Diversions are programs offered in the state of Tennessee, through which certain 1st-time offenders might be eligible to avoid serving time and having a criminal record. Diversions are periods of probation during which the general prosecution of your case or your sentence is deferred. During this probation, you must follow certain conditions, and if you do so successfully, the charges against you or your sentence will be dropped, and your charges and arrest might be eligible for expungement. In order to apply for a diversion program in Tennessee, you need to submit a $100 application to the Tennessee Bureau of Investigation, who then runs your criminal background and history in order to certify that you are eligible for diversion. The attorneys here at Best & Brock are experienced and familiar with the process of diversion, and can take care of everything on your behalf. It is important to know that while you, your lawyers, and the district attorneys might come to an agreement, the possibility of diversion is still subject to the approval of the court. It is ultimately left to the judge’s discretion, and for more serious offenses or crimes, the judge might request that an eligibility hearing be required.

Pretrial Diversion

Pretrial diversion is the type of diversion where the prosecution agrees to suspend the general prosecution of your case. This type of diversion can occur any time throughout your case, once you, your lawyer, and the prosecutors have come to an agreement about the conditions and length of your potential diversion. Under pretrial diversion, you do not have to enter a plea or receive a sentence, but if you do not complete the diversion successfully, the prosecution of your case can continue as it was originally.

Pretrial Eligibility

TN Code § 40-15-105:

(a)(1)(B) For purposes of this section, “qualified defendant” means a defendant who meets each of the following requirements:
- (i)The defendant has not previously been granted pretrial diversion under this chapter or judicial diversion under § 40-35-313;
- (ii) The defendant does not have a prior conviction for a Class A or B misdemeanor or for any class of felony; and
- (iii) The charged offense for which the prosecution is being suspended is not a felony or any of the following offenses:
  - (a) Driving under the influence of an intoxicant as prohibited by § 55-10-401;
  - (b) Any misdemeanor sexual offense prohibited by title 39, chapter 13, part 5;
  - (c) Conspiracy, under § 39-12-103, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
  - (d) Criminal attempt, under § 39-12-101, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
  - (e) Solicitation, under § 39-12-102 to commit any Class D or Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
  - (f) Child abuse or child neglect or endangerment as prohibited by § 39-15-401;
  - (g) Domestic assault as prohibited by § 39-13-111; or
  - (h) Any misdemeanor offense committed by any elected or appointed person or employee in the executive, legislative, or judicial branch of the state or any political subdivision of the state, which offense was committed in the person’s official capacity or involved the duties of the person’s office.

Judicial Diversion

Judicial diversion is the program offered typically near the end of your case, or if your charges are not eligible for pretrial diversion. Judicial diversion differs from pretrial diversion in the results of your completion or failure to complete the probationary period. In pretrial diversion, the prosecutors defer any sort of prosecution, and failure to complete your probation results in those proceedings continuing. But under judicial diversion, if you fail to complete the probationary period, you will be found guilty of the charges against you. Conversely, if you complete the probation successfully, you will be found not guilty, and the charges and/or arrest might be eligible for expungement.

Judicial Eligibility

TN Code § 40-35-313:

(a)(1)(B)(i) As used in this subsection (a), “qualified defendant” means a defendant who:
- (a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
- (b) Is not seeking deferral of further proceedings for any offense committed by any elected or appointed person in the executive, legislative or judicial branch of the state or any political subdivision of the state, which offense was committed in the person’s official capacity or involved the duties of the person’s office;
- (c) Is not seeking deferral of further proceedings for a sexual offense, a violation of §39-15-502, § 71-6-117, § 71-6-119, or § 39-15-508, driving under the influence of an intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-106 prior to service of the minimum sentence required by § 39-13-106, or a Class A or B felony;
- (d) Has not previously been convicted of a felony or a Class A misdemeanor for which a sentence of confinement is served; and
- (e) Has not previously been granted judicial diversion under this chapter or pretrial diversion.

Probation Conditions Under Diversion

The conditions that you might have to follow under diversion must be agreed upon by both parties, and while laid out in both diversion statutes, there is not an exhaustive list. The conditions must be “reasonable” as determined by the court, and most conditions are what you might expect. Conditions could include that you do not commit another offense during your probation, that you participate in a treatment, rehabilitation, or educational program, that you make restitution to a victim, or that you use a monitoring device. The specific conditions depend heavily on the charges against you, and are usually tailored to show that you have completed or participated in practices that prove compliance with the relevant law(s).

Forms and Examples

This is an example of the application you fill out in order to see whether or not you are eligible for diversion in the state of Tennessee:

To fill out and submit an application for diversion you can visit the Diversions page on the Tennessee Bureau of Investigation’s website, here. Once you submit an application, the TBI will process the request, run your criminal background and history, and send back a certification letter with your eligibility status. This is an example of that certification:

As you can see in this example, if you’re eligible, your certification will state “The defendant has not had a prior disqualifying felony or misdemeanor conviction”. If you successfully complete your diversion, your charges and/or arrests might be eligible for expungement. Expungement is the process of removing charges and arrests from your criminal record, however the TBI will maintain a sealed copy for the sole purpose of recording that you have participated in a diversion program. Below you can see an order for expungement:

These records are extremely important to hold on to, as expungement means that the courts will destroy public records of your charges and/or arrests, and this piece of paper is the only documented proof that those records were actually expunged. If for some reason you need to participate in a background check, prior records that have been expunged will most likely not show up. But if they do, and if the background check is something extensive that allows access to expunged records, you need this proof to show those running the check that you qualified for expungement.

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