Indiana Law Blog
Introduction
In Indiana, a criminal diversion agreement offers many first-time offenders a second chance. For people facing criminal charges, the concept of diversion may seem confusing, even too good to be true. However, for the right case, it can be a powerful alternative to prosecution—allowing a person to avoid a conviction, jail time, and a criminal record.
This article breaks down what criminal diversions are, who qualifies, how the process works, and why they matter under Indiana law.
What Is a Diversion Agreement?
A diversion agreement in Indiana is a contract between the defendant and the prosecutor. In this agreement:
- The defendant agrees to fulfill certain conditions (like community service, counseling, or staying out of legal trouble) over a period of time—often six months to one year.
- In return, the State agrees to dismiss the charges after successful completion.
- No conviction is entered, and the case does not go to trial.
This process is sometimes called pre-trial diversion, and it is codified at Indiana Code § 33-39-1-8 and offered at a prosecutor’s discretion. Although the statute permits diversion to be offered in Level 5 and 6 felonies, in practice, this is extremely rare.
Diversion agreements are not ordered by a judge—they are handled entirely between the defendant and the prosecutor.
Who Qualifies for Diversion?
Eligibility varies by county and by office, but generally, prosecutors look for:
✅ First-time offenders
✅ Non-violent misdemeanor offenses (like theft, marijuana possession)
✅ Willingness to accept responsibility
Some counties (like Marion County or Hamilton County) offer standardized programs, while others operate on a case-by-case basis.
Common Conditions of Diversion Agreements
A typical diversion agreement may require the defendant to:
- Complete community service hours
- Attend drug or alcohol treatment
- Complete anger management or theft deterrent classes
- Pay restitution to a victim
- Pay administrative program fees (often $400–$500)
- Avoid new arrests or criminal charges
If the defendant violates the agreement, the prosecutor can re-file the case or resume prosecution immediately.
Benefits of Diversion
The biggest benefit: no conviction.
Other benefits include:
- Avoiding jail or probation
- Keeping the criminal record clean (subject to sealing)
- Faster resolution than a trial
- Cost-effective outcome (no trial fees, limited fines)
For juveniles or young adults, a diversion may be the difference between long-term success and a criminal record that limits job and educational opportunities.
Drawbacks and Limitations
Diversions are not always a free pass. Consider:
❌ You must pay fees and possibly attend multiple classes
❌ You waive the right to a speedy trial while the agreement is pending
❌ You may need to admit guilt to enter into the diversion agreement in many counties.
❌ If you violate the agreement, the case returns to square one—possibly with a weaker position
❌ Many offenses are ineligible, especially felonies, crimes of violence, or repeat offenses
Is Diversion the Same as Conditional Discharge?
No. In Indiana, conditional discharge typically applies in marijuana-related cases under IC 35-48-4-12, where the court withholds judgment and imposes conditions. Diversion, by contrast, occurs entirely before conviction or plea, and is prosecutor-controlled, not judge-controlled.
How an Attorney Can Help
A defense attorney can:
- Negotiate eligibility for diversion with the prosecutor
- Help structure favorable terms (e.g., fewer requirements, avoid admission of guilt)
In some counties, having a private attorney significantly increases the chance of diversion, especially where programs aren’t publicly advertised.
What Happens After Completion?
Once the defendant fulfills all terms, the prosecutor files a motion to dismiss the charges. At that point:
- The case is formally dismissed in court records.
- The case will be expunged (sealed) after the case is dismissed.
Frequently Asked Questions
Q: Can I get a diversion for OWI?
A: No. OWIs are exempt from receiving diversions.
Q: Will employers see a diversion?
A: Until the case is dismissed, they can see that it a case is pending and that you have entered into a diversion agreement.
Q: Can I get diversion twice?
A: Almost never. Most prosecutors only allow diversion once in a lifetime, if at all.
Final Thoughts
Indiana’s diversion system provides a rare opportunity to avoid the long-term consequences of a criminal case. However, it’s not guaranteed—it’s a negotiated privilege, not a right.
For criminal defense attorneys, understanding the nuances of local diversion policies is essential. For clients, understanding their obligations and the risk of non-compliance is just as critical.
If you or someone you love is facing a first-time offense, ask an experienced criminal defense attorney about whether a diversion is possible—and whether it’s the right move.
Need Help with Diversion in Indiana?
Our law firm regularly negotiates diversion agreements in Marion County, Hamilton County, Johnson County, and surrounding areas. We help clients understand their options, complete their obligations, and seal their records as soon as the law allows.
📞 Contact us today for a free consultation about your case.