MCPO's Pretrial Diversion Program gives individuals an opportunity to avoid a criminal conviction or points on their driving record while still being held accountable for their actions. Successful completion of the Pretrial Diversion Program results in the dismissal of a defendant’s charges. Once charges are dismissed, the court will "expunge" the records meaning they are sealed for public purposes. 

When applying for employment, school, certifications and licensing, or even credit, applicants are often asked about their criminal history and background checks are completed. The dismissal of charges means that if you are asked about whether or not you’ve ever been convicted of a criminal offense, you may honestly answer “no” to that question. If a background check is run, the case will likely not show at all, but if it does, the the court records will show that the defendant participated in the Pretrial Diversion Program and that charges were dismissed. 

Indiana Code 33-39-1-8 controls when prosecution may be withheld and the decision to offer a diversion on a case-by-case basis is up to the assigned Deputy Prosecuting Attorney. 

Diversions are not permitted in the following circumstances:

• Where the individual is charged with Murder or a Level 1, 2, 3, or 4 felony
• Where the person holds a commercial driver’s license (CDL).
• Violations involving the operation of a motor vehicle in accordance with the federal Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Public Law 106-159; 113 Stat. 1748). 
• Offenses under Ind. Code § 9-30-5-1 through 9-30-5-5, which include all OWI offenses. 

If the defendant is under 18 years old, diversions are not permitted for:

• Ind. Code § 7.1-5-7-7, illegal possession of alcohol by a minor (if offense includes operation of vehicle)
• Ind. Code § 9-30-4-8, unauthorized operation of a motor vehicle (if offense includes operation of vehicle) 
• Ind. Code § 35-44.1-2-13 Obstruction of Traffic, a Class A misdemeanor – Level 5 felony
• Ind. Code § 35-43-1-2(a) Criminal Mischief (if offense includes operation of vehicle)

In deciding whether to offer a diversion, factors considered by the MCPO include:

• The nature and severity of the offense;
• Any special characteristics or difficulties of the offender;
• Whether the Defendant is a first-time offender;
• Whether there is a probability that the Defendant will cooperate and benefit from the diversion program;
• Whether an evidence based practice and/or other program is available and appropriate for the Defendant;
• The impact of the diversion upon the community;
• Whether the Defendant is likely to reoffend;
• Provisions for restitution; and
• Any mitigating or aggravating circumstances.

At its most basic level, a Diversion is an agreement with the Prosecutor's Office and a Deferral is an agreement with the court.  

Deferrals are often used in situations when the law precludes the use of a diversion such as for OWIs.  

For a Deferral, the individual must plead guilty to the crime (or plead liable in the case of an infraction) and the court will withhold judgment for the duration of the deferral.  After completing any terms required by the court, the case is dismissed.  If any terms of the deferral are violated, in addition to any sanction the court may order, the conviction will enter and the individual will be found guilty, or liable, for the offense. 

Pursuant to Indiana Code section 33-39-1-8, among other things, a diversion agreement may include conditions that a defendant: 

• A waiver to a bench trial; 
• Work faithfully at suitable employment or schooling; 
• Undergo medical treatment or mental health/addiction counseling; 
• Support the person’s dependents and meet other family responsibilities; 
• Make restitution to the victim for damage or injury that was sustained; 
• Refrain from harassing, intimidating, threatening, or having any direct or indirect contact with the victim or a witness; 
• Report to the prosecuting attorney at reasonable times to answer reasonable inquiries and promptly notify the prosecuting attorney of any change in address or employment; and participate in dispute resolution.

Advent eLearning.  The Madison County Prosecutor’s Office has contracted with Advent eLearning to provide additional services that can be required by a deputy prosecutor to be completed by a defendant during a diversion in the deputy prosecutor’s discretion. These courses include:

• Alcohol & Substance Abuse. 
• Alcohol & Substance Abuse II. 
• Anger Management. 
• Anger Management Level II.
• Animal Care. 
• Boating & Outdoor Safety. 
• Corrective Thinking. 
• Defensive Driving. 
• Financial Crimes. 
• Financial Responsibility. 
• Harassment. 
• Hunting Responsibility. 
• Juvenile Conflict Resolution.
• Marijuana Education. 
• Marijuana Education Level II. 
• Parenting. 
• Prostitution (John School). 
• Revenge Porn. 
• Shoplifting. 
• Theft. 
• Theft Level II. 
• Traffic Safety. 
• Underage Alcohol & Substance Abuse. 
• Underage Alcohol & Substance Abuse Level II. 
• Victim Impact Panel. 

The length of a diversion is determined by the assigned Deputy Prosecuting Attorney.  However, the length of the diversion may not exceed the maximum duration of a sentence that would otherwise be imposed.  The standard lengths of diversions are:

Level 5 felony: 1-6 years

Level 6 felony: 6 months - 2.5 years. 

Class A misdemeanor: 1 year. 

Class B or C misdemeanor: 6 months. 

Infractions: 6 months.