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Pretrial Diversion

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 first offenders who have committed crimes that did not result in injury to a victim and are otherwise non-violent and non-aggressive in nature, or for certain other offenders who 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 arrest record 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. The participant must reside within the state of Georgia during the program, and must be able and willing to travel to the Cobb County Drug Treatment Court laboratory for drug testing whenever instructed to do so. To accomplish such testing, the participant must maintain a valid, current, 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.
  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 or education programs 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.

The following persons will generally not qualify for participation in the Pretrial Diversion Program:

  1. Persons with extensive juvenile criminal records.
  2. Persons who have previously been arrested or convicted, as an adult, of any criminal offense, unless unusual circumstances indicate that an exception should be made.
  3. Persons who have escaped custody or willfully failed to appear in court while on bond.
  4. Persons who are currently dependent upon drugs and/or alcohol or have used illegal drugs after arrest.
  5. Currently affiliated gang members.

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.

At the time of orientation into the program, the offender will be required to pay an administration fee which will not exceed $1000.00, pursuant to O.C.G.A. § 15-18-80. If restitution is owed to a victim or to the Cobb County Circuit Defender’s Office for the services of an appointed attorney, such funds must also be paid at the time of orientation.

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.

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Accountability Courts
Accountability Courts

Veterans Court, Mental Health Court, Drug Treatment Court

Eligibility

Do Pretrial Diversion participants have to live in Cobb County?

No. However, all drug screening must be done at the Cobb County drug lab. Therefore, all participants must be able to get to the lab during business hours whenever prompted. This will usually mean that anyone living outside the metro Atlanta area will not be able to comply with this condition.

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?

No. All screening must be done at the Cobb County lab. The practice of allowing outside screening became unmanageable and has been discontinued.

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

No. Any positive drug screen result will result in termination from the program. Participants should refer to the participant handbook for a list of medications which can be safely taken and consult with their doctors to find alternative, safe medications.

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 will be grounds for termination 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 will result in termination from the program.

Fees

Can the $425 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.

Can the $500 drug screening fee be waived?

This fee represents the actual cost of testing supplies incurred by the lab, and therefore will not be waived.

What must be paid at program orientation?

The administrative fee, the drug screening fee, any restitution owed, and any reimbursement for appointed attorney’s fees must be paid at orientation. Defendants will not be allowed to participate in orientation unless all monetary obligations are paid. Delayed or installment payments will not be accepted under any circumstances.

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.