Understanding Colorado’s Adult Pretrial Diversion System 18-1.3-101

Understanding Colorado’s Pretrial Adult Diversion System 18-1.3-101 – 2013 Law Encourages – Describes Stages Of Adult Diversion – In May of 2013 the Colorado State Legislature enacted a series of laws that were intended to encourage Colorado jurisdictions to utilize Adult Diversion programs all around the state.

The law is encompassed in Section 18-1.3-101CRS. The law is closely analyzed below – section by section – using a format I have used many times A bracket [my initials HMS – and an introduction to every significant section -with an end bracket]. This approach allows the reader to delve into the actual law and use the actual words of the state law as a guide to understanding the law itself.

The key provisions in this new law are many – but section 3 sets out the basics for qualifying These include:

1. The nature of the crime charged and the circumstances surrounding it;
2. Any special characteristics or circumstances of the defendant;
3. Whether diversion is consistent with the defendant’s rehabilitation and reintegration; and
4. Whether the public interest will be best served by diverting the individual from prosecution

….requires an comprehensive analysis of the politicss and policies that underlie each and every Colorado DA’s office — there are no set rights and no set rules.. the elected DA makes the determination of when to make a “diversion offer.”

[HMS: The legislative intent of any law – including this one – states the intent and purpose in the passage of the law – here – the key reasons for diversion programs is to ..”prevent defendants from committing additional criminal acts, restore victims of crime, facilitate the defendant’s ability to pay restitution to victims of crime, and reduce the number of cases in the criminal justice system. “]

The intent of this section is to facilitate and encourage diversion of defendants from the criminal justice system when diversion may prevent defendants from committing additional criminal acts, restore victims of crime, facilitate the defendant’s ability to pay restitution to victims of crime, and reduce the number of cases in the criminal justice system.

Diversion should ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions. A district attorney’s office may develop or continue to operate its own diversion program that is not subject to the provisions of this section. If a district attorney’s office accepts state moneys to create or operate a diversion program pursuant to this section, the district attorney’s office must comply with the provisions of this section.

[HMS– The next section sets a 2 year limiton the period of the diversion program – with the only enlargement of this period for one year – if there is a need to expand the time frame to pay restitution – but then and only then – assuming an inability to pay back the restitution in the period allotted.]

In any case, either before or after charges are filed, the district attorney may suspend prosecution of the offense for a period not to exceed two years. The period of diversion may be extended for an additional time up to one year if the failure to pay restitution is the sole condition of diversion that has not been fulfilled, because of inability to pay, and the defendant has a future ability to pay. During the period of diversion the defendant may be placed under the supervision of the probation department or a diversion program approved by the district attorney.

[HMS– Probably the most significant provision – this section sets out when an individual “is appropriate” for a diversion “offer” by a DA’s office.]

. Each district attorney that uses state moneys for a diversion program pursuant to this section shall adopt policies and guidelines delineating eligibility criteria for pretrial diversion, and may agree to diversion in any case in which there exists sufficient admissible evidence to support a conviction.

In determining whether an individual is appropriate for diversion, the district attorney shall consider:

1. The nature of the crime charged and the circumstances surrounding it;
2. Any special characteristics or circumstances of the defendant;
3. Whether diversion is consistent with the defendant’s rehabilitation and reintegration; and
4. Whether the public interest will be best served by diverting the individual from prosecution. [HMS– This next section discusses briefly the application for diversion– that is – the collection of information about the adult diversion applicant necessary for the District Attorney to make a diversion based offer.]

Before entering into a pretrial diversion agreement, the district attorney may require a defendant to provide information regarding prior criminal charges, education and work experience, family, residence in the community, and other information relating to the diversion program . The defendant shall not be denied the opportunity to consult with legal counsel before consenting to diversion. Legal counsel may be appointed as provided under article 1 of title 21, C.R.S.

[HMS– Section 5 addresses diversion offers in Colorado Domestic Violence cases – setting out specific and more onerous requirements before a person with DV allegations may qualify for a domestic violence diversion offer… those additional requirements are:

1. Charges must be actually filed.
2. The defendant must have the opportunity to consult with counsel – and,
3. The defendant must complete a “domestic violence treatment evaluation” – which includes the use of a domestic violence risk assessment instrument, conducted by a domestic violence treatment provider approved by the domestic violence offender management board as required by section 16-11.8-103].

In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of an offense, the underlying factual basis of which involves domestic violence as defined in section 18-6-800.3 (1), is not eligible for pretrial diversion unless charges have been filed, the individual has had an opportunity to consult with counsel, and the individual has completed a domestic violence treatment evaluation, which includes the use of a domestic violence risk assessment instrument, conducted by a domestic violence treatment provider approved by the domestic violence offender management board as required by section 16-11.8-103 (4), C.R.S.

The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program.

[HMS– Like Colorado Domestic Cases – certain low level Colorado Sex Offender cases may be eligible for a diversion offer if:

1. Charges are actually filed.
2. The defendant must have the opportunity to consult with counsel – and,
3. The defendant must complete a sex-offense-specific evaluation , which includes the use of a sex-offense-specific risk assessment instrument, conducted by an evaluator approved by the sex offender management board as required by section 16-11.7-103 (4), C.R.S.]

In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of a sex offense as defined in section 18-1.3-1003 (5) is not eligible for pretrial diversion unless charges have been filed and, after the individual has had an opportunity to consult with counsel, the individual has completed a sex-offense-specific evaluation, which includes the use of a sex-offense-specific risk assessment instrument, conducted by an evaluator approved by the sex offender management board as required by section 16-11.7-103 (4), C.R.S.

The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, that the individual is appropriate for the program.

Notwithstanding that a successfully completed diversion agreement does not constitute a history of sex offenses for purposes of sections 16-11.7-102 (2) (a) (II) and 16-22-103 (2) (d), C.R.S. , the information constituting the crimes charged and facts alleged shall be available for use by a court, district attorney, any law enforcement agency, or agency of the state judicial department, if otherwise permitted by law, in any subsequent criminal investigation, prosecution, risk or needs assessment evaluation, sentencing hearing, or during a probation or parole supervision period .

[HMS– the following sex crimes are are excluded from consideration for diversion.]

Notwithstanding any other provision of this section, an individual accused of any of the following sexual offenses is not eligible for participation in a diversion program established in a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section:

1. Sexual assault as described in section 18-3-402;
2. Sexual assault on a child as described in section 18-3-405;
3. Any sexual offense committed against an at-risk adult or an at-risk juvenile, as described in section 18-6.5-101 (1) and (1.5);
4. Any sexual offense committed with the use of a deadly weapon as described in section 18-1-901 (3) (e);
5. Enticement of a child, as described in section 18-3-305;
6. Sexual exploitation of a child as described in section 18-6-403;
7. Procurement of a child for exploitation, as described in section 18-6-404;
8. Sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; or
9. Any child prostitution offense in part 4 of article 7 of title 18.

Diversion programs may include, but are not limited to, programs operated by law enforcement upon agreement with a district attorney, district attorney internally operated programs, programs operated by other approved agencies, restorative justice programs, or supervision by the probation department. References to “deferred prosecution” in Colorado statutes and court rules shall apply to pretrial diversion as authorized by this section .

[HMS– This section has multiple parts that set up the procedures to be followed in concluding a diversion agreement- they are similar to a contract and Colorado’s deferred judgment and sentence agreement.]

[HMS– The agreements are to be in writing and signed by all parties…]

1. All pretrial diversions shall be governed by the terms of an individualized diversion agreement signed by the defendant, the defendant’s attorney if the defendant is represented by an attorney, and the district attorney. [HMS– The agreement shall include a waiver of the applicant’s speedy trial rights and must have provisions as related to restitution payments and supervision costs.]
2. The diversion agreement shall include a written waiver of the right to a speedy trial for the period of the diversion. All diversion agreements shall include a condition that the defendant not commit any criminal offense during the period of the agreement. Diversion agreements may also include provisions, agreed to by the defendant, concerning payment of restitution and court costs, payment of a supervision fee not to exceed that provided for in section 18-1.3-204 (2) (a) (V), or participation in restorative justice practices as defined in section 18-1-901 (3) (o.5). Any pretrial diversion supervision fees collected may be retained by the district attorney for purposes of funding its adult pretrial diversion program. The conditions of diversion shall be limited to those specific to the individual defendant or necessary for proper supervision of the individual defendant. A diversion agreement shall provide that if the defendant fulfills the obligations described therein, the court shall order all criminal charges filed against the defendant dismissed with prejudice. [HMS– this provision ( c ) provides for the option of a probation department to require an evaluation at any point during the diversion program and various treatment and other “rehabilitative services that mat be required… unlike a contract – this appears to permit the probation department to ADD requirements to the diversion agreement – this is an untested provision.]
3. The diversion agreement may require an assessment of the defendant’s criminogenic needs, to be performed after the period of diversion has begun by either the probation department or a diversion program approved by the district attorney. Based on the results of that assessment, the probation department or approved diversion program may direct the defendant to participate in programs offering medical, therapeutic, educational, vocational, corrective, preventive, or other rehabilitative services. Defendants with the ability to pay may be required to pay for such programs or services. [HMS– This next provision 9 (d) – provides for a risky statement by the defendant that may be used to “impeach” that defendant – if the diversion program fails and a trial ensues – AND the defendant testifies at that trial =- this provision repeats below in section 10(e) below.]
4. The diversion agreement may include a statement of the facts the charge is based upon authored by the defendant and agreed to by the defendant’s attorney if the defendant is represented by an attorney and the district attorney . The statement is admissible as impeachment evidence against the defendant in the criminal proceedings if the defendant fails to fulfill the terms of the diversion agreement and criminal proceedings are resumed. [HMS– Section 9 (e) – prevents – as a condition of a diversion offer – requiring a defendant to plea guilty – such as is the case in a Colorado deferred judgment agreement it also provets a DA from using any evaluations (not statements) to be used by DA’s in a later trial in the event a defendant fails at the diversion program.]
5. A defendant shall not be required to enter any plea to a criminal charge as a condition of pretrial diversion . A defendant’s or counsel’s statement in a diversion conference or in any other discussion of a proposed diversion agreement, including an evaluation performed pursuant to subsections (5) and (6) of this section, other than a statement provided for in paragraph (d) of this subsection (9), shall not be admissible as evidence in criminal proceedings on the crimes charged or facts alleged. [HMS– no court filing about the diversion program needs to be filed in the court file unless probation gets involved – also any court case must be stayed – frozen – during the diversion period of time.]
6. If the district attorney agrees to offer diversion in lieu of further criminal proceedings and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement may be either filed with the court or held by the parties. A court filing shall be required only if the probation department supervises the defendant. When a diversion agreement is reached, the court shall stay further proceedings. [HMS– Here the section describes the rights and responsibilities upon successful completion of a diversion program – but also – the procedures to be followed if a defendant is alleged to have failed in a diversion program.]

1. During the period of diversion, the supervising program or agency designated in the diversion agreement shall provide the level of supervision necessary to facilitate rehabilitation and ensure the defendant is completing the terms of the diversion agreement.
2. Upon the defendant’s satisfactory completion of and discharge from supervision the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons . A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose. [HMS– 10 ( c ) provides for the right to SEAL – EXPUNGE your record after a successful diversion program run.]
3. At any point after a diversion agreement is entered a defendant may petition the court to seal all arrest and other criminal records pertaining to the offense, using the procedure described in section 24-72-308, C.R.S. Unless otherwise prohibited under section 24-72-308 (3) (a), C.R.S., the court shall issue a sealing order if requested by the defendant following successful completion of a diversion agreement. [HMS– In the event of an alleged violation of the diversion agreement – certain rights attach to the diversion participant to fight to keep the diversion program offer – here the DA files a motion to revoke the agreement OR institutes charges in the form of a complaint – information – or indictment. ]
4. If the defendant violates the conditions of the diversion agreement, the supervising entity shall provide written notice of the violation to the defendant, the district attorney, and the court. The district attorney, in his or her sole discretion, may initiate revocation of a diversion agreement by the filing of a criminal complaint, information, or indictment, or if charges have already been filed, by giving the court notice of intent to proceed with the prosecution. The defendant may, within fourteen days after the first court appearance following such a filing, request a hearing to contest whether a violation occurred. [HMS– This next section sets out the same kind of rights that are accorded to a person in a probation violation hearing under 16-11-206.] The district attorney has the burden by a preponderance of the evidence to show that a violation has in fact occurred, and the procedural safeguards required in a revocation of probation hearing LINK pursuant to section 16-11-206, C.R.S., shall apply . The court may, when it appears that the alleged violation of the diversion agreement is a pending criminal offense against the defendant, continue the diversion revocation hearing until the completion of the criminal proceeding. If the court finds a violation has occurred, or a hearing is not requested, the prosecution may continue. If the court finds the district attorney has not proven a violation, the court shall dismiss the criminal case without prejudice and return the defendant to the supervision of the diversion program to complete the terms of the agreement.
5. If a defendant is prosecuted following a violation of a diversion agreement, a factual statement entered pursuant to paragraph (d) of subsection (9) of this section is admissible as impeachment evidence. Any other information concerning diversion, including participation in a diversion program, including an evaluation performed pursuant to subsections (5) and (6) of this section, the terms of a diversion agreement, or statements made to treatment providers during a diversion program, shall not be admitted into evidence at trial for any purpose.

About The Author:H. Michael Steinberg – Email The Author: hmichaelsteinberg@hmichaelsteinberg.com or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-7777.

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