Pre-Trial Diversion

A Conviction in Disguise

What it means:

Participating in Pre-Trial Diversion means that if you do certain things, such as pay fees, pick up trash, go to treatment, and stay out of trouble for a year, no judgment of conviction will be entered against you.

What does that mean?  For one thing, you will not have a prior conviction for purposes of raising a second offense to a felony.  For example, a second marijuana conviction or simple battery will again be an A-Misdemeanor.

  It also means that 395 days after starting the program, you are entitled to petition the court for an order requiring the Indiana State Police and other governmental entities to refrain from disclosing information about your court case to anyone who is not affiliated with a law enforcement agency.  Background checkers will not see that anything happened if you or your attorney file the appropriate papers, get the court order, and the system works.  I suspect that the vast majority of people are forgetting to do this.  It won't happen automatically.

What it does not mean:

Julet said: "What's in a name? That which we call a rose
By any other name would smell as sweet"  --  Romeo and Juliet, 1594.

It does not mean you get a clean record.

That which we call a "conviction" by another name can eliminate you as a job candidate and get you thrown out of the country if you are a foreign national.  More and more, job applications ask about programs such as Pre-Trial Diversion.  If you agreed to be held accountable and punished for something, it would appear to most employers, banks, and the general public that you committed the crime of which you were accused.

Signing up for Pre-Trial Diversion is viewed as an admission of guilt.

Can you get away with lying about it?  Probably not.  There are easily accessible public records of (1) your arrest, (2) your charges, and (3) the fact that you agreed to participate in Pre-Trial Diversion.  If you do a thorough job of getting a non-disclosure order under Indiana Code Section 35-38-5-5, you might get away with it.  

If you opted for Pre-Trial Diversion at your initial hearing, you can still change your mind.

What are the alternatives to Pre-Trial Diversion?

1.  Plea Bargaining.  That probably won't work.  The only deal better than Pre-Trial Diversion. is outright dismissal of the charges.  Would the Prosecutor dismiss your charges just because you are an alright guy?  Don't count on it.  Could you get a dismissal for assisting the police in an investigation?  Maybe.  Especially if you can crack a terrorist plot.  If all you can do is be a narcotics snitch you would probably feel better about yourself in the long run if you sign up for Pre-Trial Diversion. 

2.  Preparing for Trial.  If the State's case is weak or hopeless, preparing for trial is probably the best coarse of action.  The State does not intentionally convict innocent people.  The State does not like lose.  The State has little incentive to try questionable cases.

You can avoid conviction if the evidence was illegally seized.  Almost all police searches are legal for only one reason - the victim gave permission.  If an officer says, "would you mind if I look around?" or "would you mind emptying your pockets" and you say  you would mind, anything the officer finds probably can't be used against you. 

You can avoid a conviction for public intoxication or public indecency if you were not in a public place or place of public resort.  Strange as it seems, you aren't required to wear clothing outdoors, in broad daylight, in full view of the public if you are on someone's private property.  You don't need to accept Pre-Trial Diversion for urinating in someone's yard or for being drunk in an apartment complex (motels are different).  You are entitled to dismissal or acquittal but you have to ask.

You can avoid a conviction for battery or disorderly conduct if you were only taking measures you reasonably believed were necessary to stop an attack.  If you reasonably believe you must use deadly force to end an attack or eject someone from you home or car, homicide is legal.  Under Indiana's self defense law, you have no duty to retreat from attackers or intruders.

If the State won't dismiss your case, you might still convince a jury that there is reasonable doubt about your guilt.

Adverse consequences to accepting Pre-Trial Diversion:

1.  More and more employers are asking about programs such as Pre-Trial Diversion on application forms and during interviews.

2.  It is easy for anyone to search public records and see that after you were arrested and charged, you were held accountable through Pre-Trial Diversion.

3.  To see how participating in Pre-Trial Diversion is viewed, consider the following regulation applying to foreign visitors in the United States:
   8 USC Section 1101(a)(48)(A) states: 
     The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court, or if adjudication of guilt has been withheld, where A (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or  restraint on the alien's liberty to be imposed. 

"Nolo Contedere" means "I do not wish to fight" the charges against me.  In a sense, that is what you do in Pre-Trial Diversion.  You don't fight the charge and are ordered to pay money, pick up trash on work crew, and do other things you might not like.  You don't have a formal judgment of conviction entered on a court docket, but the Department of Homeland Security might say you have a conviction as defined in 8 USC Section 1101(a)(48)(A).  I would argue that it is not a conviction because you do not enter a formal plea of nolo contendere.  Indiana does not allow pleas of nolo contendere.  People who participate in Pre-Trial Diversion enter pleas of "Not Guilty."


Pre-Trial Diversion might be the best deal you can get, but don't think it is without consequences.  It is not as good as an acquittal or unconditional dismissal.  If you can win your case, think seriously about fighting it.  If in doubt, consult with a criminal defense attorney.