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Letter to a Client

This is the email I sent to my client who asked me whether she should take deferred or pretrial diversion. I print it because it is a question that is asked all of the time. Her case was a little different only because she was charged with two misdemeanor drug cases:

“A*******,

Pretrial Diversion is tough. The sole benefit – and it’s a good one – is that once completed, the case is fully dismissed. As a result, you can get the case expunged after the two year statute of limitations has run. An expunction is powerful, in that no trace of your conviction is left for law enforcement, employers etc to see. That is the upside. The downside is that it requires you to admit to your offense and subject yourself to a bevy of conditions that are far more onerous than what you would be required to do on a deferred adjudication alone. For instance, it is not unusual for you to do 80 hours of community service for a pretrial diversion and only have 24 for a deferred. As well, a pretrial diversion is a zero tolerance proposition. One bad drug test, or failure to report is more likely to mean failure than on a deferred. That is not to say that a judge wouldn’t revoke you on a deferred for an infraction, but it is not the Judge that makes that determination on a pretrial diversion. The decision is left to a prosecutor, who may not be as forgiving. This is especially so in the Court you are in.

Deferred is a whole lot better than it used to be. Most importantly, a deferred can be “non-disclosed” from your record. Although this is not as powerful as an expunction. If your case is “non-disclosed”, it will not be subject to the prying eyes of the public, including employers. Unlike expunction, however, law enforcement and some entities such as licensing organizations can find out about the arrest. I would always tell a client who hopes to go to medical school, law school or become a pharmacist that they should assume a deferred will be found. On the other hand, the vast majority of employers, credit bureaus and apartment renters should not be able to locate the arrest and result.

Truthfully, about half of my clients in your situation choose deferred over pretrial diversion. The conditions are lighter and the term of supervision is almost always shorter. I am always wary of advising clients to go the pretrial diversion route because of the requirement the District Attorney has that my client admit to the offense. That is a Hobson’s Choice to me, since there is no guarantee that the DA will grant pretrial diversion. Then what does a client do? If she goes to trial, it is unlikely that this admission will be allowed at trial since it was made in the plea negation process, but what does she do if she wants to take the stand and testify contrary to her statement? So far, I haven’t faced this quagmire, but I expect it will happen one day.

The choice is yours, and I know it would be easier if I told you what to do. However, I don’t make decisions for clients – even the young ones. I give advise and am honest about their chances. Only you know what your future holds and what can be acceptable for you. Either choice you make, I doubt it will affect you substantially in the long term. You have two cases, and if I am able to get the prosecution to dismiss one in return for a deferred plea, you will be ahead of the game there. If the Chief of the Division agrees to give you pretrial diversion for both cases, you will have an opportunity that few have. Let me know what you want to do.

– Ed Chernoff”

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