TACDL
National Association of Criminal Defense Lawyers
Tennessee Bar Association
National College of DUI Defense
iapp
DUI Defense Lawyers Association

Diversion and Expungement

If you are charged with a crime, it is important to contact an attorney to discuss the possibility of diversion. There are two types of diversion, but judicial diversion is more common.

Pretrial Diversion

If the state offers pretrial diversion, it is agreeing to suspend prosecution, meaning the defendant does not plead guilty nor is he or she found guilty, and in exchange the defendant is obligated to complete certain requirements (i.e. community service). In Davidson County, before you are allowed to enter into pretrial diversion you must set up a time to be interviewed by the assistant district attorney prosecuting the case. If you successfully complete diversion, then the case is dismissed and you or your attorney will submit an Order of Expungement to the Tennessee Bureau of Investigation and the charge will be removed from your record. If you fail to complete or abide by your obligations then the state will revoke your diversion and move forward with prosecuting your case. This program is very selective and cannot accept you until you have been screened by the Sheriff's Office, recommended by the DA, and accepted by the Judge.

You are ineligible for pretrial diversion if you were previously granted pretrial or judicial diversion or if you have a prior Class A or B misdemeanor conviction. Additionally, you are not eligible if you are currently charged with a felony offense, a DUI, or other crime listed under Tenn. Code Ann. § 40-15-105 (a)(1)(B)(iii).

Judicial Diversion

Judicial Diversion is commonly referred to as “40-35” due to it being governed by Tenn. Code Ann. § 40-35-313. Of the two, this is by far the most common diversion prosecutors offer. With judicial diversion, the defendant enters a conditional plea of guilt in front of the Judge, and is placed on probation for the charged offense; the sentence must be the maximum length if the conditional plea is for a misdemeanor. For example, if you plead pursuant to § 40-35-313 to a Class A misdemeanor, which carries a maximum jail sentence of 11 months and 29 days, your probation would have to be supervised for 11 months and 29 days. If you successfully complete the probation by paying all appropriate fees and fines, completing the conditions of your probation (which may include classes, drug and alcohol treatment, etc.), and not getting rearrested, then your charge will be dismissed and can be expunged. If you violate your probation then you could lose your diversion status, resulting in a permanent conviction on your record. Your sentence could also go into effect, which means that you could have to serve out the length of your entire sentence in jail; this applies regardless of if you violate on your very first day or your very last day.

To qualify for judicial diversion, you must not have a prior Class A misdemeanor conviction, for which you served any amount of time, or a felony conviction. Additionally, you can only get judicial diversion once. The state ensures that a defendant qualifies by requiring a TBI certification of eligibility before a plea of judicial diversion is accepted by the Court.

Unlike pretrial diversion, your 40-35 may be used for a low level felony offense. However, there are certain offenses, such as a DUI or Class A or B felony, that 40-35 may not be used for.

Expungement

Expungement is the process by which your legal criminal record is erased. An expungement is not limited to convictions, but includes charges as well. For example, if you were arrested but the state dropped the charges against you then you may have the record expunged. Alternatively, if you successfully complete judicial diversion your conviction can be expunged.

If you qualify, you or your attorney will need to file for expungement with the court in which the matter originated. Meaning, if you have a conviction in Davidson County Criminal Court you may not file for expungement in Sevier County Circuit Court. Once you file for expungement, the court clerk will review the documents and forward them to the Judge and the Tennessee Bureau of Investigation. If you have any charges that were “dismissed with costs” then you must settle your debt with the court before your record may be expunged.

Visit the Tennessee Courts website, the website of the Davidson County District Attorney General, or the TBI website for more information regarding expungements in Tennessee.

Contact Baker Associates

It is important to have an attorney who understands the importance of a) not wasting your one shot at judicial diversion on a case that can be won and b) who is familiar with the types of cases that warrant diversion. Contact our knowledgeable criminal defense attorneys today to discuss the possibility of pretrial or judicial diversion in your case. With offices in Nashville and Sevierville, we proudly serve Middle and Eastern Tennessee.