Getting into a diversion program starts with your defense attorney making the case to the prosecutor, usually at or before your arraignment, that your charge and your history fit what the program is built for. The prosecutor decides who gets in. If they agree, you sign an agreement to complete conditions like counseling, community service, drug testing, or restitution over six months to two years, and the charges are dismissed when you finish.1
Start With Your Attorney and the Prosecutor
The prosecutor is the gatekeeper in virtually every diversion system. At the federal level, the Department of Justice requires every U.S. Attorney’s Office to develop its own diversion policy, and prosecutors have broad discretion over who gets in and who doesn’t. State and local programs work the same way, with the district attorney or city prosecutor controlling access.
Your defense attorney drives the request. A good attorney raises diversion with the prosecutor before or during your first few court appearances, framing why you’re the kind of person the program exists for: no prior record, willingness to take responsibility, a stable living situation, an offense on the lower end of the spectrum. If you don’t have an attorney yet, get one before your first hearing. Trying to negotiate diversion on your own puts you at a significant disadvantage.
You generally cannot demand diversion. Courts have consistently upheld the prosecutor’s discretion, and there’s no legal mechanism in most jurisdictions to force the issue if the answer is no. That’s why the relationship between your attorney and the prosecutor’s office matters more than most people realize.
Who Qualifies
Eligibility hinges on two things: what you’re charged with and your criminal history. Diversion programs are built for people charged with lower-level, non-violent offenses who don’t have a significant record. First-time offenders facing charges like minor drug possession, petty theft, or low-level fraud are the typical candidates. Federal pretrial diversion guidelines also allow prosecutors to prioritize young offenders, people with substance abuse or mental health challenges, and veterans.
Certain charges are almost always excluded. Under the DOJ’s Justice Manual, federal diversion programs cannot accept anyone accused of:
- Sexual offenses, sexual abuse, sexual assault, child exploitation, or child pornography
- Offenses that caused serious bodily injury or death
- Offenses involving brandishing or using a firearm or deadly weapon
- Offenses by current or former public officials arising from a violation of public trust
- Terrorism-related offenses or offenses involving foreign affairs
- Offenses where the person held a significant leadership role in a large-scale criminal organization or violent gang
These federal exclusions require approval from the Deputy Attorney General to override. Most state and local programs follow a similar pattern, excluding violent felonies and serious sex offenses, though the exact boundaries differ by jurisdiction.
Having already completed a diversion program for a prior charge will usually disqualify you from a second one. The federal first-offender statute for drug possession, for example, explicitly bars anyone who has previously received diversion under that same provision.
When to Raise It
The window opens early and closes fast. The request typically happens at your arraignment or during a pretrial conference. Waiting until you’re deep into litigation usually means the opportunity has passed. If diversion is even a possibility in your case, your attorney should be talking about it in the first weeks, not the first months.
What the Application Involves
In some jurisdictions, you’ll need to submit a formal application. That can involve background checks, interviews with program staff, and sometimes a screening assessment for substance abuse or mental health issues. The prosecutor’s office reviews the application and makes the final call.
If your case fits a specialty court rather than general pretrial diversion, the intake process looks different. Drug courts target people whose offenses are driven by substance abuse and involve intensive supervision, frequent court appearances before the same judge, and mandatory treatment. Mental health courts require a clinical diagnosis and substitute treatment and case management for prosecution. Veterans treatment courts connect justice-involved veterans to treatment for substance use, mental health conditions, PTSD, and traumatic brain injury, with mandatory drug testing and a structured system of incentives and sanctions. Ask your attorney which track, if any, fits your situation. Some of these specialty programs will accept charges that a general diversion program won’t.
Federal law also provides a specific path for first-time simple drug possession. Under 18 U.S.C. § 3607, a court can place someone found guilty of simple possession on probation for up to one year without entering a conviction, and if you complete probation without violation, the court must dismiss the case.
What You Sign Away When You Get In
Diversion is not a free pass. When you sign the agreement, you’re making real legal concessions, and you should understand them before you agree.
The most important is your right to a speedy trial. Federal law specifically excludes the diversion period from the speedy trial clock, meaning the time you spend in the program doesn’t count toward the government’s deadline to bring you to trial. Your agreement will contain a written waiver acknowledging this, along with a waiver of any defense based on the statute of limitations for the duration of the program. If you spend 18 months in diversion and then fail out, the prosecutor picks up right where they left off, with all their filing deadlines intact.
Some programs also require you to enter a guilty plea or a plea of no contest as a condition of entry. The plea is held in abeyance while you complete the program. If you succeed, the plea is withdrawn and charges are dismissed. If you fail, the plea stands and the court moves straight to sentencing. Not every program requires a plea, so ask your attorney specifically whether the one you’re considering does. The answer matters for immigration, professional licensing, and your options if things go wrong.
A Critical Warning for Non-Citizens
If you are not a U.S. citizen, diversion can carry hidden risks. Under federal immigration law, the definition of “conviction” is broader than most people expect. It includes any case where you entered a guilty plea or admitted enough facts for a finding of guilt and a judge ordered any form of punishment or restraint on your liberty, even if the court never formally entered a judgment of guilt.
The USCIS Policy Manual states that when a pretrial diversion program does not require an admission or finding of guilt, the order “may not count as a conviction for immigration purposes.” When the program does require a plea, the analysis changes entirely, and immigration authorities can treat the outcome as a conviction even after the criminal case is dismissed. Expungement doesn’t fix this. USCIS policy is clear that an expunged conviction still counts as a conviction for immigration purposes.
Before entering any diversion program that requires a plea or an admission of facts, consult an immigration attorney in addition to your criminal defense attorney. A program that clears your criminal record can simultaneously make you deportable or inadmissible.
What Completion Looks Like
Program lengths typically run from six months to two years. Requirements vary but usually include some combination of program fees, restitution to any victim, community service hours, counseling or education tailored to the offense, random drug testing, and a condition that you pick up no new arrests. Failing a drug test or getting arrested again are two of the most common ways people get terminated.
If you complete every requirement on time, the prosecutor dismisses the original charges and the court closes the case. You walk away without a conviction. After dismissal, you can often petition to have the arrest record sealed or expunged, with the process and waiting period depending on your jurisdiction. Under 18 U.S.C. § 3607, people who were under 21 at the time of a federal drug possession offense are entitled to full expungement of all official records. For offenders 21 and older, the federal statute still provides that the disposition won’t count as a conviction for any legal disability or disqualification, but the automatic expungement right doesn’t apply.
If you fail, the agreement is terminated and your case goes back on the regular docket. If you entered a guilty plea to get in, that plea stands and the court can proceed directly to sentencing. If no plea was entered, the prosecutor refiles or proceeds with the original charges. Either way, you’ve lost time and money, and you’re back in front of a prosecutor with less reason to offer you a deal.