Tennessee Pretrial Diversion Changes, No Diversion for DUI Offenses
Effective July 1, 2011, Tennessee no longer has a “Pretrial Diversion” program but judicial diversion is still available to criminal defendants. Tennessee House Bill 64 repealed T.C.A. §40-15 in its entirety and amended T.C.A. §40-35-313[important]T.C.A. §40-35-313 is entitled ” Probation — Conditions — Discharge and dismissal — Expunction from official records” and provides the criminal court with the authority to defer further criminal proceedings in certain instances [/important]
This change from pretrial diversion to only judicial diversion ultimately may appear to be a distinction without much difference. However, under the former pretrial diversion statute the Tennessee Attorney General as prosecutor had broad discretion as to whether to grant diversion or not. Under the revised procedure, it is the court that holds the discretion. Of course, in practice it will still be the criminal defense attorney and the prosecutor working together for a plea agreement which allows for judicial diversion in most cases. However, the criminal defense attorney could request judicial diversion with or without the consent of the State of Tennessee.
DUI offenses are excluded from judicial diversion program
The biggest change in Tennessee’s judicial diversion laws in the addition of DUI as a crime that can not be diverted. A judicial diversion can only be granted in the court has received a report from the Tennessee Bureau of Investigation (TBI) which shows that the criminal defendant is eligible for diversion. To be eligible for judicial diversion a criminal defendant must not have been previously convicted of a felony, or a Class A misdemeanor for which a period of confinement has been served. Certain classes of crimes are not eligible for diversion, including Class A felonies, Class B Felonies, certain sexual crimes, and now any DUI related offense.
Pre-Trial Diversion and Judicial Diversion – Same diversion period
Just like the former pre trial diversion program, a judicial diversion requires the diversion period to be equivalent to the maximum sentence for the crime being diverted. For instance, if you are charged with a Class E Felony, the sentence is typically one (1) to six (6) years so the diversion period would be six (6) years. After successful completion of a judicial diversion the defendant may apply to the court for the record of conviction to be expunged. You may divert only one crime in your lifetime.
Update October 24, 2011 Pre-Trial Diversion Now Judicial Diversion in Tennessee
It appears that after the latest judicial conference Tennessee Criminal Court Judges are now officially processing pre-trial diversions as judicial diversions. It is now the judge that must be convinced of the propriety of granting a diversion. The judge, not the prosecutor will explain the process of diversion, the reasoning behind granting a diversion, and the consequences of violating a pre-trial judicial diversion. [/important]
Ultimately, before considering a judicial diversion or any other plea bargain you need to discuss the options with your criminal attorney. Be sure to choose your criminal lawyer wisely, making sure that the attorney has experience in obtaining pre-trial diversions – as now the lawyer must convince the criminal judge, not the prosecutor.