What Is the Difference Between Pre-Plea Diversion and Pre-Trial Diversion?

With a pre-plea diversion in California, you make an agreement with the prosecutor before the trial actually begins. In comparison, a pre-trial diversion program begins after the charges against you have already been filed.

At its heart, a pre-plea diversion program is where you agree to certain measures, such as addiction treatment or community service, in exchange for not getting charged with a crime. This type of approach is fairly common with drug and alcohol crimes as well as certain misdemeanors.

However, it’s important to keep in mind that the agreement must be fully upheld. If you don’t complete your treatment or community service, the prosecutor can reinstate the original charges.

Does Pre-Trial Diversion Count as a Conviction for Immigration?

In the past, the Board of Immigration Appeals (BIA) has discussed pre-trial diversions and immigration consequences. During an unpublished 2018 decision, the BIA stated that a pre-trial diversion doesn’t count as a conviction for immigration purposes as long as the defendant didn’t admit guilt.

How to Avoid Immigration Consequences Through a Pre-Plea Diversion in California

Often, pre-plea diversion programs will accept a defendant if they don’t have a previous criminal history. However, some programs will even accept you if you have a few charges on your record. No matter how lenient the pre-plea diversion program is, they won’t accept you if you are considered a threat to public safety. For example, you generally can’t get accepted into any kind of diversion program if you have been convicted or charged with violent crimes.

Whether you want to sign up for the pre-plea diversion program or not depends on how it is set up. For immigration purposes, any diversion program that involves admitting guilt risks your deportation. Additionally, admitting guilt is an issue if you have a solid case against the prosecution. Charges can be reinstated if you don’t complete the diversion program. An admission of guilt means you’ll skip the trial and go straight to the sentencing process.

Ideally, you’ll be offered a pre-plea diversion option that doesn’t involve an admission of guilt. Once you agree to the diversion, the next steps can vary based on the type of charge involved. The following list includes the most common requirements for alcohol diversion programs.

• Taking and passing a driver safety course
• Successfully finishing alcohol rehab
• Paying restitution to the victim if there was an accident
• Adding an ignition interlock device to the car

No matter what the charges are, you will be required to pay all of the required program fees and to follow any restraining order in effect. In general, you must not be charged with a crime or arrested for a set amount of time. If any community service hours are required, you will need to complete them.

If you were unsuccessful at receiving a pre-plea diversion, you can also talk to your attorney about post-conviction relief for immigration purposes. This type of option involves vacating, expunging, or changing convictions so that you can avoid deportation and immigration consequences.

Learn More About Avoiding Immigration Consequences Through California’s Pre-Plea Diversion Programs

If you qualify for it, a pre-plea diversion in California could help you avoid deportation. This type of program allows you to avoid getting charged and convicted with a crime. In exchange, you must complete certain requirements, such as alcohol rehab or community service.

However, there are important caveats to remember as well. Pleading guilty as a part of your pre-plea diversion can nullify the immigration benefits, so don’t make any decision without talking to your attorney first. To learn more about immigration and pre-plea diversions, reach out to our lawyers today.