Tennessee offers a diversion program for some offenses if the accused meets certain conditions. There are two types of diversionary programs: pretrial diversion and judicial diversion. Both types of diversion programs are used to give defendants a chance to avoid a criminal record for less serious offenses. There are important differences between the two. 

What is a pretrial diversion? 

According to the State of Tennessee Bureau of Investigation, TCA 40-14-105 governs pretrial diversion. With a pretrial diversion, the defendant does not plead guilty and is not found guilty. A memorandum of understanding (MOU) is prepared between the District Attorney and the defendant. If the terms are not met, the prosecution can proceed with the charges. If the defendant does meet the conditions, the defendant can ask the court to expunge the charges. 

Pretrial diversions are generally not available for certain offenses including driving under the influence of an intoxicant, solicitation, child abuse, certain sexual offenses, domestic assaults, and other offenses. They also are not available for felony charges. 

What are the requirements for a judicial diversion? 

TCA 40-35-313 governs judicial diversions. A judicial diversion is different from the pretrial diversion: 

• The defendant must plead guilty or nolo contendre to the charges. 
• If the defendant completes the probationary period, the sentence is not imposed and the defendant can seek to have the charges expunged. 
• If the defendant fails the probationary period, the charges stand (no expungement is permitted) and the sentence will begin. 

• The court can impose “reasonable conditions” that must be met during the probationary period. Examples of reasonable conditions courts may impose include: 

• The requirement to wear a “transdermal monitoring device or other alternative monitoring device” if alcohol or drugs contributed to the defendant’s conduct. 
• “The requirement that a qualified defendant serve a period or periods of confinement in the local jail or workhouse not to exceed a total of thirty (30) days.” 

All diversionary programs require that certain application fees and court costs be paid. 

Which crimes make a person ineligible for a judicial diversion? 

Defendants don’t qualify for a judicial diversion if they’ve been convicted of a Class A misdemeanor (where time was served) or a felony. Defendants who have been found guilty of certain types of sexual offenses listed in the statute are not eligible for judicial diversion. Unlike pretrial diversion, judicial diversion is available on many felony charges. Diversionary programs are generally not available if a defendant was part of a previous diversionary program. 

At Delius & McKenzie, PLLC, our Sevierville criminal defense lawyers work aggressively to have evidence against you suppressed and charges dismissed. We often negotiate plea agreements including diversionary agreements. When necessary, we’re ready to try your case before a jury. For help with any criminal charge, call (865) 314-8026 or complete our contact form immediately. We fight for the accused in Sevierville, Seymour, Gatlinburg, Pigeon Forge, and the neighboring Tennessee areas.