There are multiple benefits to diversion programs, including avoiding a conviction, permanent criminal record, and possibly being able to seal the record of your arrest. However, prosecutors do not offer everyone the opportunity to enter a diversion program. These are typically utilized for first-time, low-level offenders. If you already have a criminal record or are accused of committing a felony, then prosecutors are less likely to offer you this chance. Prosecutors are also more likely to allow a diversion program if you are remorseful and either employed or in school.
If you are unsure of the eligibility requirements for a diversion program or whether going through one will help you, you should speak with an experienced criminal defense lawyer at Silver Law Firm. Call us at (510) 995-0000 to schedule a free, initial case consultation.
The Basics of Diversion Programs
Certain diversion programs occur after charges are filed, and they require you to enter a deferred guilty plea. They help you avoid the full court process and a potential conviction. If you successfully complete the program, you can petition to have your arrest record sealed. However, if you fail to complete the diversion program, the charges move forward and you can be sentenced to the maximum penalty allowed by law.
Other diversion programs begin prior to filing. They include various components, such as education, counseling, community service, and restitution. If you successfully complete a prefiling diversion program, also known as an alternative prosecution program, no charges are ever brought against you. If you do not finish the program, then the prosecution will move forward with the charges and you must defend yourself in court.
Another type of diversion program begins prior to a plea agreement being made or offered. Pre-plea diversion programs are similar to other diversion programs in that they can encompass classes, community service, and fines. This type of diversion program is a good way to resolve charges against you so that you can prevent a conviction appearing on your record.
Prosecutors must approve your entrance into a diversion program. This is not something you can utilize without their approval, which necessitates having an attorney who is willing to work with prosecutors and fight for this option for you.
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A Benefit of Diversion Programs: Sealing the Record
There is a significant benefit of a pre-filing diversion program that you do not have access to with a pretrial program. After successfully completing one of these programs, you can move to seal your records with the help of an experienced attorney. A lawyer will guide you through the process, beginning with filing appropriate paperwork in court. If the court finds that sealing your record furthers justice, then your motion was successful, and your records will be sealed.
Are You Eligible to Have Your Record Sealed Under California Penal Code 851.91?
It is also possible to have your arrest record sealed under CPC 851.91. Per this statute, you are eligible to have your record sealed when your arrest did not result in a conviction, and when the prosecution can no longer charge you, meaning:
- The statute of limitations on your offense has run out
- Charges were filed against you and were dismissed or cannot be refiled
- A judge or jury found you not guilty
While you can be eligible to have your record sealed under these circumstances, the judge in your case does have the discretion to deny your request if the offense you committed was a domestic violence, child abuse, or elder abuse crime, and that you have a pattern of this type of criminal behavior.
If you are indeed eligible to have your arrest record sealed, you must file a petition at least 15 days before the hearing on said petition. At this hearing, your attorney can present evidence on your behalf regarding why your record should be sealed, and why granting your petition would “serve the interests of justice.” At this proceeding, the burden of proof initially falls on you and your attorney. If you successfully satisfy this burden, it shifts to the prosecuting attorney.
If the court grants your petition, it must provide a written report to you, the prosecutor, and to the law enforcement officials that arrested you. This report must state that the arrest did not occur, and that your record is sealed.
There are situations in which you are ineligible to have your arrest record sealed, including:
- The statute of limitations on your offense has not run out
- You intentionally evaded law enforcement officers as they tried to arrest you
- You purposely evaded law enforcement as they tried to arrest you by means of identity fraud
- You were charged with a serious offense or another crime for which there is no statute of limitations
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The Benefits of Sealing Your Record
When you are able to seal records of your arrest and diversion program, it is as if the incident never happened. You are entitled to say that you have never been arrested for that matter. This can be extremely helpful when you are trying to continue your education, find a job, secure a loan, and extend your visa or become a permanent resident.
However, there is a limitation to this benefit. You must disclose the arrest if you are asked by a police officer, and the Department of Justice will not seal your records for inquiries by law enforcement agencies. You will also need to disclose the arrest if you are arrested in the future and your eligibility for a diversion program is in question.
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Let an Expungement Lawyer Help You
If you previously completed a prefiling diversion program, you should speak with an attorney about your ability to ask for your records to be sealed. A lawyer from Silver Law Firm will review your circumstances to determine if you are eligible to petition the court, and if you do, the likelihood of succeeding in having your record sealed. If you were part of a diversion program and you have charges filed against you, a lawyer can review other expungement options.
To learn more, call attorney Elliot Silver at (510) 995-0000 or use the online form to schedule a free case consultation.
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