Are Diversion Programs Available to First-Time Offenders in New York State?
Interviewer: Are there any diversion programs or special programs for first-time possession offenders that you can talk about?
Stuart Austin: Yes. Actually, the law has changed in the past 5 or 6 years, and the changes have really become a benefit for people who are deemed to have a problem, not who are sellers trying to profit from drug sales.
People who have a problem, who are deemed to be drug users can go into one of two courts usually, including the drug diversion court. In an essence, they screen you, they look at the type of history you have, and then there’s an interview with a psychologist or usually a drug counselor, find out what the extent of your problem is, and whether you really want to get help.
As your defense attorney, we can assist you in how to answer those questions and what to do. If you are accepted into the program and you complete the program, they will usually dismiss your case, they will seal the case also, and they will give you the option of sealing up to, I believe it is 3 previous misdemeanors.
Somebody who has a drug history over the last 5 years can actually wipe their slate clean to some extent by going into one of these drug diversion courts.
Is It Beneficial To Have Your Attorney Help You Enter the Diversion Program?
Interviewer: Is the diversion program easy to get into? Can you do it yourself, or do you really need the help of an attorney to get you in there?
Stuart Austin: You really do need the help of an attorney, primarily because you have to appear in court. If you don’t get the drug diversion program, you could be looking at a felony charge. Most of the drug charges are felonies and some are misdemeanors; they have a misdemeanor drug court. You could be facing a jail sentence of sometimes up to 1 year, sometimes more than that.
Here is an example of how an attorney helps you while you are going through the diversion program. While you are in the drug diversion program you talk to the staff about your drug history. You certainly may mention activities that you want to make sure aren’t going to be used against you later on in any kind of prosecution.
You have to make sure that you sign an agreement, which says that any of the questions you answer are for treatment purposes only and will not be used against you in any later proceedings, especially if you go into the drug diversion court. If you spend 6 months in the diversion program, and then drop out for some reason, now you’re looking at being prosecuted on those charges. Now you have a lot of drug testing and counseling statements and you want to make sure that those aren’t going to be used against you in a later proceeding.
How Long Will You Stay in a Diversion Program?
Interviewer: The program, how long does it go on for, normally?
Stuart Austin: It’s usually in the range of 12 to 24 months; the average is about 18 months. A lot of that can be done in an outpatient sober house after you’ve completed your initial phase of drug treatment program. You’d be allowed to work, you’d be allowed to visit.
It’s not a lock-down kind of program, but you have to go through the initial phase first which may include an inpatient phase. It may include an intense outpatient phase of 3 or 4 days a week. Then as you graduate through the different phases, it becomes less and less time, allowing you to lead more of a normal life on the outside.
Is the Diversion Program the Right Option for Everyone?
Interviewer: It sounds like the diversion program can be more invasive than being convicted. When is it smart to apply for that program?
Stuart Austin: If someone is looking at a felony plea without this drug diversion court, they’re probably going to end up on probation for 5 years. While they won’t have the same kind of intensiveness in the beginning, they’re going to have supervision for a much longer time, and at the end, they still end up with a felony conviction. This conviction will bar them from holding certain licenses and bar them from other activities, whether it’s a gun license or voting.
Additionally, the next time you go for a job interview you’re going to have to say, “Yes, I have a felony conviction.” While you’re right in the sense that it is more time consuming in the beginning, it is done on a shorter time scale and the goal at the end, or the prize at the end, is much greater than if someone does not undergo the diversion program.
That’s why most people want to enroll, because they want the help. It is important to mention that attending the diversion program will also help someone help him or herself, as opposed to just being convicted and being on probation or doing jail time. Those options may not cure you of whatever habit you have.