2007 California Rules of Court
Rule 4.104. Procedures and eligibility criteria for attending traffic violator school
The purpose of this rule is to establish uniform statewide procedures and criteria for
eligibility to attend traffic violator school.
(Subd (a) amended effective January 1, 2003; previously amended effective July 1,
(b) Authority of a court clerk to grant pretrial diversion
(1) Eligible offenses
Except as provided in (2), a court clerk is authorized to grant a request to attend traffic
violator school when a defendant with a valid driver's license requests to attend an 8-hour
traffic violator school as pretrial diversion under Vehicle Code sections 41501(a) and
42005 for any infraction under divisions 11 and 12 (rules of the road and equipment
violations) of the Vehicle Code if the violation is reportable to the Department of Motor
(2) Ineligible offenses
A court clerk is not authorized to grant a request to attend traffic violator school for a
misdemeanor or any of the following infractions:
(A) A violation that carries a negligent operator point count of more than one point under
Vehicle Code section 12810 or one and one-half points or more under Vehicle Code
(B) A violation that occurs within 18 months after the date of a previous violation and
the defendant either attended or elected to attend a traffic violator school for the previous
violation (Veh. Code, § 1808.7);
(C) A violation of Vehicle Code section 22406.5 (tank vehicles);
(D) A violation related to alcohol use or possession or drug use or possession;
(E) A violation on which the defendant failed to appear under Vehicle Code section
40508(a) unless the failure-to-appear charge has been adjudicated and any fine imposed
has been paid;
(F) A violation on which the defendant has failed to appear under Penal Code section
1214.1 unless the civil monetary assessment has been paid;
(G) A speeding violation in which the speed alleged is more than 25 miles over a speed
limit as stated in Chapter 7 (commencing with section 22348) of Division 11 of the
(H) A violation that occurs in a commercial vehicle as defined in Vehicle Code section
(I) A violation by a defendant having a class A, class B, or commercial class C driver's
(Subd (b) amended effective January 1, 2007; previously amended effective January 1,
2003, September 20, 2005, and January 1, 2007.)
(c) Judicial discretion
(1) A judicial officer may in his or her discretion order attendance at a traffic violator
school in an individual case for diversion under Vehicle Code section 41501(a) or
42005(b); sentencing under Vehicle Code section 42005(a); or any other purpose
permitted by law. A violation by a defendant having a class A, class B, or commercial
class C driver's license or that occurs in a commercial vehicle, as defined in Vehicle Code
section 15210(b), is not eligible for diversion under Vehicle Code sections 41501 or
(2) If a violation occurs within 18 months of a previous violation that was dismissed
under Vehicle Code section 41501(a), a judicial officer may order a continuance and
dismissal in consideration for completion of a program at a licensed school for traffic
violators as specified in Vehicle Code section 41501(a). The program must consist of at
least 12 hours of instruction as specified in section 41501(a). Under Vehicle Code section
1808.7, a dismissal for completion of the 12-hour program under this subdivision is not
(3) A defendant who is otherwise eligible for traffic violator school is not made
ineligible by entering a plea other than guilty or by exercising his or her right to trial. A
traffic violator school request must be considered based on the individual circumstances
of the specific case. The court is not required to state on the record a reason for granting
or denying a traffic violator school request.
(Subd (c) amended effective January 1, 2007; amended and relettered as part of subd (b)
effective January 1, 2003; previously amended effective January 1, 1998, September 20,
2005, and January 1, 2007.)
Rule 4.104 amended effective January 1, 2007; adopted as rule 851 effective January 1,
1997; previously amended effective January 1, 1998, July 1, 2001, January 1, 2003, and
September 20, 2005; previously amended and renumbered effective January 1, 2007.
Advisory Committee Comment
Subdivision (c)(3). Rule 4.104(c)(3) reflects court rulings in cases where defendants
wished to plead not guilty and have the court order attendance of traffic violator school if
found guilty after trial. A court has discretion to grant or not grant traffic violator school.
(People v. Schindler (1993) 20 Cal.App.4th 431, 433; People v. Levinson (1984) 155
Cal.App.3d Supp. 13, 21.) However, the court may not arbitrarily refuse to consider a
request for traffic violator school because a defendant pleads not guilty. (Schindler,
supra, at p. 433; People v. Wozniak (1987) 197 Cal.App.3d Supp. 43, 44; People v.
Enochs (1976) 62 Cal.App.3d Supp. 42, 44.) If a judicial officer believes that a
defendant's circumstances indicate that a defendant would benefit from attending school,
such attendance should be authorized and should not be affected by the order in which
the plea, explanation, and request for traffic violator school are presented. (Enochs, supra,
at p. 44.) A court is not required to state its reasons for granting or denying traffic
violator school following a defendant's conviction for a traffic violation. (Schindler,
supra, at p. 433.)
2008 California Rules of Court
Rule 4.110. Time limits for criminal proceedings on information or indictment
Time limits for criminal proceedings on information or indictment are as follows:
(1) The information must be filed within 15 days after a person has been held to answer
for a public offense;
(2) The arraignment of a defendant must be held on the date the information is filed or as
soon thereafter as the court directs; and
(3) A plea or notice of intent to demur on behalf of a party represented by counsel at the
arraignment must be entered or made no later than seven days after the initial
arraignment, unless the court lengthens time for good cause.
Rule 4.110 amended effective January 1, 2007; adopted as rule 227.3 effective January 1, 1985;
previously amended effective June 6, 1990; previously renumbered and amended effective
January 1, 2001.
Chapter 22.--CRIMINAL PROCEDURE
KANSAS CODE OF CRIMINAL PROCEDURE
Article 29.--PROCEDURE AFTER ARREST
22-2906. Definitions. As used in K.S.A. 22-2907 to 22-2911, inclusive:
(1) "District attorney" means district attorney or county attorney.
(2) "Complaint" means complaint, indictment or information.
(3) "Diversion" means referral of a defendant in a criminal case to a supervised
performance program prior to adjudication.
(4) "Diversion agreement" means the specification of formal terms and
conditions which a defendant must fulfill in order to have the charges against him or
History: L. 1978, ch. 131, § 1; July 1.
22-2907. Diversion agreements authorized; policies and guidelines by district
attorney; background information; right to counsel. (1) After a complaint has been
filed charging a defendant with commission of a crime and prior to conviction thereof,
and after the district attorney has considered the factors listed in K.S.A. 22-2908, if it
appears to the district attorney that diversion of the defendant would be in the interests
of justice and of benefit to the defendant and the community, the district attorney may
propose a diversion agreement to the defendant. The terms of each diversion
agreement shall be established by the district attorney in accordance with K.S.A. 22-
(2) Each district attorney shall adopt written policies and guidelines for the
implementation of a diversion program in accordance with this act. Such policies and
guidelines shall provide for a diversion conference and other procedures in those cases
where the district attorney elects to offer diversion in lieu of further criminal
proceedings on the complaint.
(3) Each defendant shall be informed in writing of the diversion program and the
policies and guidelines adopted by the district attorney. The district attorney 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. In all cases, the
defendant shall be present and shall have the right to be represented by counsel at the
diversion conference with the district attorney.
History: L. 1978, ch. 131, § 2; July 1.
22-2908. Grant of diversion; factors to consider; when prohibited. (a) In
determining whether diversion of a defendant is in the interests of justice and of
benefit to the defendant and the community, the county or district attorney 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, according to the certification of the Kansas bureau of
investigation or the division of vehicles of the department of revenue;
(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
(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 for restitution; and
(10) any mitigating circumstances.
(b) A county or district attorney shall not enter into a diversion agreement in lieu
of further criminal proceedings on a complaint if:
(1) The complaint alleges a violation of K.S.A. 8-1567 and amendments thereto
and the defendant: (A) Has previously participated in diversion upon a complaint
alleging a violation of that statute or an ordinance of a city in this state which prohibits
the acts prohibited by that statute; (B) has previously been convicted of or pleaded
nolo contendere to a violation of that statute or a violation of a law of another state or
of a political subdivision of this or any other state, which law prohibits the acts
prohibited by that statute; or (C) during the time of the alleged violation was involved
in a motor vehicle accident or collision resulting in personal injury or death; or
(2) the complaint alleges that the defendant committed a class A or B felony or
for crimes committed on or after July 1, 1993, an off-grid crime, a severity level 1, 2
or 3 felony for nondrug crimes or drug severity level 1 or 2 felony for drug crimes.
(c) A county or district attorney may enter into a diversion agreement in lieu of
further criminal proceedings on a complaint for violations of article 10 of chapter 32
of the Kansas Statutes Annotated, and amendments thereto, if such diversion carries
the same penalties as the conviction for the corresponding violations. If the defendant
has previously participated in one or more diversions for violations of article 10 of
chapter 32 of the Kansas Statutes Annotated, and amendments thereto, then each
subsequent diversion shall carry the same penalties as the conviction for the
History: L. 1978, ch. 131, § 3; L. 1981, ch. 153, § 1; L. 1982, ch. 144, § 6; L.
1984, ch. 119, § 11; L. 1985, ch. 48, § 16; L. 1986, ch. 185, § 2; L. 1992, ch. 239, §
257; L. 1993, ch. 291, § 190; L. 2005, ch. 182, § 8; July 1.
22-2909. Diversion agreements; provisions; waiver of certain rights;
stipulation of facts; stay of criminal proceedings; filing of agreements; alcohol
and drug-related offenses, evaluation required, when. (a) A diversion agreement
shall provide that if the defendant fulfills the obligations of the program described
therein, as determined by the attorney general or county or district attorney, such
attorney 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 Kansas or of the United States to a speedy
arraignment, preliminary examinations and hearings, and a speedy trial, and in the
case of diversion under subsection (c) waiver of the rights to counsel and trial by jury.
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. If a county creates a local
fund under the property crime restitution and compensation act, a county or district
attorney may require in all diversion agreements as a condition of diversion the
payment of a diversion fee in an amount not to exceed $100. Such fees shall be
deposited into the local fund and disbursed pursuant to recommendations of the local
board under the property crime restitution and victims compensation act.
(b) The diversion agreement shall state: (1) The defendant's full name; (2) the
defendant's full name at the time the complaint was filed, if different from the
defendant's current name; (3) the defendant's sex, race and date of birth; (4) the crime
with which the defendant is charged; (5) the date the complaint was filed; and (6) the
district court with which the agreement is filed.
(c) If a diversion agreement is entered into in lieu of further criminal proceedings
on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto, the
diversion agreement shall include a stipulation, agreed to by the defendant, the
defendant's attorney if the defendant is represented by an attorney and the attorney
general or county or district attorney, of the facts upon which the charge is based and a
provision that if the defendant fails to fulfill the terms of the specific diversion
agreement and the criminal proceedings on the complaint are resumed, the
proceedings, including any proceedings on appeal, shall be conducted on the record of
the stipulation of facts relating to the complaint. In addition, the agreement shall
include a requirement that the defendant:
(1) Pay a fine specified by the agreement in an amount equal to an amount
authorized by K.S.A. 8-1567, and amendments thereto, for a first offense or, in lieu of
payment of the fine, perform community service specified by the agreement, in
accordance with K.S.A. 8-1567, and amendments thereto; and
(2) enroll in and successfully complete an alcohol and drug safety action program
or a treatment program, or both, as provided in K.S.A. 8-1008, and amendments
thereto, and specified by the agreement, and pay the assessment required by K.S.A. 8-
1008, and amendments thereto.
If a diversion agreement is entered into in lieu of further criminal proceedings on a
complaint alleging a violation other than K.S.A. 8-1567 and amendments thereto, the
diversion agreement may include a stipulation, agreed to by the defendant, the
defendant's attorney if the defendant is represented by an attorney and the attorney
general or county or district attorney, of the facts upon which the charge is based and a
provision that if the defendant fails to fulfill the terms of the specific diversion agreement
and the criminal proceedings on the complaint are resumed, the proceedings, including
(d) proceedings on appeal, shall be conducted on the record of the stipulation of
facts relating to the complaint.
(e) If the person entering into a diversion agreement is a nonresident, the attorney
general or county or district attorney shall transmit a copy of the diversion agreement
to the division. The division shall forward a copy of the diversion agreement to the
motor vehicle administrator of the person's state of residence.
(f) If the attorney general or county or district attorney elects to offer diversion in
lieu of further criminal proceedings on the complaint and the defendant agrees to all of
the terms of the proposed agreement, the diversion agreement shall be filed with the
district court and the district court shall stay further proceedings on the complaint. If
the defendant declines to accept diversion, the district court shall resume the criminal
proceedings on the complaint.
(g) Except as provided in subsection (h), if a diversion agreement is entered into
in lieu of further criminal proceedings alleging commission of a misdemeanor by the
defendant, while under 21 years of age, under the uniform controlled substances act
(K.S.A. 65-4101 et seq., and amendments thereto) or K.S.A. 41-719, 41-727, 41-804,
41-2719, 41-2720, 65-4152, 65-4153, 65-4154 or 65-4155, and amendments thereto,
the agreement shall require the defendant to submit to and complete an alcohol and
drug evaluation by a community-based alcohol and drug safety action program
certified pursuant to K.S.A. 8-1008, and amendments thereto, and to pay a fee not to
exceed the fee established by that statute for such evaluation. If the attorney general or
county or district attorney finds that the defendant is indigent, the fee may be waived.
(h) If the defendant is 18 or more years of age but less than 21 years of age and
allegedly committed a violation of K.S.A. 41-727, and amendments thereto, involving
cereal malt beverage, the provisions of subsection (g) are permissive and not
(i) Except diversion agreements reported under subsection (j), the attorney
general or county or district attorney shall forward to the Kansas bureau of
investigation a copy of the diversion agreement at the time such agreement is filed
with the district court. The copy of the agreement shall be made available upon
request to the attorney general or any county, district or city attorney or court.
(j) At the time of filing the diversion agreement with the district court, the
attorney general or county or district attorney shall forward to the division of vehicles
of the state department of revenue a copy of any diversion agreement entered into in
lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-
1567, and amendments thereto. The copy of the agreement shall be made available
upon request to the attorney general or any county, district or city attorney or court.
History: L. 1978, ch. 131, § 4; L. 1982, ch. 145, § 1; L. 1982, ch. 144, § 7; L.
1985, ch. 48, § 17; L. 1986, ch. 131, § 2; L. 1988, ch. 48, § 5; L. 1988, ch. 47, § 21; L.
1989, ch. 38, § 47; L. 1990, ch. 321, § 15; L. 1993, ch. 181, § 1; July 1.
History: L. 1978, ch. 131, § 4; L. 1982, ch. 145, § 1; L. 1982, ch. 144, § 7; L.
1985, ch. 79, § 4; Repealed, L. 1986, ch. 131, § 3; July 1.
History: L. 1978, ch. 131, § 4; L. 1982, ch. 145, § 1; L. 1982, ch. 144, § 7; L.
1985, ch. 48, § 17; L. 1986, ch. 131, § 2; L. 1988, ch. 48, § 5; L. 1988, ch. 47, § 21; L.
1989, ch. 95, § 6; Repealed, L. 1990, ch. 108, § 2; July 1.
22-2910. 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. Except for sentencing proceedings and as otherwise
provided in subsection (c) of K.S.A. 22-2909 and amendments thereto and as
otherwise provided in K.S.A. 8-285 and 8-1567 and amendments to these sections, the
following shall not be admissible as evidence in criminal proceedings which are
resumed under K.S.A. 22-2911: (1) Participation in a diversion program; (2) the facts
of such participation; or (3) the diversion agreement entered into.
History: L. 1978, ch. 131, § 5; L. 1982, ch. 144, § 8; July 1.
22-2911. Failure to fulfill diversion agreement; satisfactory fulfillment;
records. (a) If the county or district attorney finds at the termination of the diversion
period or any time prior to the termination of the diversion period that the defendant
has failed to fulfill the terms of the specific diversion agreement, the county or district
attorney shall inform the district court of such finding and the district 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
(b) If the defendant has fulfilled the terms of the diversion agreement, the district
court shall dismiss with prejudice the criminal charges filed against the defendant.
(c) The county or district attorney shall forward to the Kansas bureau of
investigation a record of the fact that a defendant did or did not fulfill the terms of a
diversion agreement required to be filed under K.S.A. 22-2909 and amendments
thereto. Such record shall be made available upon request to any county, district or
city attorney or court.
(d) The county or district attorney shall forward to the division of vehicles of the
state department of revenue a record of the fact that a defendant did or did not fulfill
the terms of a diversion agreement required to be filed under K.S.A. 22-2909 and
amendments thereto. Such record shall be made available to any city, county or
district attorney or court.
History: L. 1978, ch. 131, § 6; L. 1981, ch. 153, § 2; L. 1982, ch. 145, § 2; L.
1982, ch. 144, § 9; L. 1985, ch. 79, § 5; L. 1993, ch. 166, § 3; L. 1998, ch. 131, § 6;
22-2912. District court rules for diversion procedures; 22-2906 to 22-2911,
inapplicable; factors. The provisions of this act shall not be applicable in judicial
districts that adopt district court rules pursuant to K.S.A. 20-342 for the
administration of diversion procedures by the district court. In judicial districts
where the district court adopts such rules for diversion procedures, the court in
considering whether or not to allow diversion to a defendant shall consider, but is
not limited to, the factors enumerated in K.S.A. 22-2908.
History: L. 1978, ch. 131, § 7; July 1.
Kentucky Supreme Court Changes Rules
In the January 1999 Bench & Bar, the Kentucky Supreme Court announced changes to
their criminal and civil rules which were effective January 1, 1999.
1. RCr 7.24 Discovery & Inspection. While it may seem odd to many Kentucky
practitioners, the practice in many counties did not provide for discovery of police
reports. Section 2 of this rule makes a significant change. Previously, pretrial
discovery of police was not authorized by this rule. Now this rule authorizes that
pretrial discovery. The rule still does not authorize pretrial discovery of police
memoranda, which is likely to be the subject of future litigation as to the real
difference between a report and a memorandum.
This change has long been advocated by the Kentucky Association of Criminal
Defense Lawyers (KACDL) and the Department of Public Advocacy (DPA) and
finally is enacted as a result of a proposal last year by KACDL through its
President David R. Steele.
This pragmatic change will increase efficiency of the litigation, encourage reliable
advice to a client on the evaluation of the strength of the case and allow informed
decisionmaking by a defendant on whether to plead guilty or not. It is likely to
reduce delays during trials. Early disclosure allows for adequate time for the
defense to competently prepare for the case.
2. RCr 8.04 Pretrial Diversion. As a result of a KACDL proposal, there is now a
new rule providing for pretrial diversion that sets out a simple, straightforward
process for misdemeanors and felonies. It requires the agreement of the defendant
and prosecution and is subject to approval of the court. KACDL proposed this
rule to the Court.
Passage of this rule by the Kentucky Supreme Court follows upon the 1998
General Assembly's enactment of HB 455 that has provisions for a diversion
process that in some significant ways is more restrictive than the new RCr 8.04.
The new statute is limited to some Class D felonies where persons have not had a
felony in 10 years or been on probation or parole in the last 10 years.
The Supreme Court of Kentucky has been clear in holding that it, not the
Legislature, sets the procedures. RCr 8.04 is obviously seen as procedural by the
Kentucky Supreme Court otherwise it would not have promulgated it. This is
especially true in this situation since the court considered this Rule at the June,
1998 Bar Convention after the 1998 General Assembly passed its diversion law.
Litigators are going to have to pay attention to both of these provisions but since
the Kentucky Supreme Court has the last word on such matters, RCr 8.04 is likely
to be the provision used while the statutory provisions are likely unconstitutional.
3. RCr 9.57 Deadlock Jury Instruction. As a result of a change proposed by the
Court, this rule was strengthened by specifically saying that the instructions given
by trial judges to a deadlocked jury can contain only the elements outlined in the
rule and no other.This change is wise since it insures that judges cannot leave out
or add to this instruction in a way that prejudices one side or the other and is
consistent with the Kentucky Supreme Court's direction in Commonwealth v.
Mitchell, 943 S.W.2d 625, 627 (Ky. 1997) advising courts not to "tailor
individualized versions" and risk reversible error.
4. RCr 10.24 Motion for Judgment of Acquittal. This rule was amended to allow
for a motion for acquittal to be made not only after a guilty verdict but also after a
jury failed to return a verdict because they were hung.
It is wise to allow for this motion in the case where no verdict was returned to
permit judges the opportunity to make a decision on this matter when the
evidence does not support a verdict of guilty upon retrial. This change is
consistent with CR 50.02 and FRCP 29 ( c).
5. RCr 12.04 When and How Appeal is Taken. The court proposed this change to
increase the time for filing a notice of appeal in a criminal case from 10 days to
30 days as set in civil cases. It makes sense to have the same deadlines for filing
appeals for both civil and criminal cases to reduce confusion and mistakes.
1. CR 24.03 Procedure When Constitutionality Challenged. This rule was
amended to require "a copy of the pleading, motion or other paper first raising the
challenge" upon the Attorney General. Previously, it was only necessary to serve
the notice of the motion.
2. CR 72.10 Statement of Appeal from District Court. This rule sets new
requirements for the contents and service of the statement of appeal.
3. CR 75.01(1) Designation of Evidence. This rule change requires a designation of
untranscribed material even in proceedings that were taken exclusively by video.
The rule envisions a list of proceedings by date.
4. CR 75.02(1) and (3). Transcript of Evidence and Proceedings and CR
75.07(1) and (2) Record Prepared by Clerk and 75.13(1) Narrative
Statement. Proceedings that were not videotaped are added to this rule's provisions.
5. CR 76.12(4)( c)(vi) Form and Content. The Appendix to a brief must now have
an index page followed by the judgment.
6. CR 76.16(2) Appellate Oral Arguments. Visual aids are now specifically
authorized to be used at oral argument with leave of court.
7. CR 76.20(2)(b) Motion for Discretionary Review. The time for filing is
changed from 20 to 30 days.
8. CR 76.30(2) Effective Date of Opinion. Changes the date of finality of Court of
Appeals opinion from 21 days to 31 days. Finality for Supreme Court opinions
remains 21 days.
9. CR 79.06(3) Docketing of Appeals. Now only allows docketing when the
appellate clerk receives copies of the notice of appeal, judgment and receipt of the
filing fee from the circuit clerk.
10. CR 98(2) Videotape Records. The change makes this rule applicable to cases
with videotaped records in addition to the other appellate rules.
The changes in these rules demonstrate that the work of KACDL and DPA to promote
rules that are fairer and foster reliable decisionmaking is appreciated by the Kentucky
RULE 3:28. PRETRIAL INTERVENTION PROGRAMS
Rule 3:28. Pretrial Intervention Programs
(a) Each Assignment Judge shall designate a judge or judges to act on all matters
pertaining to pretrial intervention programs in the vicinage in accordance with N.J.S.A.
2C:43-12 and -13.
(b) Where a defendant charged with a penal or criminal offense has been accepted by the
program, the designated judge may, on the recommendation of the criminal division
manager and with the consent of the prosecutor and the defendant, postpone all further
proceedings against said defendant on such charges for a period not to exceed thirty-six
(c) At the conclusion of the period set forth in paragraph (b) or earlier upon motion of the
criminal division manager, the designated judge shall make one of the following
(1) On recommendation of the criminal division manager and with the consent of the
prosecutor and the defendant, dismiss the complaint, indictment or accusation against the
defendant, such a dismissal to be designated "matter adjusted-complaint (or indictment or
accusation) dismissed"; or
(2) On recommendation of the criminal division manager and with the consent of the
prosecutor and the defendant, further postpone all proceedings against such defendant on
such charges for an additional period of time as long as the aggregate of postponement
periods under the rule does not exceed thirty-six months; or
(3) On the written recommendation of the criminal division manager or the prosecutor or
on the court's own motion order the prosecution of the defendant to proceed in the
ordinary course. Where a recommendation for such an order is made by the criminal
division manager or the prosecutor, such person shall, before submitting such
recommendation to the designated judge, provide the defendant or defendant's attorney
with a copy of such recommendation, shall advise the defendant of the opportunity to be
heard thereon, and the designated judge shall afford the defendant such a hearing.
(4) During the conduct of hearings subsequent to an order returning the defendant to
prosecution in the ordinary course, no program records, investigative reports, reports
made for a court or prosecuting attorney, or statements made by the defendant to program
staff shall be admissible in evidence against such defendant.
(5) No statement or other disclosure regarding the charge or charges against the
participant made or disclosed by a participant in pretrial intervention to a person
designated to provide supervisory treatment shall be disclosed by such person at any
time, to the prosecutor, nor shall any such statement or disclosure be admitted as
evidence in any civil or criminal proceeding against the participant, provided that the
criminal division manager shall not be prevented from informing the prosecutor, or the
court, on request or otherwise, whether the participant is satisfactorily responding to
(d) Where proceedings have been postponed against a defendant for an additional period
as provided in paragraph (c)(2), at the conclusion of such period the designated judge
may not again postpone proceedings but shall make a disposition in accordance with
paragraph (c)(1) or (3). The aggregate of postponement periods under this rule shall in no
case exceed thirty-six months.
(e) The Administrative Director of the Courts shall establish and maintain a Pretrial
Intervention Registry for the purpose of determining applications, enrollments and the
degree of completion thereof by a defendant in a program approved by the Supreme
Court in accordance with paragraph (a). The Pretrial Intervention Registry shall contain
such information and material as directed by the Supreme Court. No order to expunge or
seal records of arrest after dismissal of a complaint, indictment or accusation under
paragraph (c) or (d) shall bar the retention of material and information in the Pretrial
Intervention Registry for the purposes of determining a defendant's prior applications to,
enrollments in and the degree of completion of a Pretrial Intervention Program or for
statistical reports required of the Administrative Director of the Courts, by law or the
(f) When the criminal division manager and prosecutor reject an application for
participation in the pretrial intervention program, there shall be no pretrial review by an
appellate court if the rejection is upheld by the designated judge or the Assignment
Judge. An order enrolling a defendant into the pretrial intervention program over the
prosecutor's objection shall be deemed final for purposes of appeal, as of right, and shall
be automatically stayed for fifteen days following its entry and thereafter pending
(g) Denial of acceptance pursuant to this rule may be reviewed on appeal from a
judgment of conviction notwithstanding that such judgment is entered following a plea of
(h) Application for pretrial intervention shall be made at the earliest possible opportunity,
including before indictment, but in any event no later than twenty-eight days after
indictment. The criminal division manager shall complete the evaluation and make a
recommendation within twenty-five days of the filing of the application. The prosecutor
shall complete a review of the application and inform the court and defendant within
fourteen days of the receipt of the criminal division manager's recommendation.
An appeal by the defendant shall be made on motion to the Presiding Judge of the
Criminal Division or to the judge to whom the case has been assigned within ten days
after the rejection and shall be made returnable at the next status conference or at such
time as the judge determines will promote an expeditious disposition of the case.
Where application is made pre-indictment, the prosecutor may withhold action on the
application until the matter has been presented to the grand jury.
Note: Adopted October 7, 1970, effective immediately. Paragraphs (a)(b)(c)(d) amended
June 29, 1973, to be effective September 10, 1973; caption and paragraphs (a)(b)(c)(d)
amended April 1, 1974 effective immediately; paragraph (e) adopted January 10, 1979 to
be effective January 15, 1979; paragraphs (a)(b)(c)(d) amended August 28, 1979 to be
effective September 1, 1979; paragraphs (f) and (g) adopted October 25, 1982 to be
effective December 1, 1982; paragraphs (a) (b) (c) (d) and (f) amended and paragraph (h)
added July 13, 1994, to be effective January 1, 1995; paragraph (f) amended June 28,
1996 to be effective September 1, 1996; paragraph (f) amended July 12, 2002 to be
effective September 3, 2002; paragraph (c)(4) amended June 15, 2007 to be effective
September 1, 2007.
GUIDELINES FOR OPERATION OF PRETRIAL INTERVENTION IN NEW JERSEY
As Amended Effective September 1, 1996.
SUPREME COURT OF NEW JERSEY
ORDERED that the attached revised guidelines governing pretrial intervention programs
are approved for implementation as applicable in counties where such programs have
been authorized by the Supreme Court pursuant to R. 3:28; and
FURTHER ORDERED that the guidelines approved by the order of January 10, 1979
For the Court,
Robert N. Wilentz
Dated: July 13, 1994
The purposes of pretrial intervention are:
(a) To provide defendants with opportunities to avoid ordinary prosecution by receiving
early rehabilitative services, when such services can reasonably be expected to deter
future criminal behavior by the defendant, and when there is an apparent causal
connection between the offense charged and the rehabilitative need, without which cause
both the alleged offense and the need to prosecute might not have occurred.
(b) To provide an alternative to prosecution for defendants who might be harmed by the
imposition of criminal sanctions as presently administered, when such an alternative can
be expected to serve as sufficient sanction to deter criminal conduct.
(c) To provide a mechanism for permitting the least burdensome form of prosecution
possible for defendants charged with "victimless" offenses.
(d) To assist in the relief of presently overburdened criminal calendars in order to focus
expenditure of criminal justice resources on matters involving serious criminality and
severe correctional problems.
(e) To deter future criminal or disorderly behavior by a defendant/participant in pretrial
Guideline 1(a) states a rehabilitative model on which PTI programs in New Jersey are
based. The rehabilitative model emphasizes that social, cultural and economic conditions
often result in a defendant's choice of environmental compulsion to commit crime. PTI
seeks to solve personal problems which tend to result from the conditions that appear to
Guideline 1(b) recognizes that diversion in appropriate circumstances can serve as
sufficient sanction to deter future criminal conduct.
Guideline 1(c) provides for the use of PTI as a mechanism for minimizing penetration
into the criminal process for broad categories of offenders accused of "victimless crimes,"
without relinquishing criminal justice control over such persons while statutes
proscriptive of such behavior remain in force.
Guideline 1(d) provides for removing from ordinary prosecution those who can be
deterred from criminal behavior by short term rehabilitative work or supervision. It is to
be emphasized that the potential for rehabilitation must be considered in light of the time
periods embodied in Rule 3:28(b), (c), (d).
The deterrence of criminal behavior in many cases requires intensive work: counseling,
psychotherapy, drug-abuse prevention and control, employment placement. Programs in
these cases should be measured against available treatment facilities and the time
constraints of PTI. For other defendants, however, no more than a supervised pretrial
probationary period may be necessary when no extensive need for rehabilitative services
can be discerned.
Guideline 1(e) acknowledges that pre-conviction rehabilitation can be in the public
interest when it results in the deterrence of future misconduct.
Eligibility for PTI is broad enough to include all defendants who demonstrate sufficient
effort to effect necessary behavioral change and show that future criminal behavior will
not occur. Any defendant accused of crime shall be eligible for admission into a PTI
program. When the application indicates factors which would ordinarily lead to exclusion
under the guidelines established hereinafter, the applicant nevertheless shall have the
opportunity to present to the criminal division manager, and through the criminal division
manager to the prosecutor, any facts or materials demonstrating the defendant's
amenability to the rehabilitative process, showing compelling reasons justifying the
defendant's admission, and establishing that a decision against enrollment would be
arbitrary and unreasonable.
Guideline 2 provides that each applicant for a PTI program is entitled to full and fair
consideration of his or her application. When the application indicates factors that cause
either the criminal division manager to reject the application or the prosecutor to deny
consent to an enrollment, a statement particularizing the reasons for the rejection or the
withholding of consent by the prosecutor must be furnished to the defendant. If the
defendant wishes to challenge a rejection by the criminal division manager, or the
prosecutor's denial of consent to enrollment, the defendant may do so in accordance with
the procedures set forth in guidelines 6 and 8. It is the duty of the applicant to allege and
present any facts and materials to the criminal division manager for reconsideration either
by the criminal division manager or prosecutor, if the prosecutor has denied consent,
showing compelling reasons justifying admission, and establishing that a decision against
enrollment would be arbitrary and unreasonable. The presentation of this material should
be done concurrently with the filing of a motion under guideline 8 for review of a
decision by a criminal division manager not to recommend or of a prosecutor not to
consent to enrollment.
In evaluating a defendant's application for participation in a pretrial intervention program,
consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12(e). In addition
thereto, the following factors shall also be considered together with other relevant
(a) Age. Pretrial intervention is designed to deal only with adult defendants who, in
accordance with New Jersey law, are those persons above the age of 18. Also included
are those juveniles between the ages of 16 and 18 who are treated as adults under R. 5:9-
(b) Residence. New Jersey's PTI program is designed to deal with the problem of crime
in New Jersey. Only those defendants are ineligible who reside such distances from New
Jersey as to bar effective counseling or supervisory procedures.
(c) Jurisdiction. Only defendants charged with criminal or penal offenses in the criminal
or municipal courts of the State of New Jersey may be enrolled pursuant to R. 3:28.
(d) Minor Violations. Defendants should not be eligible for enrollment if the likely
disposition would result in a suspended sentence without probation or a fine. Those
charged with ordinance, health code and other similar violations are not eligible.
(e) Prior Record of Convictions. While the pretrial intervention program is not limited to
"first offenders", defendants who have been previously convicted of a criminal offense
should ordinarily be excluded. Such defendants who have at any prior time been
convicted of a first orsecond degree crime or who irrespective of the degree of the crime
have completed a term of probation, incarceration or parole within five years prior to the
date of application for diversion shall ordinarily not be considered for enrollment in PTI
except on joint application by the defendant and the prosecutor. Defendants charged with
more than one offense may be considered for enrollment.
(f) Parolees and Probationers. Defendants who, at the time of arrest, are probationers or
parolees should be considered for enrollment under R. 3:28 only after consultation with
the Chief Probation Officer or District Parole Supervisor whose departments supervise
the defendants, and only after they have agreed that revocation of probation or parole
need not be recommended or after the appropriate authority has made the decision not to
revoke probation or parole.
(g) Defendants Previously Diverted. Supervisory treatment may occur only once with
respect to any defendant who has previously been enrolled in a program of pretrial
intervention or conditionally discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A.
2C:36A-1. All applications for enrollment in a PTI program must proceed in accordance
with the rules of the Supreme Court and these guidelines after reference to the Pretrial
Intervention Registry established pursuant to R. 3:28(e) and N.J.S.A. 2C:43-21(a). No
order to expunge or seal records of arrest after dismissal of a complaint, indictment or
accusation under paragraph (c) or (d) shall bar the retention of material and information
in the Pretrial Intervention Registry for the purposes of determining a defendant's prior
applications to, enrollments in, and the degree of completion of a Pretrial Intervention
Program or for statistical reports required of the Administrative Director of the Courts, by
law or the Supreme Court.
(h) Eligibility Under N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. The statutes set forth the
criteria for eligibility and guidelines for exclusion. Defendants eligible for pretrial
intervention or conditional discharge pursuant to N.J.S.A. 2C:36A-1 or § 27 of the
Controlled Dangerous Substances Act may be placed under the supervision of a pretrial
(i) Assessment of the Nature of the Offense. Any defendant charged with crime is eligible
for enrollment in a PTI program, but the nature of the offense is a factor to be considered
in reviewing the application. If the crime was (1) part of organized criminal activity; or
(2) part of a continuing criminal business or enterprise; or (3) deliberately committed
with violence or threat of violence against another person; or (4) a breach of the public
trust where admission to a PTI program would deprecate the seriousness of defendant's
crime, the defendant's application should generally be rejected. A defendant charged with
a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as
defined in L.1970, c. 226 (N.J.S.A. 24:21-1 et seq.) by persons not drug dependent,
should ordinarily not be considered for enrollment in a PTI program except on joint
application by the defendant and the prosecutor. However, in such cases, the applicant
shall have the opportunity to present to the criminal division manager, and through the
criminal division manager to the prosecutor, any facts or materials demonstrating the
applicant's amenability to the rehabilitative process, showing compelling reasons
justifying the applicant's admission and establishing that a decision against enrollment
would be arbitrary and unreasonable.
(j) Co-defendants. The impact of diversion on the prosecution of co-defendants is a factor
to be considered.
(k) Restitution and Community Service. A restitution or community service requirement,
or both, may be included as part of an individual's service plan when such a requirement
promises to aid the rehabilitation of the offender. Any such requirement and its terms
shall bejudicially determined at the time of enrollment following recommendation by the
criminal division manager and consent by the Prosecutor. Evidence of the restitution
condition is not admissible against defendant in any subsequent civil or criminal
proceeding. Admission to the program shall not be denied solely on the basis of
anticipated inability to meet a restitution requirement. Where appropriate to further
rehabilitation, symbolic or partial restitution may be included in the service.
Guideline 3, in its introductory statement, requires that the statutory criteria of N.J.S.A.
2C:43-12(e) be considered in the evaluation of a defendant's application for pretrial
intervention. That statutory provision requires consideration of those criteria "among
others." Accordingly, the original criteria of this guideline have also been retained as
explanatory of and supplemental to the statutory criteria. For convenience in reference,
the statutory criteria are as follows:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the
applicant's crime and for which services are unavailable within the criminal justice
system, or which may be provided more effectively through supervisory treatment and
the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that
would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of
(9) The applicant's record of criminal and penal violations and the extent to which he may
present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the
criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem
that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment
would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in the crime charged or
in other crime is such that the interest of the State would be best served by processing his
case through traditional criminal justice system procedures;
(16) Whether or not applicant's participation in pretrial intervention will adversely affect
the prosecution of co-defendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would
outweigh the benefits to society from channeling an offender into a supervisory treatment
Guideline 3(a) indicates that the services of PTI programs may, in appropriate instances
and at the request of juvenile authorities and programs, be made available to juvenile
defendants when the need for inter-program cooperative work is indicated.
Under Guideline 3(b), residents of other States, charged with offenses in New Jersey
counties in which there exist pretrial intervention programs may, with the approval of the
prosecuting attorney, the designated judge, and Administrative Office of the Courts, be
permitted to participate in such out-of-state program while enrolled pursuant to R. 3:28.
Regardless of the New Jersey jurisdiction in which the complaint, indictment or
accusation has been filed, defendants or participants may, with the agreement of the PTI
coordinators involved, be transferred for participation among the various county or
Guideline 3(c) establishes jurisdictional requirements. However, defendants charged in
other States or in the Federal Courts, may in appropriate instances and with the
permission of the Administrative Office of the Court, be permitted to participate in the
counseling or supervision regimes of the county or vicinage PTI programs on request of
the Federal Authorities or a PTI program in another State.
Guideline 3(d) sets forth the policy that those charged with minor violations should not
be admitted to a PTI program. It is felt that while no per se exclusion of non-indictable
offenses is appropriate, the PTI process is not appropriate for such cases which do not
involve a potential sentence of consequence. Rodriguez v. Rosenblatt, 58 N.J. 281, 277
A.2d 216 (1971).1
Guideline 3(e) makes it clear that a prior criminal record may be indicative of a
behavioral pattern not conducive to short term rehabilitation. Therefore, pretrial
intervention should ordinarily be limited to persons who have not previously been
convicted of a crime and hence a rebuttable presumption against enrollment is created by
the fact of a prior conviction. An even heavier onus is placed upon defendants whose
prior conviction is of a first or second degree crime or who have completed a term of
imprisonment, probation or parole within the five-year period immediately preceding the
application for diversion. As to those defendants, admission to the program is ordinarily
dependent upon the prosecutor joining in the PTI application.
Guideline 3(f) sets forth a policy permitting probationers and parolees to enter PTI
programs. Since the parolee/probationer is under the supervision of the District Parole
Supervisor or Chief Probation Officer, consultation should be sought prior to
recommending enrollment of the defendant into a PTI program.
Guideline 3(g) creates a bar against admission into a PTI program for those defendants
who have previously been diverted under N.J.S.A. 2C:43-12 et seq. or conditionally
discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. The Pretrial Intervention
Registry established pursuant to N.J.S.A. 2C:43-21(a) and R. 3:28 serves as the means of
identifying defendants previously diverted through a PTI program. This registry is
designed to complement the Controlled Dangerous Substance Registry Act of 1970,
pursuant to N.J.S.A. 26:2G-17 et seq.
Guideline 3(h) deems it appropriate that PTI programs may assume the supervision of
N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1 cases.
Guideline 3(i) recognizes that consistent with State v. Leonardis, 71 N.J. 85, 363
A.2d321 (1976) and 73 N.J. 360, 375 A.2d 607 (1977), there must be a balance struck
between a defendant's amenability to correction, responsiveness to rehabilitation and the
nature of the offense. It is to be emphasized that while all persons are eligible for pretrial
intervention programs, those charged with offenses encompassed within certain
enumerated categories must bear the burden of presenting compelling facts and materials
justifying admission. First and second degree crimes (and their Title 2A cognates) and the
sale or dispensing of Schedule I and II narcotics by persons not drug dependent are
specific categories of offenses that establish a rebuttable presumption against admission
of defendants into a PTI program. This presumption reflects the public policy of PTI. PTI
programs should ordinarily reject applications by defendants who fall within these
categories unless the prosecutor has affirmatively joined in the application. A heavy
burden rests with the defendant to present to the criminal division manager at the time of
application (a) proof that the prosecutor has joined in the application and (b) any material
that would otherwise rebut the presumption against enrollment. When a defendant
charged with a first or second degree crime or the sale or dispensing of Schedule I or II
narcotics has been rejected because the prosecutor refuses to consent to the filing of the
application, or because in the sound discretion of the criminal division manager the
defendant has not rebutted the presumption against admission, the burden lies with the
defendant upon appeal to the court to show that the prosecutor or criminal division
manager abused such discretion. When an application is rejected because the defendant is
charged with a crime of the first or second degree or sale or dispensing of Schedule I or II
narcotics, and the prosecutor refuses to join affirmatively in the filing of an application or
later refuses to conent to enrollment, such refusal should create a rebuttable presumption
Guideline 3(k) recognizes that the use of restitution and community service may play an
integral role in rehabilitation. Requiring either is strongly consonant with the individual
approach defined in State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976) and 73 N.J. 360,
375 A.2d 607 (1977), which emphasized the needs of the offender. In determining the
restitution requirement and its terms including ability of the offender to pay, the Court
should rely on the procedures outlined in State in Interest of DGW, 70 N.J. 488, 361 A.2d
513 (1976) and State v. Harris, 70 N.J. 586 (1976).
Full restitution need not be completed during participation in the program. In determining
whether a restitution requirement has been fulfilled, the designated judge shall consider
good-faith efforts by the defendant. In appropriate cases, at the conclusion of
participation, a civil judgment by confession may be entered by the court. However,
restitution should never be used in PTI for the sole purpose of collecting monies for
Enrollment in PTI programs should be conditioned upon neither informal admission nor
entry of a plea of guilty. Enrollment of defendants who maintain their innocence should
be permitted unless the defendant's attitude would render pretrial intervention ineffective.
A PTI program is presented to defendants as an opportunity to earn a dismissal of charges
for social reasons and reasons of present and future behavior, legal guilt or innocence
notwithstanding. This stance produces a relation of trust between counselor and
defendant. Within the context of pretrial intervention when and whether guilt should be
admitted is adecision for counselors. Counselors should be free to handle each case
individually according to their best judgment.
Neither admission of guilt nor acknowledgment of responsibility is required. Steps to bar
participation solely on such grounds would be an unwarranted discrimination.
Nevertheless, many guilty defendants blame their behavior on society, family, friends or
circumstance, and avoid recognition of the extent of their own role and responsibility.
While such an attitude continues, it is unlikely that behavioral change can occur as a
result of short-term rehabilitative work. An understanding and acceptance of
responsibility for behavior achieved through counseling, can and often does, result in the
beginnings of the defendant's ability to control his/her acts and is an indication that
rehabilitation may, in large measure, have been achieved.
Effective operation of pretrial intervention programs requires that a relationship of
confidence and trust be initiated and maintained between participating defendants and
staff. No information, therefore, obtained as a result of a defendant's application to or
participation in a pretrial intervention program should be used, in any subsequent
proceeding, against his or her advantage.
That a relationship based on trust is necessary for the rehabilitation/attitude change
process to operate cannot seriously be doubted, and the policy reflected in the
admissibility and defendant protection provisions of R. 3:28 and R. 1:38 recognizes such
a need. The priority of the maintenance of the counselor-participant relation over the need
for disclosures resulting from this relationship is the same, of course, as the priority for
the maintenance of, for example, the confidentiality of lawyer-client,
physician/psychologist-patient communications. (Counselors should feel free to shroud
their association in an air of confidentiality. Use of information gathered in this process
would most likely be barred from future proceedings "as contrary to basic standards of
due process and fundamental fairness." See In the Interest of J.P.B., 143 N.J.Super. 96,
362 A.2d 1183 (App.Div.1976). Of course, defendants who give false information on PTI
applications may subject themselves to charges of perjury or false swearing in instances
where supporting affidavits may be required by the criminal division manager. Affidavits
relating to the facts and circumstances of the underlying offense shall not be required.)
The essential PTI format is to give participating defendants a true second chance to
accomplish rehabilitation or to show otherwise that criminal conduct is not likely to occur
in the future; and if the defendant fails in this effort, to return him or her to that stage of
ordinary prosecution at which proceedings had been stopped under R. 3:28, and to the
extent possible, enable prosecution to take place as if such defendants had not
participated in the PTI program so that defendants will not be prejudiced by an
unsuccessful attempt to earn a R. 3:28 dismissal.
Application for PTI should be made as soon as possible after commencement of
proceedings, but, where an indictable offense is charged, not later than 28 days after
indictment. All applications for PTI should be processed in the order of their filing.
However, where the application is filed after an indictment has been returned, the PTI
Program should complete itsevaluation and make its recommendation thereon within 25
days after filing. The prosecutor should complete a review and advise the defendant
within 14 days thereafter. An appeal by defendant to the trial court shall be brought
within 10 days after the rejection notice and should be determined either before or at the
To relieve defendants from the anxiety of facing prosecution, to apply appropriate
rehabilitative measures at an early date, and to effect savings in criminal justice
resources, PTI programs should endeavor to divert qualified defendants from the ordinary
course of prosecution as soon as possible after the filing of a complaint. The court must
advise defendant of the opportunity to be considered for PTI at the first appearance
before the court. See R. 3:4-2. While a PTI application should be made before indictment,
there are nevertheless problems involved in securing public defender counsel before
arraignment. Thus, while pre-indictment filing is encouraged, the application may be
made no later than 28 days after indictment, but not thereafter. This time requirement
should permit all defendants sufficient opportunity to make a voluntary and informed
choice concerning enrollment in a PTI program.
The time requirements set forth in the guidelines for evaluation, recommendation and
review are intended to enable complete processing of a defendant's application before the
pretrial conference. See R. 3:9-1e. Early filing as encouraged by this guideline, will
afford PTI programs and prosecutors the opportunity to manage their resources better by
providing them sufficient time to make informed evaluations. The time limits for
processing applications are designed to facilitate speedy trials and are realistic in view of
the limited scope of review following rejection.
Where application is made in an indictable offense, the prosecutor may withhold action
on the application until the matter has been presented to the grand jury.
Guideline 7 recognizes that at times it may be in the public interest to have a particular
defendant screened out of the criminal justice system, either by administrative decision or
grand jury action, rather than diverted into a PTI program. Thus, the prosecutor is given
the discretion to choose an appropriate route and the court will not be burdened by
hearing challenges if no indictment is to be returned. However, the option of delaying
action until the grand jury has voted on the case should be considered only in rare
instances. Generally, expeditious handling of PTI applications is in consonance with the
purpose of diversion. Of course, if the prosecutor consents to the application, enrollment
into a PTI program should not be delayed and the defendant should generally be enrolled
The decisions and reasons therefor made by the designated judges (or Assignment
Judges), prosecutors and criminal division managers in granting or denying defendants'
applications for PTI enrollment, in recommending and ordering termination from the
program or dismissal of charges, in all cases must be reduced to writing and disclosed to
A defendant may be accepted into a PTI program by the designated judge (or
theAssignment Judge) on recommendation of the criminal division manager, and with the
consent of the prosecuting attorney and the defendant. Applications that are
recommended for enrollment by the criminal division manager and consented to by the
prosecutor must be presented to the designated judge (or Assignment Judge) authorized
to enter orders. If a defendant desires to challenge the decision of a criminal division
manager not to recommend enrollment or of a prosecutor refusing to consent to
enrollment into a PTI program, a motion must be filed before the designated judge (or the
Assignment Judge) authorized to enter orders under R. 3:28. The challenge is to be based
upon alleged arbitrary or capricious action, and the defendant has the burden of showing
that the criminal division manager or prosecutor abused discretion in processing the
application. No direct appeal can be filed to the Appellate Division challenging the
actions of the criminal division manager or the prosecutor. The decision of the criminal
division manager or prosecutor may be challenged at a hearing on defendant's motion
before the designated judge (or Assignment Judge) and, thereafter, defendant or
prosecutor can seek leave to appeal from the court's decision denying or permitting
A defendant shall also be entitled to a hearing challenging a criminal division manager or
prosecutor's recommendation (following an initial or subsequent adjournment under Rule
3:28) that the prosecution of defendant proceed in the normal course. The decision of the
court shall be appealable by the defendant or the prosecutor as in the case of any
A defendant aggrieved by the decision of the designated judge or assignment judge
respecting the joint decision of the criminal division manager and prosecutor to deny an
application for participation in a pretrial intervention program may not seek appellate
review thereof until after entry of judgment of conviction. A defendant may then seek
such review even if the judgment was entered following a plea of guilty. However, a
prosecutor whose denial of consent has been reversed by the designated judge or
assignment judge may seek leave to appeal pursuant to R. 2:2.
Guidelines 2, 3, 6 and 8 and Comments to Guidelines 2, 3, 5 and 6 amended July 13,
1994 to be effective January 1, 1995; Guidelines 3(g) and (h) and Comments to
Guidelines 3(g) and (h) amended June 28, 1996 to be effective September 1, 1996.
1 Of course all defendants charged with an indictable offense are eligible for PTI.
Ohio Diversion Statute
2935.36 Pre-trial diversion programs.
(A) The prosecuting attorney may establish pre-trial diversion programs for adults who are
accused of committing criminal offenses and whom the prosecuting attorney believes
probably will not offend again. The prosecuting attorney may require, as a condition of an
accused’s participation in the program, the accused to pay a reasonable fee for supervision
services that include, but are not limited to, monitoring and drug testing. The programs shall
be operated pursuant to written standards approved by journal entry by the presiding judge
or, in courts with only one judge, the judge of the court of common pleas and shall not be
applicable to any of the following:
(1) Repeat offenders or dangerous offenders;
(2) Persons accused of an offense of violence, of a violation of section 2903.06, 2907.04,
2907.05, 2907.21, 2907.22, 2907.31, 2907.32, 2907.34, 2911.31, 2919.12, 2919.13, 2919.22,
2921.02, 2921.11, 2921.12, 2921.32, or 2923.20 of the Revised Code, or of a violation of
section 2905.01, 2905.02, or 2919.23 of the Revised Code that, had it occurred prior to July
1, 1996, would have been a violation of section 2905.04 of the Revised Code as it existed
prior to that date, with the exception that the prosecuting attorney may permit persons
accused of any such offense to enter a pre-trial diversion program, if the prosecuting
attorney finds any of the following:
(a) The accused did not cause, threaten, or intend serious physical harm to any person;
(b) The offense was the result of circumstances not likely to recur;
(c) The accused has no history of prior delinquency or criminal activity;
(d) The accused has led a law-abiding life for a substantial time before commission of the
(e) Substantial grounds tending to excuse or justify the alleged offense.
(3) Persons accused of a violation of Chapter 2925. or 3719. of the Revised Code;
(4) Drug dependent persons or persons in danger of becoming drug dependent persons, as
defined in section 3719.011 of the Revised Code. However, this division does not affect the
eligibility of such persons for intervention in lieu of conviction pursuant to section 2951.041
of the Revised Code.
(5) Persons accused of a violation of section 4511.19 of the Revised Code or a violation of
any substantially similar municipal ordinance.
(B) An accused who enters a diversion program shall do all of the following:
(1) Waive, in writing and contingent upon the accused’s successful completion of the
program, the accused’s right to a speedy trial, the preliminary hearing, the time period within
which the grand jury may consider an indictment against the accused, and arraignment,
unless the hearing, indictment, or arraignment has already occurred;
(2) Agree, in writing, to the tolling while in the program of all periods of limitation
established by statutes or rules of court, that are applicable to the offense with which the
accused is charged and to the conditions of the diversion program established by the
(3) Agree, in writing, to pay any reasonable fee for supervision services established by the
(C) The trial court, upon the application of the prosecuting attorney, shall order the release
from confinement of any accused who has agreed to enter a pre-trial diversion program and
shall discharge and release any existing bail and release any sureties on recognizances and
shall release the accused on a recognizance bond conditioned upon the accused’s compliance
with the terms of the diversion program. The prosecuting attorney shall notify every victim
of the crime and the arresting officers of the prosecuting attorney’s intent to permit the
accused to enter a pre-trial diversion program. The victim of the crime and the arresting
officers shall have the opportunity to file written objections with the prosecuting attorney
prior to the commencement of the pre-trial diversion program.
(D) If the accused satisfactorily completes the diversion program, the prosecuting attorney
shall recommend to the trial court that the charges against the accused be dismissed, and the
court, upon the recommendation of the prosecuting attorney, shall dismiss the charges. If
the accused chooses not to enter the prosecuting attorney’s diversion program, or if the
accused violates the conditions of the agreement pursuant to which the accused has been
released, the accused may be brought to trial upon the charges in the manner provided by
law, and the waiver executed pursuant to division (B)(1) of this section shall be void on the
date the accused is removed from the program for the violation.
(E) As used in this section:
(1) “Repeat offender” means a person who has a history of persistent criminal activity and
whose character and condition reveal a substantial risk that the person will commit another
offense. It is prima-facie evidence that a person is a repeat offender if any of the following
(a) Having been convicted of one or more offenses of violence and having been imprisoned
pursuant to sentence for any such offense, the person commits a subsequent offense of
(b) Having been convicted of one or more sexually oriented offenses as defined in section
2950.01 of the Revised Code and having been imprisoned pursuant to sentence for one or
more of those offenses, the person commits a subsequent sexually oriented offense;
(c) Having been convicted of one or more theft offenses as defined in section 2913.01 of the
Revised Code and having been imprisoned pursuant to sentence for one or more of those
theft offenses, the person commits a subsequent theft offense;
(d) Having been convicted of one or more felony drug abuse offenses as defined in section
2925.01 of the Revised Code and having been imprisoned pursuant to sentence for one or
more of those felony drug abuse offenses, the person commits a subsequent felony drug
(e) Having been convicted of two or more felonies and having been imprisoned pursuant to
sentence for one or more felonies, the person commits a subsequent offense;
(f) Having been convicted of three or more offenses of any type or degree other than traffic
offenses, alcoholic intoxication offenses, or minor misdemeanors and having been
imprisoned pursuant to sentence for any such offense, the person commits a subsequent
(2) “Dangerous offender” means a person who has committed an offense, whose history,
character, and condition reveal a substantial risk that the person will be a danger to others,
and whose conduct has been characterized by a pattern of repetitive, compulsive, or
aggressive behavior with heedless indifference to the consequences.
Effective Date: 09-26-2003
PRETRIAL INTERVENTION PROGRAM
SECTION 17-22-10. Short title.
This chapter may be cited as the “Pretrial Intervention Act.”
SECTION 17-22-20. Definitions.
When used in this chapter:
(1) The term “prosecutorial discretion” shall mean the power of the circuit solicitor to consider all
circumstances of criminal proceedings and to determine whether any legal action is to be taken and, if so
taken, of what kind and degree and to what conclusion.
(2) The term “noncriminal disposition” shall mean the dismissal of a criminal charge without prejudice to
the State to reinstate criminal proceedings on motion of the solicitor.
SECTION 17-22-30. Circuit solicitors to establish pretrial intervention programs; oversight of
(A) Each circuit solicitor shall have the prosecutorial discretion as defined herein and shall as a matter of
such prosecutorial discretion establish a pretrial intervention program in the respective circuits.
(B) The circuit solicitors are specifically endowed with and shall retain all discretionary powers under the
(C) A pretrial intervention program shall be under the direct supervision and control of the circuit
solicitor; however, he may contract for services with any agency desired.
(D) The South Carolina Commission on Prosecution Coordination shall oversee administrative
procedures for the Circuit Solicitors’ Pretrial Intervention Programs.
SECTION 17-22-40. Pretrial intervention coordinator; staff; funding.
There is established the office of Pretrial Intervention Coordinator whose responsibility is to assist the
solicitor in each judicial circuit in establishing and maintaining a pretrial intervention program. The
office of Pretrial Intervention Coordinator must be within the South Carolina Commission on Prosecution
Coordination. The coordinator and such staff as is necessary to assist in the implementation of the
provisions of this chapter must be employed by the South Carolina Commission on Prosecution
Coordination. The office of the coordinator must be funded by an appropriation to the Commission on
Prosecution Coordination in the state general appropriation act.
SECTION 17-22-50. Persons not to be considered for intervention.
(A) A person must not be considered for intervention if:
(1) he previously has been accepted into an intervention program; or
(2) the person is charged with:
(b) driving under the influence of intoxicating liquor or drugs;
(c) a traffic-related offense which is punishable only by fine or loss of points;
(d) a fish, game, wildlife, or commercial fishery-related offense which is punishable by a loss of eighteen
points as provided in Section 50-9-1020;
(e) a crime of violence as defined in Section 16-1-60; or
(f) an offense contained in Chapter 25 of Title 16 if the offender has been convicted previously of a
violation of that chapter or a similar offense in another jurisdiction.
(B) However, this section does not apply if the solicitor determines the elements of the crime do not fit
SECTION 17-22-55. Additional conditions, for admission to pretrial intervention, of person charged with
fish, game, wildlife, or commercial fishery-related offense.
As a condition of admission to the pretrial intervention program of a person charged with a fish, game,
wildlife, or commercial fishery-related offense which does not disqualify him for intervention, this person
shall pay an additional administrative charge equal to the maximum monetary fine, not to exceed five
hundred dollars, which could be imposed for the offense. The administrative charge must be deposited in
the game and fish fund of the county where the offense was committed. Also, if any property was seized
and confiscated at the time of the arrest for the offense, as a condition of admission to the pretrial
intervention program, the offender must agree to the retention and sale of that property as provided by law
by the law enforcement agency making the seizure. The proceeds from the sale also must be deposited in
the game and fish fund of the county wherein the offense was committed.
SECTION 17-22-60. Standards of eligibility for intervention program.
Intervention is appropriate only where:
(1) there is substantial likelihood that justice will be served if the offender is placed in an intervention
(2) it is determined that the needs of the offender and the State can better be met outside the traditional
criminal justice process;
(3) it is apparent that the offender poses no threat to the community;
(4) it appears that the offender is unlikely to be involved in further criminal activity;
(5) the offender, in those cases where it is required, is likely to respond quickly to rehabilitative treatment;
(6) the offender has no significant history of prior delinquency or criminal activity;
(7) the offender has not previously been accepted in a pretrial intervention program.
SECTION 17-22-70. Information which may be required by solicitor.
Prior to admittance of an offender into an intervention program, the solicitor or judge, if application is
made to the court pursuant to Section 17-22-100, may require the offender to furnish information
concerning the offender’s past criminal record, education and work record, family history, medical or
psychiatric treatment or care received, psychological tests taken and other information which, in the
solicitor’s or judge’s opinion, has bearing on the decision as to whether the offender should be admitted.
Solicitor’s office records under this section shall adhere to and abide by Federal Confidentiality
Regulation 42 CFR Part 2 and any other applicable federal, state, or local regulations.
SECTION 17-22-80. Recommendations of victim and law enforcement agency.
Prior to any person being admitted to a pretrial intervention program the victim, if any, of the crime for
which the applicant is charged and the law enforcement agency employing the arresting officer shall be
asked to comment in writing as to whether or not the applicant should be allowed to enter an intervention
program. In each case involving admission to an intervention program, the solicitor or judge, if
application is made to the court pursuant to Section 17-22-100, shall consider the recommendations of the
law enforcement agency and the victim, if any, in making a decision.
SECTION 17-22-90. Agreements required of offender in program.
(1) waive, in writing and contingent upon his successful completion of the program, his right to a speedy
(2) agree, in writing, to the tolling while in the program of all periods of limitation established by statutes
or rules of court;
(3) agree, in writing, to the conditions of the intervention program established by the solicitor;
(4) in the event there is a victim of the crime, agree, in writing, to make restitution to the victim within a
specified period of time and in an amount to be determined by the solicitor;
(5) agree, in writing, that records relating to participation in pretrial intervention or information obtained
through pretrial intervention is not admissible as evidence in subsequent proceedings, criminal or civil,
and communication between pretrial intervention counselors and defendants shall remain as privileged
communication unless a court of competent jurisdiction determines that there is a compelling public
interest that the communication be revealed. A written admission of guilt may not be required of a
defendant before acceptance or completion of the pretrial intervention program;
(6) if the offense is committing or attempting to commit a lewd act upon a child under the age of sixteen
years pursuant to Section 16-15-140, agree in the agreement between the solicitor’s office and the
offender as provided in Section 17-22-120 to allow information about the offense to be made available to
day care centers, group day care homes, family day care homes, church or religious day care centers, and
other facilities providing care to children and related agencies by the State Law Enforcement Division
pursuant to regulations which the State Law Enforcement Division shall promulgate; and
(7) if the offense is first offense criminal domestic violence pursuant to Section 16-25-20, agree in writing
to successful completion of a batterer’s treatment program approved by the Department of Social
SECTION 17-22-100. Time for application to intervention program.
An offender must make application to an intervention program or to the chief administrative judge of the
court of general sessions no later than seventy-five days after service of the warrant or within ten days
following appointment of counsel for the charge for which he makes the application. However, in the
discretion of the solicitor or the chief administrative judge of the court of general sessions, if application
is made directly to the judge, the provisions of this section may be waived. Applications received by the
chief administrative judge of the court of general sessions under this section may be preliminarily
approved by the judge pending a determination by the pretrial office that the offender is eligible to
participate in a pretrial program pursuant to Sections 17-22-50 and 17-22-60. Applications received by
the chief administrative judge of the court of general sessions and information obtained pursuant to
Section 17-22-70 must be forwarded to the pretrial office.
SECTION 17-22-110. Fees for application and participation; waiver.
An applicant to an intervention program or an offender who applies to the chief administrative judge of
the court of general sessions for admission to a program pursuant to Section 17-22-100 shall pay a
nonrefundable application fee of one hundred dollars and, if accepted into the program, a nonrefundable
participation fee of two hundred fifty dollars prior to admission. All fees paid must be deposited into a
special circuit solicitor’s fund for operation of the pretrial intervention program. All fees or costs of
supervision may be waived partially or totally by the solicitor in cases of indigency. The solicitor may
also, if he determines necessary, in situations other than indigency allow scheduling of payments in lieu
of lump sum payment. In no case shall aggregate fees for application and participation in an intervention
program exceed three hundred fifty dollars. However, in cases where the solicitor determines that referral
to another agency or program is needed to achieve rehabilitation for a problem directly related to the
charge, the defendant may be required to pay his participation in that special program, except that no
services may be denied due to inability to pay.
SECTION 17-22-120. Individual agreement between offender and solicitor; alcohol and drug abuse
In any case in which an offender agrees to an intervention program, a specific agreement must be made
between the solicitor and the offender. This agreement shall include the terms of the intervention
program, the length of the program and a section stating the period of time after which the prosecutor will
either dismiss the charge or seek a conviction based upon that charge. The agreement must be signed by
the offender and his or her counsel, if represented by counsel, and filed in the solicitor’s office. The
Commission on Alcohol and Drug Abuse shall provide training if requested on the recognition of alcohol
and drug abuse to counselor employees of local pretrial intervention programs and the local agency
authorized by Section 61-12-20 shall provide services to alcohol and drug abusers if referred by pretrial
intervention programs. However, no services may be denied due to an offender’s inability to pay.
SECTION 17-22-130. Reports and identification as to offenders accepted for intervention program.
Notwithstanding the provisions of Section 17-1-40, in all cases where an offender is accepted for
intervention a report must be made and retained on file in the solicitor’s office, regardless of whether or
not the offender successfully completes the intervention program. All reports must be retained on file in
the solicitor’s office for a period of two years after successful completion, two years after rejection, or
two years after unsuccessful completion of the program. After the retention of these reports for two
years, they may be destroyed. The circuit solicitor shall furnish to the South Carolina Law Enforcement
Division personal identification information on each person who applies for intervention, is subsequently
accepted or rejected and successfully or unsuccessfully completes the program. This information may
only be used by the division and the State Coordinator’s Office in those cases where a circuit solicitor
inquires as to whether a person has previously been accepted in an intervention program. However, that
information may be confidentially released to the State Coordinator’s Office to assist in compiling annual
reports. The identification information on any defendant must not be under any circumstances released as
SECTION 17-22-140. Restitution to victim.
Prior to the completion of the pretrial intervention program the offender shall make restitution, as
determined by the solicitor, to the victim, if any.
SECTION 17-22-150. Disposition of charges against offenders accepted for intervention program.
(a) In the event an offender successfully completes a pretrial intervention program, the solicitor shall
effect a noncriminal disposition of the charge or charges pending against the offender. Upon such
disposition, the offender may apply to the court for an order to destroy all official records relating to his
arrest and no evidence of the records pertaining to the charge may be retained by any municipal, county,
or state entity or any individual, except as otherwise provided in Section 17-22-130. The effect of the
order is to restore the person, in the contemplation of the law, to the status he occupied before the arrest.
No person as to whom the order has been entered may be held thereafter under any provision of any law
to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or
acknowledge the arrest in response to any inquiry made of him for any purpose.
(b) In the event the offender violates the conditions of the program agreement: (1) the solicitor may
terminate the offender’s participation in the program, (2) the waiver executed pursuant to Section
17-22-90 shall be void on the date the offender is removed from the program for the violation and (3) the
prosecution of pending criminal charges against the offender shall be resumed by the solicitor.
SECTION 17-22-170. Unlawful retention or release of information regarding participation in
intervention program; penalty.
Any municipal, county, or state entity or any individual who unlawfully retains or releases information on
an offender’s participation in a pretrial intervention program is guilty of a misdemeanor and, upon
conviction, must be punished by a fine not exceeding two thousand dollars or by imprisonment not to
exceed one year.
The provisions of this section do not apply to circuit solicitors or their staff in the performance of their