Criminal diversion agreements in Utah can take a few different forms. But the basics are that the criminal charges are dropped. No conviction ever enters against you. You may pay a small fine and have some type of informational probation (be good period). Once you successfully complete the diversion probation period all charges are dropped.
Utah’s criminal diversion is very, very similar to the plea in abeyance with a few critical differences.
Utah diversion agreements are found at Utah Code 77-2-5 through 9.
Mandatory diversion terms are few and discretionary terms can be many. Mandatory Utah diversion terms are:
(1). Timing of a Diversion. A diversion may start any time after the charges are filed, including after court, or even during trial.
(2). Mandatory Restitution. Like most victim restitution, restitution must be addressed in the diversion agreement. The prosecutor must indicate that they talked to the victim or the Office of Victims of Crime demonstrating no restitution is owed.
(3). Judicial Agreement. The judge must agree to diverting the case.
(4). Prosecutor Agreement. The prosecutor must agree to use diversion on your case. You can’t appeal the prosecutor’s or judge’s decision to NOT divert your case.
(5). Must be a Writing. Diversion agreements must be in writing and charges must have first been filed for diversion agreements to occur.
First time simple drug possession, or retail theft are crimes suitable for diversions.
Diversion agreements can’t be used on the following types of criminal charges:
(a) a capital felony; (life in prison, or death penalty cases)
(b) a felony in the first degree; (felony 1, 2, or 3 are the classes)
(c) any case involving a sexual offense against a victim who is under 14 years old;
(d) any motor vehicle related offense involving alcohol or drugs; (your classic DUI, Impaired Driving, Metabolite, etc)
(e) any case involving using a motor vehicle in the commission of a felony;
(f) driving a motor vehicle or commercial motor vehicle on a revoked or suspended license;
(g) any case involving operating a commercial motor vehicle in a negligent manner causing the death of another including the offenses of:
(i) manslaughter under Section 76-5-205; or
(ii) negligent homicide under Section 76-5-206; or
(h) a crime of domestic violence as defined in Section 77-36-1. (there are around 25 plus domestic violence tagged crimes).
(i) most sex crimes, unless an individual is alleged to have committed a sex offense while under 16 years old if the court enters on the record the court’s findings that:
(1) the offenses could have been adjudicated in juvenile court but for the delayed reporting or delayed filing of the information in the district court, unless the offenses are before the court in accordance with Section 80-6-502 or 80-6-504;
(2) the individual did not use coercion or force;
(3) there is no more than three years’ difference between the ages of the participants; and
(4) it would be in the best interest of the person to grant diversion.
Both the judge and prosecutor must agree to divert the case. A decision to not divert the case is not subject to an appeal (Sometimes called judicial review).
Do I go to court on a diversion agreement?
This author has seen it both ways. Sometimes you go to court and the diversion is entered into in open court. Other times the diversion agreement is just filed and signed with the court and no court hearing is held.
Double Jeopardy attaches to fully completed diversion agreements in Utah. See Utah Code 77-2-6. No further prosecution for the subject offense or any lesser included offense can occur under our Utah and United State Constitutions for complete diversions agreements.
Likely, any other crime not charged, but has the same factual underlying basis likely is also dismissed forever under Double Jeopardy.
You are entitled to a court hearing if you are alleged to have violated a diversion agreement. If the court finds you violated the diversion agreement, the prosecutor can resume prosecuting you to the fullest extent.
The prosecutor or the court on it’s own motion can bring motions to violation your diversion agreements.
Utah criminal defense attorney Jake Gunter closes around 250 cases per year. He can count on two hands how many times a diversion was used to resolve a case. Prosecutor’s don’t like diversion and feel diversions are a subversion of the equal enforcement of the laws. Another reason for low use of diversions is that pleas in abeyances are commonly used and have much more of a record.
This author is not immigration attorney, but using a diversion agreement on low level misdemeanors seem to have benefit for those who are not US citizens.
The main difference for immigration purposes regarding diversion is that there is no adjudication of guilt. Whereas pleas in abeyances have an adjudication of guilt, an actual guilty plea or no-contest pleas is used in the plea. In diversion agreements no adjudication or guilty plea has to be mentioned or used.
The main difference between pleas in abeyance and diversion agreements is that there is not guilty plea or adjudication of guilty.
The criminal defendant who benefited from a completed diversion agreement can act as if the “charge had never been filed.” See Utah Code 77-2-7.
Once diversion agreements are completed and the charges are dismissed you can move within 30 days to expunge the diversion agreement and all associated documents. Expungement wipes out not only the court filings, but the police reports, prosecutor files, jail records and any other agency that was involved in your diversion agreement.
IF YOU HAVE BEEN CHARGED WITH A UTAH CRIME, CALL/TXT UTAH CRIMINAL DEFENSE ATTORNEY JAKE GUNTER (801) 373-6345. HE CAN USUALLY TELL IN YOU IN 5 MINUTES WHAT HE CAN DO FOR YOU.
