Pretrial Diversion, First Offender, Conditional Discharge
Georgia law recognizes that probation, prison, and a permanent criminal record is not always in the best interest of justice, considering the crimes charged. Georgia’s representatives and the courts understand that defendants of nonviolent crimes, particularly drug and minor property crimes, may be young or going through a rough patch in life, and that they might just need some encouragement to get back on the "straight and narrow". Because of this reality, the legislature, courts, and prosecutors often offer defendants an alternative program to probation, prison, and getting stuck with a conviction.
While these programs are designed to treat the problems that led the person to crime, they are often very involved and come with restrictions. Different programs are also restricted for different types of crimes, and are most often only offered for a defendant's first offenses. Some programs have the option of having the records restricted after completion, and in many cases successfully completing the program will result in a practically clean criminal record. This article will outline four programs (pretrial diversion, first offender sentencing, conditional discharge, and drug courts) and Georgia's records restrictions (similar to an "expungement" in other states).
While this article is meant to provide you in-depth insight into these programs, studying up online is NEVER a substitute for having the best legal representation possible to defend your interests and guide you through a court system that is filled with dangers and pitfalls. At Zeliff | Watson, both of our lawyers have placed hundreds of clients into diversion programs and similar first offender sentences. From our first meeting, we will discuss your best options, along with a strategy that will give you the best chance of obtaining one of these favorable outcomes. Our defense is centered around one goal: to clean your record and restore your good name. We are available for same-day appointments, and can always make time for an emergency phone consultation to discuss the basics, until we can meet face-to-face.
Read and understand the basics, then call us!
Pretrial diversion is typically a program offered by the prosecutors to first-time offenders facing relatively minor criminal charges. I describe pretrial diversion as a handshake between us and the prosecutor. You agree to abide by negotiated terms, and they agree to postpone your case being called to court. It essentially delays the trial process and allows you to complete a program designed to rehabilitate. If you successfully complete the program in the time allotted, then the prosecutors drop the charges.
Each county has its own requirements as to which defendants may be eligible for pretrial diversion, and for what crimes. You will always have to waive certain rights for the program, like the constitutional right to a speedy trial and a grand-jury indictment, and additional requirements can vary greatly from county to county.
Pretrial diversion programs can take months to complete, and the defendant will be charged for the fees of the program, including its administration and the defendant's own supervision (if required). A defendant may also have to submit to a professional evaluation of his or her issues relating to the crime, treatment and counseling, community service, complete abstinence from drugs and alcohol (and random drug screens), and restitution payments to anybody harmed from the underlying crime. Successful completion also requires that the defendant not be arrested for another crime while completing a pretrial diversion program.
Successful completion of a pretrial diversion program will result in a dismissal, and you can honestly state that you have never been convicted of that crime. The arrest record may also be restricted (discussed below). Failure of the program may result in prosecution of the underlying crime, and if convicted the defendant may face up to the maximum sentence for the crime. This is an important, and beneficial difference, between pretrial programs and the sentences discussed below: If you do not complete the program, the worst that can happen is that your case is kicked back out to the court system, and you start all over.
First Offender Sentence
A First Offender Sentence (First Offender Treatment) is requested when the defendant pleads guilty or is found guilty of a crime. Typically, this may only be used, as the name suggests, for a person's first offense; however, some minor infractions will not limit a person's later use of first offender treatment. By statute, DUI and specific violent and sexual convictions are not eligible for first offender treatment. The judge has the discretion to allow first offender treatment for a defendant. First Offender sentences typically include fees, programs, and monitoring for a probationary period and may also include some time in jail.
If the sentence is successfully completed, then the judge essentially retroactively removes the conviction and it will not appear as a conviction on the person's record. Further, the arrest record may also be restricted (discussed below). If the defendant fails the program, then he or she may be resentenced to up to the maximum sentence of the original conviction. This is a key distinction to be aware of: If you fail on a First Offender sentence, you maybe sentenced to the max for the crime which you pled, regardless of how long you’ve been on probation.
The Georgia Conditional Discharge law allows a Court to discharge and dismiss a defendant's first conviction of a drug crime upon the completion of a probation program. The drug crime can either be directly for using or possessing the drug, or a property crime caused by the defendant's substance addiction and abuse. The defendant may only use this process once, and it may only be used for drug-related crimes.
The Conditional Discharge probation program can last up to five years and is similar to the Pretrial Diversion program discussed above, but, you are under sentence and on probation. Upon completing the requirements, the Court will dismiss the charges and it will be as if you have never been convicted, subject to restricted records and a disposition that specifically references it as a Conditional Discharge. If you fail to complete any of the terms of the Conditional Discharge then the Court may sentence you guilty and sentence you up to the maximum sentence for the crime.
A Drug Court program is an alternative sentence for more severe drug-related crimes, including felony possession and property crimes. Drug Courts are managed county-by-county and the courts have wide discretion in whether to allow a defendant to pursue this option. The Drug Court programs are intensive 18 to 24 month intervention/rehabilitation programs where participants are under close supervision.
The program involves a graduated series of phases that includes a combination of therapy and counseling, drug testing, and court appearances. If the defendant completes the Drug Court then the charges will be dismissed; if the Defendant is unable to complete the program or violates the terms of the program then he or she may be sanctioned within the Drug Court or terminated from the program and subject to jail time.
Records Restriction (Expungement)
A Records Restriction in Georgia is comparable to an expungement in other states. If an arrest or conviction is able to be restricted from the record, the defendant can have it taken away from the public records. Only law-enforcement, later criminal prosecution, and background checks for employment in certain special industries (nursing, airlines, teaching, government positions, etc.) may access the restricted records. For most practical purposes, an arrest or conviction that becomes restricted may have little or no further effect on the defendant's life.
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Counties, courts, and prosecutors regularly exercise their wide discretion in applying these alternative sentences in Georgia. Neighboring counties may have widely different practices and some programs may simply not be available in certain counties. Further, these programs will be individually tailored to fit the defendant and the crime charged. Ultimately it will be your choice as a defendant whether to choose one of these programs, if available.
For these reasons, it is very important to talk to a local attorney who is familiar with your issues and the local court systems. The attorneys at Zeliff | Watson are experienced, local attorneys who may thoroughly answer your questions and help you navigate this extremely complex area of law. We regularly defend those accused of crimes in all courts within Forsyth, Fulton, Cobb, Gwinnett, Hall, Dawson, Lumpkin, Cherokee, and neighboring counties. Call us 24/7/365 to begin your defense and restore your good name.