pre-Trial Diversion?

Pretrial diversion programs include substance abuse treatment, rehabilitation, community service, counseling, educational, vocational, social or psychological programs, and more. These programs are intended to benefit both the defendant and the public.

When Should Pre-Trial Diversion be Requested?

Pre-trial diversion should be requested prior to arraignment, which is a defendant’s first appearance in court. Where a defendant is qualified, the arraignment may be continued for two weeks, so that an assessment of whether a defendant would benefit from a program may be conducted. The court may also, in its discretion and in consideration of the prosecution’s opinion, grant a two-week continuance for a defendant who preliminary fails to meet the eligibility qualifications.

What Are the Benefits of a Pre-Trial Diversion Disposition?

Perhaps most importantly, a pre-trial diversion disposition prevents any entry from going onto one’s criminal record because it must be requested prior to arraignment. Successful completion of the pre-trial diversion program will also result in dismissal of the charges.

What Laws Govern Pre-Trial Diversion in Massachusetts?

Massachusetts General Laws chapter 276A, sections 1-7 and 10-12 govern pre-trial diversion. The recently enacted 2018 criminal justice reform bill adds two additional laws that allow for pre-trial diversion opportunities.

Massachusetts General Laws chapter 276B sections 1-5 provide for diversion of eligible adults or juveniles to Community-Based Restorative Justice Programs. Diversion under this chapter may occur at any stage of the case, including pre-arraignment, with the consent of the district attorney and the court. Such diversion may serve as a final case disposition and if successfully completed may result in a dismissal of the case. Much like diversion under chapter 276A certain offenses will not qualify for diversion under chapter 276B, including sexual offenses under MGL c. 123A section 1, offenses against family or household members under MGL c. 265 section 13M and any offense resulting in serious injury or death.

Massachusetts General Laws chapter 111E section 10 also provides for diversion of drug-dependent persons.

Who is a Good Candidate for Pre-Trial Diversion?

An experienced lawyer will recognize good candidates for pre-trial diversion. Factors considered include academic performance, participation in the community, and involvement in extracurricular activities.

What If I Have Already Been Arraigned?

Pre-trial diversion is not typically available after arraignment. However, there are other favorable dispositions, such as pre-trial probation, which can significantly minimize the impact of a criminal charge. If you have been charged with a crime in Massachusetts, you should speak with an experienced criminal defense lawyer who will advise as to all of your options.

Contact a Massachusetts Criminal Defense Lawyer Today 617-263-6800

If you are facing a criminal accusation in Massachusetts, call the Law Offices of Stephen Neyman, P.C. at 617-263-6800 or complete the online contact form available on this website. Certain case dispositions, such as pre-trial diversion and dismissal prior to arraignment, are not available after arraignment. Therefore, if you wish to avoid any entry on your criminal record, it is critical to contact an attorney as early as possible. Attorney Neyman has been defending clients in courts throughout Massachusetts for decades. Contact him today for a free and confidential initial phone consultation.

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