This article was updated: Feb. 8th, 2023
It’s always frightening to be charged with a crime for the first time in your life. If you have never really been in genuine trouble with the law before but you are charged with a misdemeanor or with a felony, and if you are guilty as charged, in some cases you may be able to avoid at least some of the usual consequences of a criminal conviction. As drug crimes lawyers, we know that in many states, the completion of a court-ordered “first offender” diversion program will keep a conviction from going on a person’s criminal record.
Not every first offender will qualify, but in some states, some suspects with previous and minor misdemeanor convictions may also qualify. Some states limit “first offender” diversion programs only to defendants charged with misdemeanors, while others may allow participation by those facing particular felony charges. Usually, however, first offender programs are offered only to defendants who are not charged with a violent, serious, or major felony. Most states also offer first offender programs to most juveniles charged with crimes.
A good example of a typical first offender program is the program in Jefferson County, Wisconsin. When the District Attorney agrees, a defendant with no prior convictions (traffic violations don’t count) can sign a contract that, in part, requires attendance in classes, making restitution, and submitting to treatment or counseling. The program may last for a year or longer. Upon successful completion, the District Attorney reduces or dismisses the charge against the first-time offender, but a failure to complete the program sends the offender back to court and possibly to jail.
HOW DOES DIVERSION WORK IN CALIFORNIA?
Here in California, for certain types of offenses, defendants who are eligible can avoid a conviction by participating in a diversion program. Governor Jerry Brown signed legislation in 2014 which defers the sentencing of an adult offender who pleads guilty or no contest to particular drug or drug-related misdemeanors. California judges now have the discretion to offer diversion as a way to resolve these misdemeanor cases. Diversion lets an offender participate in treatment sessions or in drug and alcohol education classes.
When the defendant completes all required classes and programs, which typically takes six months, the offender may have his or her plea withdrawn and the charge will be entirely dismissed. For adults, only first-time offenders charged with drug or drug-related misdemeanors are eligible for diversion. Adult defendants charged with DUI, sex crimes, violent offenses, defendants with previous convictions for violent offenses, and anyone offered diversion in the past is disqualified. However, for juveniles, first-time offender diversion is available even for some felonies.
Diversion in the state of California is entirely up to the judge, and it is exclusively for those defendants who plead guilty or no contest to the charges they face. Prosecutors may voluntarily offer diversion to defendants who are plainly qualified. Defense counsel – a Long Beach criminal defense attorney, for example – may also recommend diversion to the prosecutor, even prior to charges being filed, so it is imperative to put an attorney on your case as quickly as possible when you are even suspected of a crime. Finally, your defense attorney may wait until the first court appearance and at that time request the judge to consider diversion.
When diversion is approved in any of these ways in California, the first-time offender then meets with a probation officer, who prepares a report for the judge regarding the defendant’s suitability for a first offense diversion program. The report may specify the type of program that the probation officer considers most suitable for the defendant. Most California judges will agree in most cases to a probation officer’s recommendation.
It’s easy to get confused by the legal language. Lawyers and judges in some states sometimes use the phrase “first offender” to identify programs that do not allow first-time offenders to avoid a conviction. Reduced and alternative sentencing is provided in every state to many first-time offenders, but in these programs, reduced or alternative sentencing is a condition of the conviction rather than a way to avoid the conviction.
HOW DOES “DEFERRED ENTRY OF JUDGMENT” DIFFER FROM DIVERSION?
In California, for some offenses, first-time offenders also may avoid a conviction with deferred entry of judgment (DEJ), which is slightly distinct from diversion. With deferred entry of judgment, an offender must plead guilty, so if the offender does not satisfy all of the requirements for DEJ, he or she cannot withdraw that plea, instead plead innocent, and go to trial – in other words, the guilty plea and the accompanying conviction will stand.
If an offender qualifies for DEJ, he or she is placed in a program, with conditions determined by the court, for 18 to 36 months. After the term of DEJ is completed, the charge will be dismissed and the conviction will not be entered. In Southern California, first-time criminal offenders should discuss all of their rights and options with an experienced Long Beach criminal defense attorney who can help a defendant bring his or her case to its best possible resolution. Offenses that may qualify an offender for DEJ include:
- Possession of controlled substances for personal use
- Cultivation of marijuana for personal use
- Driving while possessing marijuana for personal use
- Possession of drug paraphernalia for personal use
- Being under the influence of illegal drugs
- Aiding and abetting in the use of certain drugs
- Forging or using a forged prescription to obtain drugs for personal use
IS THERE A FEDERAL FIRST OFFENDER PROGRAM?
Under the Federal First Offender Act, some individuals charged with or convicted of some federal drug crimes may qualify for the federal diversion program. The individual may not have any previous state or federal drug or drug-related criminal convictions. Participation in the federal diversion program is limited to once in a lifetime. Entrants into the program first must plead guilty or be found guilty, but if a year-long probation is completed successfully, the conviction is not officially added to the individual’s record. If the probation is violated, a federal court will proceed with a conviction and sentencing.
Far too many people in the state of California – people who are not criminals – have criminal records because they made one mistake. First-offender programs are a recognition by lawmakers and the courts that prison is not the right solution for people who are not criminals. California courts can be tough on career criminals, but those same courts can now offer a second chance – without a criminal conviction – to adults and to juveniles who make a single foolish mistake.