Successful completion of the program results in charge dismissal, sealed records, eligibility to honestly deny prior convictions on applications, and minimal impact on background checks. Consult with a criminal defense attorney or contact the LCPO for more information.
Indiana Code 33-39-1-8 controls when prosecution may be withheld and the decision to offer a diversion on a case-by-case basis is up to the assigned Deputy Prosecuting Attorney.
Diversions are not permitted in the following circumstances:
- Where the individual is charged with Murder or a Level 1, 2, 3, or 4 felony
- Where the person holds a commercial driver’s license (CDL).
- Violations involving the operation of a motor vehicle in accordance with the federal Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Public Law 106-159; 113 Stat. 1748).
- Offenses under Ind. Code § 9-30-5-1 through 9-30-5-5, which include all OWI offenses.
If the defendant is under 18 years old, diversions are not permitted for:
- Ind. Code § 7.1-5-7-7, illegal possession of alcohol by a minor (if offense includes operation of vehicle)
- Ind. Code § 9-30-4-8, unauthorized operation of a motor vehicle (if offense includes operation of vehicle)
- Ind. Code § 35-44.1-2-13 Obstruction of Traffic, a Class A misdemeanor – Level 5 felony
- Ind. Code § 35-43-1-2(a) Criminal Mischief (if offense includes operation of vehicle)
In deciding whether to offer a diversion, factors considered by the LCPO include:
- The nature and severity of the offense;
- Any special characteristics or difficulties of the offender;
- Whether the Defendant is a first-time offender;
- Whether there is a probability that the Defendant will cooperate and benefit from the diversion program;
- Whether an evidence based practice and/or other program is available and appropriate for the Defendant;
- The impact of the diversion upon the community;
- Whether the Defendant is likely to re-offend;
- Provisions for restitution; and
- Any mitigating or aggravating circumstances.
A Diversion is an agreement with the Prosecutor's Office, while a Deferral is an agreement with the court. For a Deferral, the individual must plead guilty to the crime (or plead liable in the case of an infraction) and the court will withhold judgment for the duration of the deferral. After completing any terms required by the court, the case is dismissed. If any terms of the deferral are violated, in addition to any sanction the court may order, the conviction will enter and the individual will be found guilty, or liable, for the offense.
Pursuant to Indiana Code section 33-39-1-8, among other things, a diversion agreement may include conditions that a defendant:
- A waiver to a bench trial;
- Work faithfully at suitable employment or schooling;
- Undergo medical treatment or mental health/addiction counseling;
- Support the person’s dependents and meet other family responsibilities;
- Make restitution to the victim for damage or injury that was sustained;
- Refrain from harassing, intimidating, threatening, or having any direct or indirect contact with the victim or a witness;
- Report to the prosecuting attorney at reasonable times to answer reasonable inquiries and promptly notify the prosecuting attorney of any change in address or employment; and participate in dispute resolution.
- Participate and complete an Advent e-Learning course
The Deputy Prosecuting Attorney assigned to the case will set the diversion program's length, which may not surpass the maximum potential sentence for the offense.