Diversion, Accountability Courts and First Offender
When an individual has a pending
criminal, DUI, or traffic case in a Georgia criminal court, that person at some point in the process must make a
decision. He or she must decide whether to go to trial or pled guilty (or no contest, if permitted). When
you go to trial, you can never be absolutely certain of the outcome of that trial. When you enter a plea of guilty, you may
or may not have a deal worked out with the prosecuting attorney of the court. If you have a deal with the prosecuting attorney,
also known as a plea bargain, you can be fairly certain as to how your case will be worked out. In either of these scenarios,
the criminal defendant frequently ends up and with a criminal record. Of course, this can negatively impact employment,
educational, immigration status and other opportunities. Traditionally, individuals caught up in the criminal court system,
including city, probate, magistrate, state or superior courts, sometimes have had special types of case dispositions available
to them, other than simple trial or guilty plea. For example an individual may be able to plead as a "first offender"
in certain criminal cases, or in drug cases, plead guilty under the "conditional discharge statute". O.C.G.A.16-13-2. Although
these two alternatives differ in several important respects, they are similar in that in both first offender and conditional
discharge, the judge postpones, or "witholds" deciding whether the individual shall be convicted of the crime.
In both of these cases, the defendant could still be ordered to pay a fine, go on probation, get counseling, perform
community service, and even go to jail or prison. However, if the defendant successfully completes the conditions imposed,
the judge will then make the determination that the defendant is acquitted, or found not guilty, and thus not have a record
of a criminal conviction. In drug cases, this is especially valuable because it means that the criminal record can be immediately
restricted (formerly known as expunged).
the last few years, Georgia courts have created other very beneficial alternatives. Depending on the seriousness of the crime
charged, diversion, sometimes known as pre trial intervention (PTI), in one form or another, may be available in almost
all courts. If a case goes this route, the defendant and the prosecuting attorney agree to hold the case open while the defendant
performs certain obligations over a specified period of time. Some of these obligations may include: completion
of drug/alcohol/anger counseling, performing community service, passing a number of drug screens, attending a shoplifting
prevention seminar, attending Mothers Against Drunk Driving class, and restitution to any victim for any losses incurred.
Other conditions can be imposed by agreement depending on the nature of the case. If the defendant lives up to his end of
the bargain and successfully completes diversion, the case is normally "nolle prossed", meaning the prosecuting
attorney decides not to prosecute--dismissed. Depending on the court, restricting the criminal record can in some cases be
automatic. In others the defendant must formally request restriction from the court, clerk, or jail records.
Counseling is usually a major component of Accountability Court
as well as Diversion and Conditional Discharge
Additionally, the 2012 Sentencing Reform Act has formalized a state wide system
of "Accountibility Courts." These are special courts within the system only for groups of people with problems that
these courts are uniquely designed to handle. There are now Veterans Courts, Mental Health Courts and
Drug and DUI Courts. They all involve counseling, frequent court appearances and close interaction with court personnel. An
individual who has a case transferred to an accountability court must agree to waive certain valuable constitutional rights
in order to gain the benefits that the accountability court has to offer. For example, the defendant must freely and
honestly interact with the judge, counselors, and other court personnel without benefit of counsel. These interactions are
very personal in nature. What this does is create a less adversarial relationship between the accused and the prosecution.
The goal is to recognize and remedy the problems of the individual rather than to prosecute and punish. Depending on the court
rules, an individual who successfully graduates an accountability court can get his or case nolle prossed or can greatly benefit
from a much reduced sentence. Even if the case is not outright nolle prossed or dismissed, successful completion could
mean total elimination of otherwise required jail or prison time. Additionally, successful completion could mean the
individual is eligible for record restriction.
Depending on the program, should you drop out, the penalty can be substantial. Your
case will be returned to the regular criminal justice system for prosecution after you have already invested your time, money,
All these programs constitute a progressive and enlightened way to address an underlying problem in the individual
and hopefully prevent repeat conduct. They will evolve as needed, and they should be encouraged.
When you come in to meet with Mr. Cohen he will review with you your eligibility, the benefits and disadvantages
of these various programs, and help you decide what is best for your situation.