Pre-Trial Diversion in Indiana 

Pre-trial diversion in Indiana is a program that allows certain criminal defendants to avoid conviction by completing a set of conditions prescribed by the prosecutor’s office. The availability of pre-trial diversion programs varies by county in Indiana, and generally, the program is only available to first-time offenders or individuals who have committed non-violent crimes. However, even if a defendant is eligible, the opportunity to participate in a diversion program is completely at the prosecutor’s discretion.  

Defendants who take part in a pre-trial diversion program are typically required to complete certain conditions, such as community service, drug testing, counseling, or other rehabilitation programs. If the defendant successfully completes the program, the charges against them are typically dismissed, and they may avoid a conviction. In contrast, if the defendant fails to complete the program, they may be prosecuted for the original charges placed upon them.  

If you are facing criminal charges in Indiana and think you may be eligible for pre-trial diversion, it’s important to speak with an experienced Indiana criminal defense attorney who understands the specifics of each pre-trial diversion program available throughout the state. If you’d like to speak with one of the former deputy prosecutors from Keffer Hirschauer LLP today, call 317-751-7186 or complete our online contact form to schedule a free case consultation. Given our attorneys’ experience on both sides of the criminal justice system, they know which counties offer pre-trial diversion programs in Indiana and understand what it will take to secure the optimal outcome in the case against you.  

Laws on Pre-Trial Diversion in Indiana 

The laws regarding pre-trial diversion in Indiana are located in Indiana Code 33-39-1-8, which clearly states that a prosecuting attorney has the ability to withhold prosecution against an accused person if the person is charged with a misdemeanor or a Level 5 or 6 felonies, and they agree to the conditions of the pre-trial diversion program offered by the prosecutor. If the person agrees to the conditions, the terms of the agreement shall then be recorded and signed by both the person and the prosecuting attorney and then filed in the court where the charges are pending.  

Any agreement made under this subsection of Indiana law can place a variety of conditions upon the person entering the pre-trial diversion program. Some examples of these conditions include requirements like:  

• work faithfully at a suitable employment or faithfully pursue a course of study or career and technical education that will equip the person for suitable employment. 
• undergo available medical treatment or mental health counseling and remain in a specified facility required for that purpose, including addiction counseling, inpatient detoxification, and/or medication assisted treatment, including a federal Food and Drug Administration approved long acting, nonaddictive medication for the treatment of opioid or alcohol dependence. 
• refrain from harassing, intimidating, threatening, or having any direct or indirect contact with the victim or a witness. 
• receive evidence based mental health and addiction, intellectual disability, developmental disability, autism, and co-occurring autism and mental illness forensic treatment services to reduce the risk of recidivism. 
• support the person’s dependents and meet other family responsibilities. 
• make restitution or reparation to the victim of the crime for the damage or injury that was sustained. 
• report to the prosecuting attorney at reasonable times. 
• answer all reasonable inquiries by the prosecuting attorney and promptly notify the prosecuting attorney of any change in address or employment. 
• participate in dispute resolution either under Indiana Code 34-57-3 or a program established by the prosecuting attorney. 

Pre-Trial Diversion Eligibility 

Per Indiana Code 33-39-1-8, pre-trial diversion is not available to several types of offenders. First and foremost, anyone charged with murder, or Level 1,2,3, or 4 Felony is not eligible for pre-trial diversion in Indiana. In addition, a person charged or arrested for operating a motor vehicle as described in Indiana Code 9-30-5-1 through Indiana Code 9-30-5-5; illegal possession of alcohol by a minor if the offense occurred while the offender was operating a vehicle; driving with a suspended license or in violation of restricted driving privileges; obstruction of traffic by use of motor vehicle; or criminal mischief as a Class B misdemeanor, if the alleged offense occurred while the person was operating a motor vehicle and the person was less than 18 years old at the time of the offense.  

Furthermore, a person who holds a commercial driver’s license and has been charged with an offense involving the operation of a motor vehicle in accordance with the Federal Motor Carrier Safety Improvement Act of 1999 (FMCSIA) is not eligible for pre-trial diversion. This law, which was created by Congress to improve the safety and operation of commercial vehicles and their operators, established a variety of regulations that drivers with a CDL must follow or risk incurring a penalty. Some examples of violations under FMCSIA include: operating a commercial motor vehicle without the required license or with a suspended/revoked commercial driver’s license; operating a commercial vehicle under the influence of drugs or alcohol; falsifying records or documents related to hours of service compliance, like logbooks or electronic logging devices; etc.  

If the offender has not been arrested or charged with any of the criminal offenses listed above, then it will be up to the prosecutor to decide whether it’s appropriate to offer the chance at participating in a pre-trial diversion program. When making this determination, a prosecutor will often consider several factors including, but not limited to, the nature of the crime, the defendant’s criminal history, and the prosecutor’s policies in the county where the case is being heard. Given this, certain types of offenders are generally more likely to be considered for pre-trial diversion in Indiana than others. 

Offenders That Are More Often Given Pre-Trial Diversion in Indiana 

First-time Offenders: Pre-trial diversion is typically reserved for first-time offenders who have no prior criminal record. Defendants who have a history of criminal convictions or who are currently on probation or parole are less likely to be granted pre-trial diversion. 

Non-violent Offenders: Pre-trial diversion is more commonly available for non-violent offenses such as drug possession, property crimes, and other non-violent misdemeanors. 

Low-level Offenders: Pre-trial diversion is generally reserved for lower-level offenses, such as misdemeanors, rather than felony charges. 

Defendants with Strong Ties to the Community: Prosecutors may be more likely to offer pre-trial diversion to defendants who have strong ties to the community, such as stable employment, family support, and a history of community involvement. 

Defendants Showing Remorse: Defendants who show genuine remorse for their actions and take responsibility for their behavior may be more likely to be considered for pre-trial diversion. 

It’s important to note, however, that each case is unique. Therefore, the eligibility criteria for pre-trial diversion will vary depending on the facts of the case, the county in which the person has been charged, and the policies of the prosecutor’s office.  

The Benefits of Participating in a Diversion Program 

Pre-trial diversion in Indiana offers a variety of potential benefits for eligible defendants. While the biggest benefit of participating in a diversion program is certainly the ability to avoid traditional criminal penalties, like incarceration, it is also a great way to promote speedy resolutions to criminal cases. This means defendants can address their charges in a timely and cost-effective manner, especially when compared to a lengthy criminal trial. 

For many offenders, pre-trial diversion programs also offer the chance to address and rehabilitate some of the underlying issues that may have led them to commit a criminal offense. This is often seen through mandatory participation in counseling, drug or alcohol treatment, or educational conditions that are aimed at providing the offender with the support and resources required to make a positive change in their life.  

Most importantly, pre-trial diversion in Indiana provides offenders with a second chance. Under most circumstances, the successful completion of an Indiana diversion program allows individuals who have been arrested or charged with a crime to avoid having a conviction on their criminal record. The reason this is so important is that the sheer existence of a conviction on your criminal can have significant long-term implications. Given this, pre-trial diversion programs are a great way for offenders to protect future employment prospects, housing opportunities, or other aspects of their personal and professional life without having to pursue an Indiana expungement in the future.  

Want to Explore a Pre-Trial Diversion Program in Indiana?

If you are facing criminal charges and are interested in exploring your options for pre-trial diversion in Indiana, it’s important to consult with an experienced criminal defense attorney first. They can advise you on your legal options given the jurisdiction and circumstances of your case.  

If you need help determining your eligibility for pre-trial diversion, Keffer Hirschauer LLP has a team of Indianapolis criminal defense attorneys that are available to assist you. Our attorneys work all throughout the state of Indiana and have a solid grasp on how diversion programs differ county-by-county. To speak with an attorney today call 317-751-7186 or complete our online contact form to schedule a free case consultation.