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How to Possibly Avoid Jail Time by Participating in Pretrial Diversion

A little known fact within the Massachusetts criminal justice system, is the potential for any criminal defendant to be put on pretrial probation in lieu of criminal charges. You read that right, any potential defendant.files.jpg

The relevant statute reads as follows:

The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty;

Therefore, in addition to stating that any person may be placed on probation, it also states that the terms of such probation to be those that it deems proper. This allows the court the flexibility to customize the terms based upon the individual case at hand. As you can imagine, however, the reality of actually securing a pretrial diversion in lieu of criminal charges depends upon a variety of factors. Most notably among these is the experience and persuasiveness of your defense attorney.

In practice, the pre-trial probation, which is technically referred to as pre-trial diversion, is a court approved agreement reached between the defendant and the prosecutor prior to trial or the entering a guilty plea. Therefore, if you enter a guilty plea prematurely, such as if you decide to forego the advice of counsel, you effectively waive your right to this potential option.

According to the terms of a pre-trial diversion agreement, the defendant is placed on probation under the care of a probation officer, either supervised or unsupervised, for a defined period of time, and according to certain agreed upon terms. Once the defendant successfully completes the probation term, the charges will be dismissed completely.

However, if the defendant violates any condition of his probation, the charges will not be dismissed, and the case will proceed normally. Meaning charges will be formally filed, and the defendant could face a trial, and potentially jail time. However, a defendant cannot be jailed for violating this pretrial probation, since technically, that individual has not been found guilty of anything yet. However, the court could then decide to hold a person without bail, if it so decides.

Subject to this provision, common probationary conditions include:

  • periodic reporting to probation officer,
  • performing community service,
  • participation in rehabilitative programs,
  • successfully seeking and retaining employment.

The court retains the authority to change the terms of the agreement at any time, so long as the alteration doesn’t amount to a new punishment. It can also modify the length of the probation, either during or immediately following its completion. The terms of the probation must be in accordance with its goals, which while primarily rehabilitative, may be punitive or retributive, etc.

Pretrial diversion is not easy to secure, and is typically only an option in lesser offenses. In order to ensure your best chances of qualifying for this option, you should hire an attorney experienced with the process. Patrick J. Murphy is experienced in securing pretrial diversion for clients, and furthermore brings many years of experience in aggressively defending criminal cases.

If you have been accused of or charged with any crime, you will want to ensure that you have an aggressive, knowledgeable, and experienced Boston defense attorney on your side. Contact the Law Office of Patrick J. Murphy, Esq. today in order to schedule a free and confidential legal consultation. You can contact our office by calling 617-367-0450 or through our website.

More Blog Posts:

Supreme Court Refuses to Establish Per Se Rule in DUI Cases, Warrants Required For Blood Tests, Boston Criminal Defense Lawyer Blog, published May 2, 2013
Miranda Warnings and the Alleged Boston Marathon Bomber, Boston Criminal Defense Lawyer Blog, published April 22, 2013