Diversion lets some people charged with a crime in Massachusetts complete a program of services instead of going through the ordinary court process, and the charges can then be dismissed. Several laws create it: court diversion in the District Court and Boston Municipal Court (G.L. c. 276A), with added rules for veterans; district attorney programs (G.L. c. 12, § 34); and restorative justice (G.L. c. 276B).
This guide follows a case in order. Section references are to chapter 276A unless another chapter is named.
First, the Basics: What Diversion Means
Diversion moves a case out of the ordinary court track and into a program while the criminal case is put on hold.
A program is community supervision and services, such as treatment, counseling, education, or community service work. An assessment is a full review of a person’s needs, and a plan of services is the set of services recommended to meet them (§ 1).
A stay of proceedings puts the criminal case on hold. A continuance postpones the case to a later date. Arraignment is the first court date on a criminal complaint; see What Happens at an Arraignment in Massachusetts?.
Step 1: Before Arraignment: District Attorney and Police Diversion
A district attorney or police department may divert a case before arraignment through programs they run themselves.
Each district attorney must set up a pre-arraignment diversion program, which may be used for a veteran or person on active service in the armed forces, a person with a substance use disorder, or a person with a mental illness who is charged with a crime (G.L. c. 12, § 34).
Chapters 276A and 276B do not limit a district attorney’s or police department’s authority to divert a person, and do not require either to accept a person into its program (§ 12). The restorative justice law also does not prohibit pre-arraignment programs run by law enforcement (c. 276B, § 2).
Step 2: At Arraignment: Screening and a 14-Day Assessment
Probation screens each defendant for diversion, and a qualified defendant can be given 14 days to be assessed by a program.
Probation must screen each defendant so the judge can consider diversion at arraignment, and confirm whether the defendant is a veteran or on active service (§§ 3, 10). A defendant who qualifies for consideration may be offered a 14-day continuance for assessment by a program. If the defendant accepts at arraignment, the judge must grant it and, through probation, direct the defendant to a program (§ 3).
A judge may give the same 14 days to a defendant who at first appears not to meet every requirement of § 2, on the judge’s own initiative or at the defendant’s request, taking the prosecution’s opinion into consideration (§ 3).
Step 3: Who Qualifies for Court Diversion
Chapter 276A sets out who qualifies for court diversion and which charges are excluded.
The court may divert a person who (§ 2):
- is charged with a crime punishable by imprisonment that the District Court may finally decide;
- has not been convicted of a crime in any state or federal criminal court after turning 18, except traffic violations that could not have been punished by imprisonment;
- has no outstanding warrants, continuances, appeals, or pending criminal cases in any court; and
- has a program’s recommendation that the person would benefit.
A judge may still assess, and grant a stay to, a person who does not meet every requirement of § 2 (§§ 3, 5).
Excluded charges. Diversion is not allowed for (§ 4(b)):
- offenses listed in the second sentence of G.L. c. 277, § 70C, which include OUI and certain other motor vehicle offenses, abuse prevention order violations under chapter 209A, and every offense in chapter 265 (crimes against the person);
- offenses punishable by more than 5 years of incarceration, or carrying a mandatory minimum (a minimum term of incarceration set by law); and
- offenses that the law says may not be continued without a finding or placed on file.
Exceptions. Diversion is still allowed for assault or assault and battery under c. 265, § 13A(a), and for picketing a court or disrupting court proceedings under c. 268, §§ 13A and 13C (§ 4(c)(i)). An exception for some veterans charged with OUI appears in Step 4. Diversion of a District Court charge does not prevent a later indictment on the same charges in the Superior Court (§ 4(c)).
Step 4: Added Rules for Veterans and Service Members
Veterans, people on active service, and people with a history of military service have their own screening and assessment rules, and some can be diverted on a first OUI charge.
At or before arraignment, probation must use best efforts to confirm whether the defendant is a veteran (as defined in G.L. c. 4, § 7, cl. 43), on active service in the U.S. armed forces, or has a history of military service. The court may divert such a person, regardless of age, on a charge punishable by imprisonment, if the person meets the same prior-record, pending-case, and program-recommendation requirements as § 2 (§ 10).
Time for an assessment. A veteran or person on active service who qualifies for consideration may be offered a 30-day continuance at arraignment for assessment by the U.S. Department of Veterans Affairs or another agency experienced in veterans affairs (§ 3). Separately, a defendant eligible under § 10 may be offered a 14-day continuance to obtain an assessment of treatment options from such an agency. Before offering it, the court must ask about the circumstances of the charge and consider the Commonwealth’s opinion. If the defendant has shown symptoms suggesting a mental illness, a qualified psychiatrist, clinical psychologist, or physician must give the court a written report (§ 11).
First-offense OUI. OUI means operating a motor vehicle under the influence of alcohol or drugs, or with a blood alcohol level of 0.08 or more (c. 90, § 24(1)(a)(1)). It is normally excluded, but a veteran or person on active service may be diverted on an OUI charge if the person has never before been arrested for or charged with OUI or a like offense in Massachusetts or elsewhere, and has been clinically diagnosed with a traumatic brain injury, substance abuse disorder, or serious mental illness in connection with military service or active duty (§ 4(c)(ii)). Serious mental illness means a current or recent diagnosis of a listed disorder, such as a major depressive, bipolar, anxiety, or trauma and stressor related disorder (§ 4(a)). The court must consider the prosecution’s opinion, and probation checks whether the person was diverted under this rule before (§§ 3, 4(c)). The OUI exception, the prior-diversion check, and the 30-day continuance were added by the 2018 BRAVE Act (St. 2018, c. 218, §§ 33–35).
Veterans Treatment Courts. The Trial Court also runs Veterans Treatment Courts, specialized court sessions for defendants who have served in the U.S. armed forces. According to the Trial Court, they address post-traumatic stress disorder, traumatic brain injury, and military sexual trauma, and require abstinence, mandated treatment, swift accountability, and weekly interaction with the court. There are seven: at the Boston Municipal Court Central Division and the District Courts in Lawrence, Framingham, Dedham, Brockton, Holyoke, and Gardner. The Trial Court states that transfer to one of them may be an option for a case in another court.
Step 5: The Assessment Report and the Judge’s Decision
After the assessment, the program reports to the judge, the prosecution and any victim may make a recommendation, and the judge decides.
The program director files a written report with the assessment, a recommendation, and a plan of services if the defendant would benefit. The judge must give the prosecution and any victim a chance to make a recommendation, then makes a final decision, which cannot be appealed (§ 5).
If the defendant qualifies and agrees to the plan approved by the judge, the case is stayed for 90 days. The judge may instead hold a hearing of the facts and then continue the case without a finding for 90 days (§ 5).
Your written consent is required. No stay is granted unless the defendant consents in writing, with a lawyer’s advice, and knowingly waives the right to a speedy trial (§ 5).
Protections for what you say. Statements during the assessment, and a decision not to enter a program, cannot be used against the defendant in any criminal proceeding. Consent to the stay, and anything done or said to meet its terms, cannot be used as an admission if the case resumes. Statements from the assessment or stay may not be disclosed to a prosecutor or police officer in connection with the charges (§ 5).
Step 6: During the Stay: Reports, Violations, and New Charges
The program reports to the court during the stay, and a violation or a new charge can end it.
The program director sends progress reports and must report violations or new arrests right away. If the defendant violates a condition or is charged with a new offense, the judge may bring the defendant to court and must allow the defendant to be heard. If the judge finds a violation or new charge, the judge may end the stay and let the Commonwealth proceed on the original charges, with no appeal (§ 6).
Step 7: The End of the Stay: Dismissal or Extension
At the end of the 90 days, the judge can dismiss the charges, extend the program, or resume the case.
The program director reports that the defendant completed the program or recommends up to 90 more days. If the defendant completed it, the judge may dismiss the original charges. If an extension is recommended, the judge may dismiss, extend, or resume the case (§ 7). For what a dismissed charge means for your record, see What Is in a Massachusetts Criminal Record? and Expunging a Criminal Record in Massachusetts.
Restorative Justice: Available at Any Stage
Restorative justice is a voluntary program that brings together the people affected by a crime to build a plan to repair the harm, and completing it leads to dismissal.
Restorative justice is a voluntary process in which offenders, victims, and community members together identify and address the harms and obligations resulting from an offense. The offender must accept responsibility and makes reparation to the victim or community. A program may include the parties, their supporters, and community members, or a one-on-one dialogue between victim and offender (c. 276B, § 1).
Adults and juveniles can take part before arraignment or at any stage of a case, with the consent of the district attorney and the victim, and it can be the final outcome with the judge’s approval. If the defendant completes the program, the charge must be dismissed; if not, the case returns to court (c. 276B, § 2).
Before conviction or adjudication, a person is not eligible if charged with a sexual offense (as defined in c. 123A, § 1), an offense resulting in serious bodily injury or death, or an offense against a family or household member (c. 276B, § 3). Family or household members include current or former spouses, people with a child in common, and people who are or were in a substantive dating or engagement relationship (c. 265, § 13M).
Participation cannot be used as evidence or as an admission of guilt, delinquency, or civil liability. Statements made in the program are confidential, and information obtained in it cannot be used in a criminal investigation or prosecution, though evidence from an independent source, or that would inevitably have been discovered lawfully, is not barred (c. 276B, § 4).
Frequently Asked Questions
Can the victim stop diversion?
In court diversion, a victim may make a recommendation, but the judge makes the final decision (c. 276A, § 5). Restorative justice requires the consent of both the district attorney and the victim (c. 276B, § 2).
Is a first OUI eligible for court diversion?
Generally no, because OUI is on the excluded list. The exception is the veterans rule in § 4(c)(ii), described in Step 4.
Questions About Diversion? Talk to a Lawyer
Whether diversion is available depends on the charge, the court, and a person’s prior record. The Law Office of William J. Barabino in Medford has over 23 years of experience in Massachusetts criminal defense, including pretrial diversion, and represents clients throughout Greater Boston.
Call 781-393-5900 for a confidential consultation.
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Disclaimer
This article is for general educational purposes only and is not legal advice. Diversion eligibility depends on the specific charge, court, and record, and statutes and court programs change. Reading this page does not create an attorney-client relationship. If you have questions about diversion in a Massachusetts criminal case, consult a licensed Massachusetts criminal defense attorney about your situation.
