By Nathan Cate, Nashville Criminal Defense Attorney | Cate Law
Most people charged with a crime in Tennessee do not know that two separate diversion programs exist — and that the difference between them can determine whether you end up with a clean record or a permanent conviction. I walk clients through this distinction regularly, because it is one of the most powerful tools in Tennessee criminal defense and one of the least understood.
Diversion means the charges are dismissed. Not reduced. Not pled down to a lesser offense. Dismissed. And after dismissal, you become eligible to have the record expunged — meaning the arrest itself can be removed from your criminal history as if it never happened.
If you are facing a criminal charge in Nashville or anywhere in Middle Tennessee, understanding diversion should be one of the first conversations you have with your lawyer. Here is how both programs work.
What Is Diversion?
Diversion is a statutory alternative to prosecution. Instead of going to trial or entering a guilty plea, the defendant agrees to comply with certain conditions for a set period of time. If the defendant completes those conditions successfully, the charges are dismissed.
Tennessee has two separate diversion tracks. They are governed by different statutes, controlled by different decision-makers, and available in different circumstances. Most people — including some lawyers — conflate the two. They are not the same.
Pretrial Diversion: The District Attorney’s Program
The Statute
Pretrial diversion is authorized by Tenn. Code Ann. § 40-15-105. Under this statute, the District Attorney General has the authority to suspend prosecution of a criminal case and place the defendant on a period of supervision.
Who Controls the Decision
This is the critical distinction. Pretrial diversion is entirely within the discretion of the DA’s office. The judge does not grant it. The defendant does not have a right to it. The prosecutor decides whether to offer it, what conditions to attach, and how long the supervision lasts.
In Davidson County, the DA’s office has internal policies about which cases qualify for pretrial diversion and which do not. These policies change with each administration and can vary by division. This means your eligibility for pretrial diversion depends partly on the law and partly on the policies of the specific assistant DA handling your case.
Eligibility
Under the statute, pretrial diversion is generally available to defendants who:
- Have no prior felony convictions
- Have no prior grants of pretrial diversion (you only get one shot at this program in your lifetime)
- Are charged with an offense that is not excluded by statute (certain sexual offenses, DUI, and specific violent crimes are excluded)
The DA considers a range of factors in deciding whether to grant pretrial diversion, including the defendant’s criminal history, the circumstances of the offense, the defendant’s amenability to rehabilitation, the victim’s position on diversion, and the interests of the public.
The Application Process
Applying for pretrial diversion is not automatic. In most jurisdictions, including Davidson County, the process goes like this:
- Your attorney sends a formal letter of application to the assigned ADA, outlining your background, lack of criminal history, employment or education status, and the reasons diversion is appropriate.
- Supporting documentation is attached — character letters, proof of employment, enrollment records, community service already completed, or completion of any relevant programs (counseling, anger management, substance abuse treatment).
- The ADA reviews the application and either grants the diversion, denies it, or negotiates conditions.
- If granted, a Memorandum of Understanding is signed by the defendant, the defense attorney, and the ADA, outlining the conditions and duration of the diversion period.
In my experience, the strength of the application matters. A bare-bones letter asking for diversion is less effective than an application that demonstrates the defendant has already taken steps toward accountability and that the case is appropriate for this program.
Conditions During Pretrial Diversion
The conditions attached to pretrial diversion vary by case, but commonly include:
- Supervision by a probation officer or pretrial services
- Drug and alcohol testing
- Community service hours
- Counseling or treatment programs
- Restitution to the victim
- No new criminal charges during the diversion period
- A supervision period typically ranging from 6 months to 2 years, though the statute allows up to the maximum sentence for the charged offense
What Happens When You Complete Pretrial Diversion
If you comply with every condition for the full term, the charges are dismissed. After dismissal, you become eligible to petition the court for expungement of the arrest and charge. Once expunged, the charge does not appear on background checks through the Tennessee Bureau of Investigation.
What Happens If You Violate
If you violate a condition of pretrial diversion — a failed drug test, a new arrest, failure to report — the DA can revoke the diversion and reinstate the original charges. At that point, the case proceeds as if diversion was never granted. This is why compliance during the diversion period is not optional. One violation can unwind the entire benefit.
Judicial Diversion: The Judge’s Program
The Statute
Judicial diversion is authorized by Tenn. Code Ann. § 40-35-313. This is a separate program from pretrial diversion, and it operates under different rules.
Who Controls the Decision
The judge controls judicial diversion. The defendant enters a guilty plea or is found guilty at trial, and the judge then defers further proceedings and places the defendant on a period of probation. If the defendant completes the probation successfully, the guilty plea or conviction is set aside and the charges are dismissed.
This is an important structural difference from pretrial diversion. With judicial diversion, you enter a guilty plea first and then the judge suspends the proceedings. If you complete the program, the plea is withdrawn and the case is dismissed. If you fail, the judge enters the conviction based on the guilty plea you already made.
Eligibility
Judicial diversion has more specific eligibility requirements than pretrial diversion:
- The defendant must be found guilty or plead guilty to an offense that is a Class A or Class B misdemeanor, or a Class C, D, or E felony
- The defendant must have no prior felony convictions
- The defendant must have no prior grants of judicial diversion (one per lifetime, just like pretrial diversion)
- The offense must not be a Class A or B felony, a sexual offense requiring registration, DUI (with some exceptions), or certain other excluded offenses
The judge considers nine statutory factors outlined in § 40-35-313, including the defendant’s amenability to correction, the circumstances of the offense, the defendant’s criminal record, social history, mental and physical condition, and the deterrent effect on others.
How Judicial Diversion Works in Practice
Here is the typical flow in Davidson County:
- Plea negotiation results in an agreement that the defendant will plead guilty with a recommendation for judicial diversion.
- The defendant enters the guilty plea in open court.
- The judge considers the statutory factors and, if satisfied, grants judicial diversion.
- The defendant is placed on a period of supervised probation, typically with conditions similar to pretrial diversion — drug testing, community service, counseling, restitution, no new offenses.
- If the defendant completes all conditions, the judge sets aside the guilty plea and dismisses the charges.
- The defendant then petitions for expungement of the arrest and charge.
Why Judicial Diversion Matters When Pretrial Diversion Is Denied
Here is why every defendant needs to know both programs exist. If the DA denies pretrial diversion, that does not mean diversion is off the table. Judicial diversion is a separate program controlled by the judge. A defendant who is denied pretrial diversion by the DA can still request judicial diversion from the judge.
I have had cases in Davidson County where the DA’s office denied pretrial diversion based on internal policy — say, a blanket denial for certain charge types — and the judge granted judicial diversion after hearing the facts and considering the statutory factors. The two programs are independent pathways to the same result: dismissal and expungement eligibility.
Pretrial vs Judicial Diversion: Side-by-Side Comparison
Decision-maker
- Pretrial: District Attorney
- Judicial: Judge
When it happens
- Pretrial: Before trial or plea, prosecution is suspended
- Judicial: After guilty plea or trial conviction, sentencing is deferred
Guilty plea required?
- Pretrial: No
- Judicial: Yes
Risk if you fail
- Pretrial: Original charges reinstated, case proceeds to trial or plea
- Judicial: Guilty plea stands, conviction is entered
Who can be excluded
- Pretrial: DA has broad discretion; certain offenses excluded by statute
- Judicial: Statutory eligibility limits (no Class A/B felonies, no sex offenses, limited DUI eligibility)
Result on completion
- Pretrial: Charges dismissed, expungement eligible
- Judicial: Guilty plea withdrawn, charges dismissed, expungement eligible
Lifetime limit
- Pretrial: One grant per lifetime
- Judicial: One grant per lifetime
This matters: pretrial and judicial diversion are counted separately. A person who has received pretrial diversion in the past is still eligible for judicial diversion on a future case, and vice versa. Understanding this can be the difference between a clean record and a permanent conviction.
Which Charges Commonly Qualify for Diversion in Nashville?
While every case is evaluated individually, the types of cases where I most frequently secure diversion for clients include:
- First-offense drug possession charges — simple possession of marijuana, pills, or controlled substances where the amount does not suggest distribution
- Shoplifting and property crimes — first-offense theft under $1,000 is a common diversion candidate
- Simple assault — particularly in cases where both parties were involved and the injury is minor
- Vandalism — first offenses involving low dollar amounts
- Criminal trespass
- Disorderly conduct and public intoxication — lower-level misdemeanors with strong diversion track records
The common thread is first offenders charged with lower-level offenses who can demonstrate they are unlikely to reoffend. The stronger the application and the cleaner the defendant’s background, the better the chance of diversion.
What Diversion Means for Your Record
Successful diversion completion, followed by expungement, means:
- The charge does not appear on standard Tennessee Bureau of Investigation background checks
- You can legally answer “no” when asked whether you have been convicted of a crime
- The arrest record is sealed from public access
- Professional licensing boards, employers, and landlords will not find the charge through standard screening
This is why diversion — whether pretrial or judicial — is worth pursuing in every eligible case. A dismissal followed by expungement is the best possible outcome short of the case never being filed in the first place.
If you are facing a criminal charge and want to know whether you qualify for diversion, explore your options on my practice areas page or contact my office directly. The eligibility analysis is case-specific, and the earlier you start the application process, the stronger it tends to be.
Frequently Asked Questions
Can I get diversion for a DUI in Tennessee?
DUI is excluded from pretrial diversion in Tennessee. Judicial diversion for DUI is also restricted, though there is limited availability for first-offense DUI in certain circumstances. The statutory exclusions for DUI are strict, and most DUI defendants will not qualify for either diversion program. There are other resolution strategies for DUI cases that may be available depending on the facts.
How long does the diversion period last?
The duration varies by case and by the agreement between the parties (for pretrial diversion) or the judge’s order (for judicial diversion). Most diversion periods in Davidson County last between 6 months and 2 years. More serious charges typically carry longer diversion periods. Some felony diversions can last up to the maximum sentence for the offense.
What happens if I get a new charge while on diversion?
A new criminal charge during the diversion period is a violation. For pretrial diversion, the DA can revoke the diversion and reinstate the original charges. For judicial diversion, the judge can revoke the deferral and enter the conviction based on your guilty plea. In either case, you lose the diversion benefit and face prosecution on the original charge plus the new one. This is the highest-risk scenario during diversion.
Can I get diversion if I have a prior misdemeanor conviction?
Prior misdemeanor convictions do not automatically disqualify you from either pretrial or judicial diversion. The statutes focus on prior felony convictions and prior diversion grants as the main disqualifiers. However, a prior record — even misdemeanors — is a factor the DA and judge will consider. A prior conviction for a similar offense makes diversion harder to obtain, but not impossible.
Is diversion the same as probation?
No. Diversion includes a period of supervision that looks like probation — reporting requirements, drug testing, conditions to follow. But the outcome is fundamentally different. Probation follows a conviction and leaves the conviction on your record. Diversion, if completed successfully, results in dismissal of the charges. There is no conviction. The record can be expunged. That difference is enormous for your future.
Do I need a lawyer to apply for diversion?
You are not legally required to have an attorney, but applying for diversion without one is a mistake I have seen hurt people. The application process requires presenting your case to the DA or the court in the most favorable light possible. A well-prepared application with supporting documentation, character references, and a clear narrative of rehabilitation significantly increases your chances. A form letter does not accomplish the same thing.
Charged with a crime in Nashville and wondering about diversion? Call (615) 664-8083 for a free consultation.