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Dismissal by Diversion

When confronted with criminal charges, or even the possibility of criminal charges, the question we are asked most often is "how can we have these charges dismissed?" That is a very sensible first question, especially where the charges are of questionable merit. So how might that result be attained, especially in a world where the prosecutor or the court, not the defendant, is the party making the dismissal decision? In our experience, the outright dismissal of charges typically comes in one of three ways.

First, the preferable option in any case is to have the charges "dismissed" before they are even filed. This can be achieved from time to time by proactively investigating the case and/or otherwise convincing the police or the prosecutor that the charges should not be filed. In some cases, even where the police or prosecutor don't see the facts the same way we do, charges can be staved off at the probable cause/grand jury stage, i.e., the defense can convince a judge or grand jury that there's no probable cause to support the charges.

A second means through which charges can be "dismissed" is to win the case through an acquittal at trial. Nothing goes farther towards "dismissing" charges than having a jury or judge return a not guilty verdict.

While the two foregoing options are clearly the preferable means of having charges dismissed, they are also the toughest to come by. A third way to have charges dismissed, and a result often attainable even in the face of clear guilt, is "dismissal by diversion."

A "dismissal by diversion" is simply an agreement between the defendant and a prosecutor that requires the defendant to meet certain short-term goals in counseling or other community service. If the defendant meets the goal, the charges are then required to be dismissed pursuant to the diversion agreement. There are downsides to the "dismissal by diversion" route. Two examples of downside are 1) it often requires a lot of work and/or input on the part of the defendant to complete the terms of the diversion agreement; and 2) it may sometimes require an admission of guilt, prior to the dismissal.

But the obvious benefit is, if the tasks assigned are completed by the defendant, the charges are in fact dismissed and no criminal conviction is entered as a matter of record – the defendant walks away with NO CRIMINAL RECORD for these charges. Perhaps above all else, the "dismissal by diversion" is the only instance where the decision as to whether or not the charges are dismissed is completely up to the defendant. In all other cases, the dismissal decision is in hand the prosecutor, judge, or jury

Dismissal by diversion is available most often in misdemeanor cases, but is sometimes available felony cases as well. We often see diversion agreements made available in domestic violence cases (although the typical domestic violence diversion requires a substantial amount of counseling work on the part of the defendant – usually involving a large time commitment over a period of months). Other cases ripe for diversion agreements include non-DV misdemeanor assault cases where diversion might require basic anger management counseling, non-driving alcohol related offenses which would include basic alcohol awareness classes among other things, or shoplifting cases. .

In felony cases, we see diversion agreements in the area of drug possession. For many first offenses, some basic counseling along with a period of clean drug testing, can lead to the complete dismissal of the charges.

Diversion agreements vary from jurisdiction to jurisdiction. What might be available in the Phoenix Municipal Court might not be available in the Scottsdale City Court and vice versa. Tempe might have a different standard than Mesa or Chandler.

Wherever you are, dismissal by diversion in the right case is worth seeking and considering.

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