Pre-trial Diversion Programs in Massachusetts

When someone is charged with a crime in Massachusetts, they face the possibility of imprisonment, probation, or fines, and sometimes all three. However, individuals who don’t have significant criminal records or who are veterans may be eligible for a pre-trial diversion program. The District Attorney’s Office runs the program.

If a case goes through the pre-trial diversion program, the client doesn’t go before a judge. The purpose of pre-trial diversion is to give a defendant the possibility of avoiding the criminal justice system by meeting certain requirements.  Massachusetts General Law chapter 276A section 1-11 includes the requirements that allow courts to divert defendants charged with certain misdemeanors.

Under MGL chapter 276A section 2, district courts and the municipal court of Boston have jurisdiction to divert someone charged with an offense for which imprisonment can be imposed and over which district courts can exercise final jurisdiction. However, the defendant must be between 18 and 22, never have been convicted in a criminal court after reaching 18 (except for traffic violations that were not punished with imprisonment), not have outstanding warrants or appeals or cases pending anywhere in the country, and have received a program recommendation that he or she would benefit from the program. A separate code section (section 10) covers pre-trial diversion for adult veterans. Adult veterans must meet other requirements and need not be between ages 18 and 22.

Misdemeanors that are often eligible for pre-trial diversion when they are a first offense include shoplifting, marijuana possession, DUI, and assault. The court that diverts the defendant needs to have jurisdiction over the charges. Generally, those charged with violent crimes are not eligible.

Usually, your attorney must ask for pre-trial diversion before your arraignment. It is important to retain an attorney with experience evaluating who is a good candidate for this type of program as well as experience arranging these diversions. The District Attorney’s Office will consider factors like education, extracurricular activities, and community involvement. Probation officers at the court will also screen defendants in order to enable the arraignment judge to make a determination about whether a defendant is eligible.

Your attorney can also ask the court to delay the arraignment so that there is time to prepare a request to be admitted to the diversion program. A defendant who qualifies for diversion can be given a 14-day continuance to be assessed for whether he or she would get any benefit out of a diversion program. The judge can direct the defendant to a program and inform the program of this action. The judge also has discretion to grant a continuance for assessment to a defendant who isn’t eligible at first because he or she doesn’t meet all the section 2 requirements. The defendant can ask for this, or the judge can take the initiative to grant the continuance. After you’re arraigned, pre-trial diversion is not possible in most cases.

During a stay of proceedings, the program director will submit periodic reports to the court about your progress and report any violations or subsequent arrests. What if you violate the terms of the diversion program, or there is an allegation that you violated a condition or rule of the program? In that case, there will be a hearing before the court at which you will have an opportunity to be heard. However, if the judge determines you violated a program condition or were charged with a subsequent offense, your participation in the program is terminated, and your case proceeds through the traditional criminal justice court system.

If you are charged in Massachusetts with a first offense misdemeanor, such as an OUI or minor shoplifting, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges and the possibility of pre-trial diversion. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015

Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014

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