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Pretrial Diversion

Program Updates

District Attorney Joyette M. Holmes has implemented several key changes to the Pretrial Diversion Program with the express intent to expand the pool of eligible participants and make the program more readily accessible and affordable to those deserving of the program’s benefits. Changes already incorporated into the program include the following:

  • Reducing the administrative fee from $425.00 to $200.00
  • Amending eligibility guidelines to allow participation by out-of-state residents
  • Expanding options for required community service work
  • Adding options for mentoring programs for youthful offenders
  • Removal of unnecessary restrictions not related to an applicant’s case
  • Granting more flexibility to the Pretrial Diversion Coordinator to deal with non-compliance issues.

About the Program

The Pretrial Diversion Program was created pursuant to O.C.G.A. § 15-18-80 as an alternative to the prosecution of certain offenders in the criminal justice system. The program is designed for low-risk-level offenders who have committed crimes that did not result in serious injury to a victim, or have committed crimes involving domestic violence.

Everyone accepted to participate in the Pretrial Diversion Program will be required to enter into a contractual agreement, and will be subject to an individualized program of supervision, which may include counseling, education, drug screening, and community service work, for a specified period of time in lieu of traditional prosecution.

The decision to request to participate in the Pretrial Diversion Program must be made freely and voluntarily and should be made with the advice of counsel. Participation will occur prior to adjudication (that is, before the defendant pleads or is found guilty), and successful completion of the program will result in dismissal or Nolle Prosequi of the charges. The program is designed to benefit the individual participant as well as the overall criminal justice system for Cobb County.

Acceptance and Eligibility Guidelines

Acceptance into the Diversion Program will generally be based upon consideration of the following:

  1. The nature of the crime,
  2. The prior criminal history of the offender,
  3. The victim's response to the defendant's petition for diversion.

A charge of Driving Under the Influence (O.C.G.A. §40-6-391) will not be dismissed, nor a Nolle Prosequi entered, due to completion of the Pretrial Diversion Program. However, other charges associated with such an arrest may be eligible for such dismissal or Nolle Prosequi. Drug related charges, and charges related to domestic violence, may require increases in the overall length of the program as well as the frequency and intensity of drug testing and/or counseling.

Eligibility

In general, participants must meet the following eligibility criteria; deviation from these criteria may be considered when appropriate by the Diversion Coordinator, with the consent of the District Attorney, after consideration of the factors above.

  1. The participant must be at least 17 years of age and voluntarily petition the District Attorney requesting consideration for participation in the Pretrial Diversion Program.
  2. Participants must be willing to comply with drug-screening directives from the Pretrial Diversion Coordinator and must maintain a valid, state-issued form of identification.
  3. The participant, as part of the application process, must waive certain constitutional and statutory rights.
  4. The participant must agree to pay all applicable monetary obligations, which may include an administrative fee, restitution to victims, reimbursement for appointed attorney’s fees, and/or drug screening fees. Such payments must be made in full prior to beginning this program, unless other arrangements have been agreed to in writing by the Pretrial Diversion Coordinator either before or at orientation.
  5. The participant must agree to be supervised for a reasonable period of time (typically either six or nine months), which will be determined following an evaluation of the individual circumstances of his or her case.
  6. The participant must agree to perform a specified amount of community service, and/or to complete at his/her expense counseling, mentoring, or education programs as required by the Diversion Coordinator. The necessity of counseling will be determined following an evaluation of the individual circumstances of the offender and his or her case.
  7. The circumstances surrounding the defendant’s arrest and subsequent conduct must reasonably lead to the conclusion that the defendant is amenable to correction and unlikely to offend again.

Individuals affiliated with criminal gangs and gang activity will not qualify for participation in the Pretrial Diversion Program.

To be considered for acceptance in the Pretrial Diversion Program, the offender’s attorney will be required to file application materials with the Diversion Coordinator of the District Attorney’s Office. The Coordinator will assess the eligibility of the individual offender based upon the criteria outlined above. If the offender is rejected the case will be returned to the assigned Judge and Assistant District Attorney for prosecution. If the offender is accepted, a contractual agreement outlining the conditions of participation will be prepared and executed.

The administrative fee, any restitution owed, and any reimbursement for appointed attorney’s fees are expected to be paid at orientation.  However, upon a showing of good cause, the administrative fee may be paid in installments while in the program, if approved in writing prior to or at orientation.  Defendants will not be allowed to participate in orientation unless all monetary obligations are paid or proper alternative arrangements made.

Upon execution of the contractual agreement, the offender will be enrolled in the Pretrial Diversion Program for a specified period of time, and for the duration of the program the offender will be under the supervision and monitoring of the Diversion Coordinator of the District Attorney’s Office. Upon successful completion, bond will be released, the charges dismissed or a Nolle Prosequi entered (except as to a charge of DUI), and pursuant to O.C.G.A. § 35-3-37 the criminal history record regarding the charges will be restricted and may be sealed.

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Eligibility

Do Pretrial Diversion participants have to live in Cobb County?

No.  Participants are not required to reside in Cobb County.

Are violent offenses eligible for this program?

Cases of family violence can be considered for the domestic violence track of Pretrial Diversion. Violent offenses which are not related to a domestic relationship generally are not eligible.

How does the domestic violence track differ from the traditional program?

In cases of domestic violence, the length of the program is increased from six months to nine months to allow time for the participant to complete a 24-week batterer’s intervention program.

Drug Screening

Can a participant find a comparable lab outside Cobb County for drug screening?

Generally, no.  In most circumstances, screening will be done at the Cobb County lab.  However, upon a showing of good cause after a full discussion with the Pretrial Coordinator, alternative arrangements for screening may be approved.  It should be noted that prior approval is required, absent extenuating circumstances.

Will a positive drug screen be excused if the participant has a valid prescription for a medication which may cause that result?

It depends. You should take medications only as prescribed by a medical professional. You are required to provide a list of all medications currently taken pursuant to a doctor's prescription at orientation (or as soon after as is possible). If your prescribing physician believes that no alternative medications will adequately address your medical needs, you must have him/her document this opinion in writing and you must provide that documentation to the Diversion Coordinator immediately. Compliance with this procedure will determine how positive drug screens will be viewed.

Is there a “grace period” of 30 days or more during which a participant may test positive for marijuana at the beginning of the program, while the drug metabolizes out of the system?

No. Any test indicating the use of an illegal drug at any time after the defendant’s arrest may be grounds for termination/denial from this program.

Are participants allowed to drink alcohol in moderation?

No. Participants may not consume any alcohol. Therefore, any positive result for alcohol on any drug screen may result in termination from the program.

Fees

Can the administrative fee be waived?

Only in very rare cases would the fees be waived and at the discretion of the District Attorney’s Office. Any participant requesting such a waiver should be prepared to document an extraordinary circumstance or hardship which would make such action necessary.

What must be paid at program orientation?

The administrative fee, any restitution owed, and any reimbursement for appointed attorney’s fees are expected to be paid at orientation.  However, upon a showing of good cause, the administrative fee may be paid in installments while in the program, if approved in writing prior to or at orientation.  Defendants will not be allowed to participate in orientation unless all monetary obligations are paid or proper alternative arrangements made.

Program Requirements

Can a participant do community service online (for example, by using quickcommunityservice.com)?

No. Online community service is not accepted by this program.

Will a participant be provided with a list of approved community service organizations and a log for recording service hours?

At orientation for the Pretrial Diversion Program you will be provided a list of approved community service locations but not a log for recording hours.

Will community service hours completed before program orientation be accepted?

Yes. Community service performed after arrest but before program orientation can be counted toward this program’s requirements if the hours are completed at a location approved by the Pretrial Diversion Coordinator.

Can community service be performed for a private business if the participant is not paid?

No. Community service must provide a benefit to the community, not simply free labor for a private business.

Court and Legal Issues

Once a defendant has filed an application to participate in Pretrial Diversion, may he or she be excused from upcoming court dates?

That question can only be answered by the judge hearing the case. No one involved with this program has authority to excuse a defendant or an attorney from a court date.

Can a defendant apply for this program prior to an accusation or indictment being filed?

Yes. Please refer to the application instructions included with the application paperwork. However, participants and their attorneys should be aware that cases requiring payment of restitution must be indicted or accused.

If a defendant completes this program, will the record of the arrest be restricted?

Charges that are nolle prossed or dismissed because a defendant successfully completed the Pretrial Diversion Program will be restricted from public view.