Will the completion of a diversion program require someone to disclose the offense on an application or will their record be expunged?

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Will the completion of a diversion program require someone to disclose the offense on an application or will their record be expunged?

My daughter was caught shoplifting today for a minor amount of merchandise (under $10). The police officer suggested that she may be eligible for diversion. She is currently seeking her first job.

Asked on June 2, 2011 under Criminal Law, Nebraska

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

As long as your daughter's has not been in trouble with the law before, this is exactly the type of case that pre-trial diversion was created for.  It is a program designed to give certain first-time offenders a second chance to avoid being marked by a criminal conviction.

While the details of these programs vary somewhat from jurisdiction to jurisdiction, the basics are usually the same. An individual who is charged with a first criminal offense (typically minor nature) and who appears to be an individual not likely to be a repeat offender, may be given the option of diversion. If the person accepts the offer, then they will enter a plea of guilty to the offense but the judge will not enter an order for same at that time (a person is not guilty until a judge issues a finding of guilt and enters a conviction).

Instead the judge withholds adjudication for a certain period and places the defendant under certain restrictions similar to being on probation. If the individual successfully complies with the terms and of their pretrial diversion, then at the end of the time period the charges are dismissed and the person is not convicted of the crime.

However, if the defendant violates the terms of their diversion agreement, then they will be brought back to court for a sentencing hearing. Since the person already entered a guilty plea to the charge, they no longer have the right to go to trial on the case. Therefore, if the judge determines that the defendant failed to complete the program, then the defendant will be convicted and sentenced for the crime.

Basically, pretrial diversion gives first-time offenders a second chance at having a clean criminal history. So if they are later asked about arrests and/or convictions that can legally answer "No" on any employment or like applications.  The person's arrest, etc should automatically be removed from their record.  Checking on this at the end of the diversion program is a good idea.  If the record has for some reason not been cleared then the person can ask to have it "expunged" (i.e. taken off).

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