Criminal Court Pretrial Diversion Programs

In the modern criminal justice system, the vast majority of cases are resolved with a plea bargain. While there are no shortage of criminal trials occurring weekly across the nation, and while an individual facing prosecution must engage an attorney with actual trial experience, plea bargaining has become crucial given the number of cases to prosecute. A plea bargain is an agreement between the prosecution and defense on the resolution of the particular case. The prosecution and the defense attorney evaluate a case to determine its nature and severity, the existence of evidentiary problems, and the presence of any mitigating issues, and negotiate a more attractive resolution to a defendant, and to avoid the time and expense of a trial.

A common mistake made by defendants, with or without legal counsel, is failing to consider a pretrial diversion program, which removes the case from its path towards trial. An equally common mistake is accepting a pretrial diversion program when not warranted.

The South Carolina legislature has enacted several pretrial diversion programs designed to offer an individual facing criminal prosecution a second chance, and to provide relief to a overburdened judicial system.

One program is the Pretrial Intervention program, or PTI. PTI requires the payment of an enrollment and expungement fee, community service hours, usually sixty, and that the participant not be rearrested for a period of time. Other conditions may be added to a particular defendant’s PTI program at the discretion of the PTI coordinator. A defendant’s offense must also qualify for PTI as certain offenses are excluded from PTI, and a defendant must generally have no criminal record. Successful completion of PTI results in the dismissal of the defendant’s pending offense, and expungement of the arrest record.

Another program is the Alcohol Education Program, or AEP. AEP is designed for individuals charged with specific, low-level misdemeanor offenses related to the possession or use of alcohol. AEP requires the payment of an enrollment and expungment fee, has an age limit for the participant, and is limited to particular offenses. The successful completion of AEP, like PTI, results in the dismissal of the defendant’s pending offense, and expungement of the arrest record.

A lesser-known diversion program, available for domestic violence offenses, is the New Alternative Program, or NAP. NAP requires attendance of one domestic violence/anger management class per week for 26 weeks. Successful completion of NAP results in the dismissal of the defendant’s pending offense, and expungement of the arrest record.

A pretrial diversion program for certain traffic violations, excluding serious violations such as DUI or DUS, is the Traffic Education Program, or TEP. TEP requires the payment of an enrollment and expungement fee, four hours of community service, and completion of a four-hour defensive driving class. Successful completion of TEP results in the dismissal of the pending traffic citation.

Participation in PTI, AEP, NAP and TEP requires the approval of the prosecutor or prosecuting authority. Also, out of state defendants are permitted to complete the programs in their home states online.

The decision to enter a diversion program appears simple at first glance. However, successful completion of a diversion program can be expensive and time consuming. Also, the use of a diversion program is a one-time event. An individual who has completed a diversion program will not be able to make use of the program a second time. Therefore, an individual who completes a diversion program for a very minor offense, or for an offense of which the individual likely would not have been convicted, would be without a potentially available diversion program in the future should the need arise in a more serious matter. Last, an individual should not use a diversion program as a convenient way to dispose of an offense of which the individual is not guilty.

The decision to enter a diversion program should be an informed decision. Although the Judge setting bond, a prosecutor, a representative of the diversion program, or even a friend or family member may advise a defendant that a diversion program is a good fit for a particular offense, these individuals may either not have the defendant’s best interest in mind, or not have sufficient knowledge of the defendant’s offense, criminal history, employment and other pertinent information.

Consultation with an experienced criminal defense attorney is a must in order to make an informed decision. An experienced criminal defense attorney can investigate the facts, the defendant’s situation, and the law to provide the individual with the sufficient knowledge to accept or decline a diversion program. There is no substitute for representation from an experienced criminal defense attorney, experienced in conducting criminal trials, plea negotiation, and criminal law and procedure.