Diversion – Deferred Prosecution – Dismissal

A Chance to Earn a Dismissal of Criminal Charges


Can a person charged with a crime really complete some classes and have the charges against them dismissed? The answer is, yes. This type of program is referred to different names across the country, but in Arizona the most common name for it is diversion, deferred prosecution or suspended prosecution. Diversion is supposed to be a mechanism to give people a second chance who have been charged with a crime. Through the process, the goal is to offer rehabilitation methods in various forms that are consistent with the crime charged.

On a basic level, diversion is an agreement between a person accused of a crime and the prosecution. The agreements generally go like this – if you, the accused, will promise to pay some fines, take some classes and jump through some other hoops, then we, the prosecution, will agree to dismiss the charges against you and it will essentially be like this never happened (as far as your record is concerned). This is an attractive offer for most people, but it isn’t available for just anyone and before you take a deal like this, you need to know what you are getting into.

Look, the bottom line is that you are making a deal with the government’s lawyers; you should have a lawyer before doing that for obvious reasons.

You need to fully understand the fine print and legal rules because there are different types of diversion and within each type of diversion the terms of the agreement will likely vary. Some of the requirements or ramifications may not be obvious at all.

Rule 38 Diversion – Suspended Prosecution

This type of prosecution is rare and a good defense attorney will recognize that this rule exists (some criminal defense attorneys have no idea) and when the case is right for it, try to negotiate for their client to get this type of diversion. Rule 38 diversion is referenced as such because the authority for this type of diversion is found in the Arizona Rules of Criminal Procedure, Rule 38. Rule 38.1(a) states that:

After filing a complaint, indictment, or information, but before adjudication, the State may file a motion requesting that the court suspend further proceedings to allow a defendant to participate in a deferred prosecution program.

How long is the prosecution suspended? Well, the rules say that under this type of diversion, the program ends in one of three ways.

  • the accused screws it up and prosecution is resumed right where it left off,
  • all of the terms are completed and the prosecution files a motion to dismiss the case, or
  • a term of two years passes, and the court dismissed the prosecution.

What makes this type of diversion more favorable for the accused is that if something were to go wrong during the program, they find themselves in the same exact spot they were when they started the program. This is unlike Title 9 diversion as discussed below.

Title 9 Diversion

Title 9 diversion is referenced this way because the authority for this type of diversion is found in Title 9 of the Arizona Revised Statutes. Specifically, the law is ARS 9-500.22. Subsection A of the statute states that:

The chief prosecuting officer of a city or town may establish a diversion program that provides for the dismissal of a criminal complaint on successful completion of the program’s requirements. Diversion shall not be available to persons accused of a crime involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.

There are few things to pull from the language of this law that make it different from Rule 38 diversion. For example, this law is specifically targeted towards cities and towns (rather than counties). As another example, there are so explicit exclusions spelled out in this subsection. Namely, Title 9 diversion is not available to someone who is accused of using a deadly weapon or dangerous instrument.

Taking a look to the language of the second part of the law, subsection B:

The prosecutor has sole discretion to decide whether to divert prosecution of an offender when the diversion occurs before a guilty plea or trial. The diversion program may be structured to require a guilty plea before entry into the program.

Again, there are a few things to pull from the language of the law here. The law states that the prosecutor has sole discretion on whether or not to offer diversion; this is common. The next part of the law is what really sets it apart from Rule 38 diversion.

For Title 9 type diversions, the accused must generally plead guilty BRFORE entering into the agreement. This is very significant because if the terms of the agreement are violated, there is no chance to fight the charges. There has already been a plea of guilty signed and suspended. Also, it is solely up to the prosecutor whether to divert the prosecution or to enter the guilty plea against the accused. This can be scary.

Is diversion available for felony charges or only misdemeanors?

Yes, there is a such thing as felony diversion in Arizona. As the name implies, felony diversion is specifically for felony convictions. Each county in Arizona has its own policies and rules pertaining to if diversion is available and, if so, how it works. Maricopa County diversion requires that a plea of guilty be signed by the accused and that the accused go through a screening process to determine the level of “treatment” needed. The screening process usually involves a series of questions from a counseling agency.

Once the assigned treatment is completed, the prosecution files a motion to dismiss the charges and the court grants the motion. If the person on diversion is charged with a new crime or otherwise violates the terms of the agreement, the person is sentenced for whichever crime they have already plead guilty to. There is no fighting the charges once this occurs. That said, depending on the circumstances, sometimes reinstatement can be negotiated for.

Arizona Criminal Diversion Attorney

Any time a person is facing criminal charges, it is a good idea to consult with an experienced criminal defense attorney. I will talk to you about your case and answer your questions at no charge at all. If you or someone you know are facing felony or misdemeanor criminal charges and want to learn more about the eligibility for a diversion program, call or text attorney Steven Scharboneau 24/7 at (480) 363-0090 or contact me HERE.

Call or Text Steven Scharboneau 24/7 @ (480) 363-0090