Pretrial Diversion, First Offender, Conditional Discharge
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 they are and how they can help you. 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 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.
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.
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 family violence crimes may be young or simply going through a rough patch in life and that they might just need some encouragement to get back on the right path. Because of this, 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, both of 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.*
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 is typically a program offered by prosecutors to first-time offenders facing certain 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 prosecutor will drop the charges.
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 for the fees of the program, including an administration and supervision fee. Note, even with hefty 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! 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. 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 Sentence
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 on first offender probation.
If the sentence is successfully completed, then the judge essentially retroactively removes the conviction and it 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 sentenced 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 four 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.
The Georgia Conditional Discharge law allows a court to discharge and dismiss your first conviction of a drug crime upon the completion of probation. 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. You may only use this process once and it may only be used for drug-related crimes.
The 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, amongst 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.
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 of treatment and accountability courts. Drug court programs vary from 18-24 months typically and involve a mixture of group therapy, 12 step programs, frequent 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 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.
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 almost always 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.
4. Veteran Courts- Veteran courts are similar to the above programs, but tailored to Veterans’ problems, particularly with alcohol and drug abuse after their service. 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)
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, you can have it taken away from public records. Only law-enforcement, later criminal prosecutions and background checks for employment in certain special industries (nursing, teaching, government positions, etc.) may access the restricted records. Record restriction is the gold standard for clearing your good name. 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 easier to navigate and your record can be restricted in an expedited manner, often.
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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 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.