Pre-Filing Diversion: The Secret to Getting Your Case Not Filed

Most people who call our office after an arrest believe that once they’re arrested that criminal charges are unavoidable or inevitable That is simply not true.

If you’ve been arrested for a crime in California, that does not automatically mean that you are going to be charged in criminal court. Many of our clients who call us don’t realize that the officers who arrested them do not have that authority to file charges against them. What they do is they investigate the case, and they take down witness statements, they gather and collect evidence, and they compile an investigation and a police report that gets handed over to the DA for a decision on filing. The law enforcement officers submit a request, along with the police report, to the District Attorney’s Office to file specific charges.

What Is Pre-Filing Diversion?

If you’re proactive, you can leverage this feature in the criminal justice system that’s called pre-filing diversion. And the name speaks for itself. It’s pre-filing, which means that you have an opportunity to intervene and request that charges not be filed against you in exchange for some rehabilitation efforts on your part. By showing rehabilitation, you earn that diversion. This means your case is taken out of the criminal justice process and diverted so you don’t have to go to court. If you have been arrested for a low-level crime, for example, your defense attorney can immediately engage with the prosecutor and provide favorable background and information about you, your family, your career, your accomplishments, highlighting the lack of criminal history, highlighting the facts of the case and your defense in a written document and a timeline that shapes the narrative in a way that’s helpful for you. Information or additional investigation that the prosecutor may not have been aware of. Your defense attorney, if you engage with them early, may be able to advocate for you and request that you be granted an opportunity at pre-filing diversion.

Why Early Intervention Matters After an Arrest

At Knight Law we’ve had many cases where we have intervened right on time before the DA or the prosecutor made a decision on what charges to file and whether to file charges. And that extra information was sufficient for the prosecutor to refer our requested cases to pre-filing diversion. Getting pre-filing diversion can lead to a successful outcome in your criminal case. It’s the best-case scenario you can hope for if you’ve been arrested and are facing the threat of criminal charges short of getting a case rejected for filing. And this is something that you should talk to your criminal defense lawyer and ask specifically about pre-filing diversion.

Pre-Filing Diversion vs. Post-Filing Diversion

Many clients ask us what the difference is between pre-filing diversion and post-filing diversion. There is a big distinction. Pre-filing is before charges are filed, and you need to work with your attorney and intervene right on time before the prosecutor decides on filing in your case. If you complete all the program requirements, you are pretty much guaranteed a non-filing in your case, which, depending on your type of case, can be successful outcome.

And pre-filing is different from post-filing. You can still be eligible and receive post-filing diversion if your case is filed, if charges are filed against you. But that usually comes after an appearance in court where you must go to court and there’s a complaint against you. So you’re now involved in the criminal justice system. You are being processed by the system versus the pre-filing stage where your charges have not reached the court, where you do not have to go to court. If you complete the requirements that the program imposes, you can expect to walk away without a criminal conviction from that arrest.

Who May Qualify for Pre-Filing Diversion?

How do you establish your eligibility for this program? Some counties, including Santa Clara County, have a pre-filing diversion program. The county program representative is looking for first-time offenders who have been arrested for low-level offenses. You may be eligible for this program this is your first arrest, first alleged crime, you have no criminal history, there are no prior encounters with law enforcement, for example, and it’s a type of offense that qualifies. If you complete certain classes, certain counseling hours, or community service, the proof of your efforts is provided to the officer who is supervising your pre-filing diversion. Once you complete all the terms and conditions, the supervising officer notifies the DA, and the DA does not file charges against you.

To be eligible, they are looking for low-level offenses such as petty theft, they are looking to see if there is rehabilitation. If you have already done classes and community service and you provide proof of that to the DA, the DA may be more inclined to refer your case to pre-filing diversion. Alternatively, the DA can decide to file charges against you and issue a complaint and send it to court. If this happens, you will have to go to court and process through the criminal justice system.

So let’s say two people make the same mistake and they both get arrested. One of them is charged formally with a crime and the other is afforded an opportunity at pre-filing diversion. These individuals (it could be the same crime), are on two different tracks, and face different consequences. Because of what’s happened in their case. One person got pre-filing diversion, the other did not. And one person now must go to court and face the criminal proceedings. The person who is granted pre-filing diversion, benefits from not being required to go to court. They do not have to stand in front of the judge. They don’t have to face a criminal complaint. They just complete the requirements, and their record reflects that they were granted pre-filing diversion. Their record does not reflect that criminal charges were filed against them. Compare this to the individual in the post-filing scenario who is facing criminal charges and who may have a completely different outcome in their case. The person against whom formal charges were filed could end up being convicted of the charges. They could end up pleading to reduced charges. The charge could potentially be dismissed against them in the future for various reasons. But the person who was granted pre-filing diversion does not even get to face these consequences or uncertainty of a filed case because there is no case filed against.

Filed charges have immigration consequences for many people in our community. And we all know that immigration laws are changing very rapidly, and the enforcement of immigration is changing rapidly nowadays. And pre-filing diversion and filed charges could have a meaningful impact on the individual’s immigration status.

What Prosecutors Consider When Reviewing Diversion Requests

As a former prosecutor, I reviewed requests for pre-filing diversion, and the first thing that I looked at was whether the charge was eligible and whether there was violence or injury involved. I was looking to see if there was recurring conduct and a rap sheet that reflected prior arrests or prior convictions. To me, that was an indicator of lack of eligibility for this pre-filing diversion program because it is discretionary. Violent offenses and assaults involving injuries, higher-level offenses, felony-level offenses, those are excludable from the pre-filing diversion program generally.

And the biggest mistake people make when they have been arrested for a crime is to wait and see what happens to their case. They miss the important and urgent window of opportunity where they can, if they engage with the right lawyer, potentially benefit from this pre-filing diversion. Sometimes the DA automatically refers the case to pre-filing diversion, but in many cases they do not. They end up making a filing decision, they file charges, and now you must go to court and fight that case in court or come up with a defense to those charges in court. Compare this with pre-filing diversion. One big benefit is that you do not even have to go to court and you avoid formal charges. It’s important to not make the mistake of just sitting back and waiting to see what happens in your case and to your case. It is critical to engage with the right lawyer and talk about your options and how you might be eligible for this pre-filing diversion program.

How Knight Law Helps Clients Seek Pre-Filing Diversion

At Knight Law, we don’t just defend clients. We step in early, we do active and preemptive investigation, and we build a strategic defense that considers our clients’ priorities for their lives, their careers, and their families. We provide a holistic approach and a “wraparound service” to our clients that caters to their needs, including consultations with immigration attorneys and mental health professionals, and maximizes the best possible outcome in their criminal case.