Pretrial Diversion

KRS 533.250 sets the basic rules. Diversion may be used for a person charged with a Class D felony who, in the ten years before the offense, has not been convicted of a felony, been on probation or parole, or been released from a felony sentence.

A person charged with a Class C felony may become eligible in one situation. Under KRS 533.251, the court may allow the person to complete a substance abuse treatment or recovery program first. If the person succeeds, he or she may enter diversion on the same terms as a Class D case.

• A person charged with an offense for which KRS 532.045 prohibits probation, parole, or conditional discharge.
• A person who has committed a sex crime as defined in KRS 17.500.
• A person who has been on pretrial diversion within the past five years.
• A person whose felony history does not meet the ten-year rule above.

1. 1The person, usually through a defense attorney, applies in writing to the Circuit Court and to the Commonwealth’s Attorney. The statewide court form for this is AOC-347. Under the 17th Circuit’s approved protocol, the application comes after indictment and at least 30 days before trial, and the person must agree to give up the right to a speedy trial if diversion is granted.
2. 2The Commonwealth’s Attorney’s office runs a criminal record check to confirm eligibility.
3. 3The office interviews the victim, if there is one, and explains the program and the proposed conditions. When the victim has died, or when the office considers it necessary, it interviews a family member. The victim’s views may be presented to the court.
4. 4The office may look further into the person and the offense, then makes a recommendation to the Circuit Judge.
5. 5The person enters a guilty plea or an Alford plea, and the judge approves or denies diversion. Approval happens in open court, and the office tries to notify the victim and family so they can attend.

Under KRS 533.254, the rules for probation conditions apply to diversion as far as possible. Restitution must be ordered whenever a victim suffered a monetary loss. Other conditions may include:

• Committing no new offense.
• Supervision by the Division of Probation and Parole.
• Drug or alcohol testing. A person charged with a Class D drug felony, or whose record shows a present need for treatment, must first take part in a treatment or recovery program if suitable space is available, unless the court finds exigent circumstances.
• GPS or alcohol monitoring, if the Commonwealth’s Attorney requests it and the court orders it.

The court assesses a diversion supervision fee, which may be based on ability to pay and may be waived for indigency. Diversion can last up to five years, or longer if needed to finish paying restitution. Applying for diversion, and being placed on it, pause the statute of limitations for the charge.

If the person completes the agreement, the charge is listed as “dismissed-diverted” and is not a criminal conviction.

If the person does not complete the terms on time, or is not making satisfactory progress, Probation and Parole, the victim, or a peace officer may tell the Commonwealth’s Attorney’s office, which may ask the court for a hearing. The court uses the same standards as a probation revocation, and the person has the same rights. If the court voids the agreement, the office decides whether to proceed on the guilty plea, which can lead to sentencing.

Under KRS 533.258, a person who completes diversion does not have to list the case on an application for employment, a license, or anything else, unless federal law requires it. Diversion records cannot be used as evidence in any court case without the person’s consent. Whether and when the court record can be expunged is a separate question that a lawyer can answer for a specific case.