§ 23-20. Diversion agreements.

(a)

Generally

(1)

After a complaint has been filed charging a defendant with commission of a crime and prior to conviction thereof, and after the chief counsel has considered the factors listed in subsection (b) of this section, if it appears to the chief counsel that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the chief counsel may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the chief counsel.

(2)

The chief counsel may require any defendant requesting diversion to provide information regarding prior criminal charges, education, work experience and training, family residence in the community, medical history, including any psychiatric or psychological treatment or counseling, and other information relating to the diversion program.

(b)

Grant of diversion; factors to consider. In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the chief counsel shall consider at least the following factors among all factors considered.

(1)

The nature of the crime charged and the circumstances surrounding it;

(2)

Any special characteristics or circumstances of the defendant;

(3)

Whether the defendant is a first-time offender and if the defendant has previously participated in diversion;

(4)

Whether there is a probability that the defendant will cooperate with and benefit from diversion;

(5)

Whether the available diversion program is appropriate to the needs of the defendant;

(6)

The impact of the diversion of the defendant upon the community;

(7)

Recommendations, if any, of the involved law enforcement agency;

(8)

Recommendations, if any, of the victim;

(9)

Provisions of restitution; and

(10)

Any mitigating circumstances.

(c)

Provisions of diversion agreement.

(1)

A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the chief counsel, the chief counsel shall act to have the criminal charges against the defendant dismissed with prejudice. The diversion agreement shall include specifically the waiver of all rights under the law or the constitution of the state or of the United States to a speedy arraignment and a speedy trial. The diversion agreement may include, but is not limited to, provisions concerning payment of restitution, including court costs and diversion costs, residence in a specified facility, maintenance of gainful employment, and participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services.

(2)

The diversion agreement shall state:

a.

The defendant's full name;

b.

The defendant's full name at the time the complaint was filed, if different from the defendant's current name;

c.

The defendant's sex, race, and date of birth;

d.

The crime with which the defendant is charged;

e.

The date the complaint was filed; and

f.

The municipal court with which the agreement is filed.

(d)

Conditioning diversion on plea prohibited; inadmissibility of agreement; other matters. No defendant shall be required to enter any plea to a criminal charge as a condition for diversion. No statements made by the defendant or counsel in any diversion conference or in any other discussion of a proposed diversion agreement shall be admissible as evidence in criminal proceedings on crimes charged or facts alleged in the complaint. The following shall not be admissible as evidence in criminal proceedings that are resumed:

(1)

Participation in a diversion program;

(2)

The facts of such participation; or

(3)

The diversion agreement entered into.

(e)

Failure to fulfill diversion agreement; satisfactory fulfillment; records.

(1)

If the chief counsel finds at the termination of the diversion period or any time prior thereto that the defendant has failed to fulfill the terms of the specific diversion agreement, the chief counsel shall inform the municipal court of such finding, and the municipal court, after finding that the defendant has failed to fulfill the terms of the specific diversion agreement at a hearing thereon, shall resume the criminal proceedings on the complaint.

(2)

If the defendant has fulfilled the terms of the diversion agreement, the municipal court shall dismiss with prejudice the criminal charges filed against the defendant.

(3)

The diversion fee shall be set by the county administrator.

(Code 1988, § 23-17; Ord. No. O-23-98, §§ 1, 2, 5-21-1998; Ord. No. O-72-16 , § 1, 12-15-2016)