Pretrial Diversion in Massachusetts

An alternative to prosecution in some criminal cases can be pretrial diversion. Pretrial diversion attempts to divert some defendants from the process of a criminal justice trial and into a program operated by the court. Criminal cases that can be diverted must meet certain requirements which can be found under the Massachusetts General Law Chapter 276A Section 1-11. If you or someone you know is faced with a criminal charge you may be eligible for pre-trial diversion, it is imperative that you seek a Boston criminal defense lawyer to guide and advise you. The Law Office of Patrick J. Murphy has decades of experience with pretrial diversion in Massachusetts and will be able to assist you should you find yourself in that situation.

Pursuant to G.L. c. 276A, diversion by the District Court and Boston Municipal Court was not previously available. As of April, 2018, the diversion program has been expanded in a newly amended chapter that has eliminated the requirement of the Probation Department to certify and approve programs to which a defendant may be diverted. The updated law now provides that an eligible defendant can be diverted to any program of community supervision and services including, but not limited to, educational, medical, social, vocational, substance use disorder treatment and psychological services. Additionally, the court considers corrective and prevention guidance, training, performance of community service work, and counseling. There is also a provision for residence in a halfway house or other suitable placement, and other rehabilitative services created to protect the public and benefit the defendant where the court receives a recommendation from a program that a person would benefit from participation in such a program.

Additionally, pursuant to G.L. c. 276A there are no longer age restrictions for Massachusetts pretrial diversion, which means that an adult of any age can be diverted if they are eligible. In order to be eligible for diversion, the defendant must not have previously been convicted of a crime in any criminal court proceeding after having reached the age of 18, and cannot have any outstanding warrants, continuances, appeals or criminal cases pending in any court in the Commonwealth of Massachusetts or any court in any other state or the United States. An experienced Massachusetts criminal defense attorney can make the best argument as to why you should be eligible for diversion even in cases where eligibility may be lacking.

An eligible candidate for pretrial diversion also must be charged with a crime or offense which may be punishable by term of imprisonment and one where the District Court may exercise final jurisdiction. It may not be one of the following offenses:

  • Any offense in c. 265, except assault and battery pursuant to G.L. c. 265, § 13A(a)
  • Any offense in c. 119 or c. 268A
  • Any offense for which a penalty of incarceration greater than five years may be imposed
  • Any offense for which there is a minimum term penalty of incarceration or which may not be continued without a finding or placed on file
  • Any offense which is ineligible for decriminalization pursuant to G.L. c. 277, §70C, except for assault and battery in violation of G.L. c. 265, § 13A(a).

Additionally, the newly amended chapter requires the judge to take into consideration the recommendation of any victim as defined in section 1 of chapter 258B regarding the diversion of the defendant, and also to provide an opportunity for a recommendation by the prosecution. The judge is not required to accept this recommendation and it is not binding. However, the statute prohibits a police department or district attorney from accepting an offender into a program that is under their control.

If you have been charged with a crime and think you may be eligible for pre-trial diversion, you should contact an experienced Boston criminal defense attorney immediately. The Law Office of Patrick J. Murphy has successfully defended individuals and he has sought and obtained pretrial diversion for juveniles, students and adults for decades. Criminal defense lawyer Murphy's skill and expertise combined with his devotion to his clients continues to result in favorable outcomes. To contact the Law Office of Attorney Patrick J. Murphy today for a free and confidential evaluation of your case, please call 617-367-0450 or contact form on our website.

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