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Pretrial Diversion, First Offender, Conditional Discharge

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Have you heard about pretrial diversion, first offender, or conditional discharge under Georgia's criminal laws? If so, we are sure you have many questions about what these different options are and how they can help you clear your good name and keep you out of jail. Peter Zeliff and Evan Watson are not just trial lawyers, but are experts on Georgia laws designed to save a first-time offender from a permanent criminal record. Read this helpful, updated 2022 information, then give us a call to discuss the specific facts of your case. No two cases are the same, and there are many minefields to navigate under first offender laws in Georgia courtrooms. But, out team at Zeliff | Watson knows these laws in and out and will tailor your defense around them.

Don't get burned later because you accidentally or ignorantly entered a plea without good advice and counsel! Do NOT wait until you have a more serious case to find out you foolishly used your Georgia first offender plea on a much less severe misdemeanor case. Do NOT fall for the advice that you MUST use your first offender on any charge you may have.

If you meet the following criteria, you ESPECIALLY need our Team on YOUR side:

1. You have no past arrests or criminal record.

2. You are a productive member of society.

3. You care about your future.

4. You have people who depend on you.

5. You're willing to do what it takes and listen to our professional advice to effectively restore and clear your good name.

6.  You have listened to conflicting and confusing information from friends, family, and google about how to best defend yourself and are burned out.

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 congressional representatives and the courts understand that people accused of committing nonviolent crimes--- particularly drug charges, minor property crimes, and certain family-related crimes may be young or simply going through a rough patch in life and might just need some help and encouragement to get back on the right path. With this understanding, the legislature, courts, and prosecutors have the legal ability to offer 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 accountability courts) and Georgia's record 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, our lawyers have placed into the thousands 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.

*Note if you are reading this information and charged with a driving under the influence (DUI) charge, these options are NOT available in your case. Unfortunately, DUI is the only misdemeanor exception to first offender and pretrial diversion laws and you must defend your DUI charges for either a “not guilty” or a lesser charge like reckless driving to clean up your record. The only way DUI charges can be restricted is if you are found not guilty of all charges brought, or the prosecuting attorney dismisses all charges without you admitting guilt to any lesser offense. Click this link to read about how a reckless driving charge could be a good DUI case outcome.*

Read and understand the basics, then call us! We will enable you to be in the best position possible to restore your hard earned, good reputation.

Pretrial Diversion in Georgia 

Pretrial diversion is typically a program offered by prosecutors to first-time offenders facing certain nonviolent 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 formal court and trial process and allows you to complete a program designed to rehabilitate. If you successfully complete the program in the time allotted, the prosecutor will drop the charges and agree to clean up the arrest from your record.

Each court has its own requirements as to which cases may be eligible for pretrial diversion and for what crimes. You will almost 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 court to court.

Pretrial diversion programs usually take 3-12 months to complete and you will be charged the fees of the program, including an administration and supervision fee. Note, even with pretrial diversion fees, you are almost always saving significant money because you will not be paying state taxes and surcharges on top of a fine you would have otherwise had! (For example, a $1000 fine will usually come out to over $1400 after state surcharges or "court costs" are tacked on, no matter what.  Whatever the diversion fee is, is what it is- no hidden fees.)  You may also have to submit to a professional evaluation centered around issues relating to the crime, treatment and counseling, community service, complete abstinence from drugs and alcohol (and random screens for alcohol and drugs), and restitution payments to anybody harmed from the underlying crime.  Our team has formed many very strong relationships over the years with these third-party providers and will be happy to put you in the hands of good, competent help who the Courts will trust in doing whatever requirements needed to satisfy your obligations.  Successful completion also requires that you 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). If you fail to complete the program it will usually result in prosecution of the underlying crime, though sometimes you must waive the right to a jury trial after attempting PTD. 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. (Though the much more ideal outcome is to finish the program and get the dismissal!)

First Offender Sentences 

A First Offender Sentence is requested when you plead guilty or are 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 you. First Offender sentences typically include fees, programs, and monitoring for a probationary period and may also include some time in jail. Entering a first offender plea does involve going to court and standing before the judge. In fact, you will enter a guilty plea, accepting full responsibility before a judge will allow you to serve a sentence under the first offender act. 

If the sentence is successfully completed, then your case will be dismissed and will not appear as a conviction on your record. Further, the arrest record may also be restricted (discussed below). If you fail to comply with a first offender sentence, then you may be re-sentenced to up to the maximum sentence of the original conviction as well as have your first offender status stripped away, meaning your guilty plea remains on your record. This is a key distinction to be aware of: If you fail on a First Offender sentence, you maybe resentenced to the max for the crime which you pleaded to, regardless of how long you’ve been on probation.

For example, lets say you entered a first offender plea to 4 years on probation for a minor drug charge and you are arrested for a new drug offense 3 years into the sentence (with one year left on probation). Typically, you would only be facing a maximum of having the one remaining year revoked, but, on first offender, the judge could sentence you to a full 4-year term of probation or even prison. So, it goes without saying that if you are serving a first offender sentence that you want to be aware and abide by all terms and conditions if your probation. If you are reading this information because you are facing a revocation of your first offender, call us immediately to discuss how we can avoid this disaster- it is usually possible with the right approach.

Conditional Discharge Pleas in Georgia 

The Georgia Conditional Discharge law allows a court to discharge and dismiss your first conviction of most drug crimes upon the completion of probation. The drug crime can either be directly for using or possessing the drug, or a non violent property crime caused by substance addiction and abuse. You may only use this process once and it may only be used for drug-related crimes.  There is also a conditional discharge sentence sometimes available for first alcohol related crimes, under certain circumstances, however, usually alcohol related offenses (other than DUI) are better resolved with pretrial diversion as discussed above.

Conditional Discharge probation can last up to five years and is similar to first offender pleas discussed above, meaning, 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- just like a first offender case discussed above.

Conditional discharge pleas are normally treatment-intensive. Meaning, you will almost always be required to have a substance abuse evaluation and follow any and all recommend treatment. We have clients attending 12 step groups, state-mandated group treatment, individual therapy, among other courses and regimens designed to help.

Further, there is also a conditional discharge plea available for a first minor in possession of alcohol charge. If you do happen to have an MIP, give us a call to discuss using this plea option for your case.

Accountability Courts

An accountability court is essentially a court-run treatment program available on certain types of offenses. The most common accountability courts and a brief description of each is below:

1. Drug Courts- Drug court programs are, perhaps, the original and most well known of the treatment and accountability courts. Drug court programs vary from 18-24 months typically and involve a mixture of group therapy, 12 step programs, frequent (2-3x weekly) alcohol and drug testing, and court sessions with other participants as well as the Judge and the program staff. Drug court is usually offered to repeat drug offenders, though; sometimes even first-time offenders will be referred or eligible to participate. One of the benefits of drug court is that often the prosecutor will be willing to allow your case to be dismissed if you successfully complete the program. An attorney will need to negotiate the exact terms of your case with the prosecutor before your entry into drug court.

2. DUI Courts- DUI courts are very similar to structure as drug courts, though one of the biggest differences is that Georgia law does not allow a DUI charge to be dismissed, even if you successfully complete the program. Therefore, the biggest benefit to enrolling in a DUI court is usually to mitigate, or lessen, jail time. DUI courts generally only take 2nd (or subsequent) DUI cases- though some DUI courts routinely deem you eligible if your breath/blood alcohol concentration was unusually high at the time of your arrest. DUI courts range from 12-24 months and again combine a mix of treatment groups, 12 step meetings, alcohol and drug screening, and court sessions.  While DUI Courts do not have the authority to dismiss or expunge your DUI charges, most courts do offer incentives to successful participants to include reduced or zero fines, reduced or zero community service work, and the ability to obtain a limited driving permit faster than what the Georgia Dept. of Driver Services would usually allow. 

3. Mental Health Courts- Mental health courts are designed to obtain treatment for people in the court system with severe and persistent mental illness. Due to the high numbers of applicants, mental health courts have to be very selective in the cases they take on and devote their resources to. A documented history of a mental illness is  required to be eligible. These courts focus on helping obtain and maintain steady treatment for their participants, as well as court oversight of progress, usually by having regularly scheduled court sessions and frequent testing for alcohol and illicit drug use.

4. Veteran's Courts- Veteran's courts are similar to the above programs, but tailored to Veterans, particularly with an alcohol and substance abuse history. While still a relatively new endeavor, more Georgia courts are pushing to obtain and start up Veterans court programs.

5. Family Treatment Courts- Family treatment courts are geared towards treating substance abuse cases where children are involved and at-risk because of their parents’ situation. Family treatment courts are generally 18+ months and require a mix of court appearances, screening for alcohol and drugs, substance abuse treatment, and meetings with case workers about your children and home life.

Records Restriction (Expungement) Laws in Georgia 

Record Restriction in Georgia is a term used almost interchangeably with expungement. If an arrest, conviction, or case is able to be restricted from your record, it means it will not be available through certain state-maintained databases (GCIC) for the general public to see. Law enforcement, prosecutors and background checks for employment in certain special industries (nursing, teaching, government positions, etc.) may access these restricted records. Record restriction is the gold standard for clearing your good name under Georgia law. If it can be achieved, it will be as close to erasing the past as is possible.

In recent years, Georgia record restriction laws have become somewhat more favorable to the average person and your record can be restricted in an expedited manner, if available under your circumstances. 

Call Zeliff | Watson Today to Discuss Your Defense & Clear Your Name

County prosecutors and judges regularly exercise 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 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.

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