Criminal Defense Lawyer & Former Nashville Prosecutor Kevin Kennedy. 615-205-7311. Call or text for a free consultation.
Pretrial diversion can be one of the most favorable outcomes available in a Tennessee criminal case because it can allow an eligible defendant to avoid a guilty plea and, after successful completion, seek expungement of the charge. But pretrial diversion is not automatic, and the decision usually depends on eligibility, the facts of the case, the defendant’s background, and whether the prosecutor agrees to suspend the prosecution.
Kevin Kennedy is a Nashville criminal defense lawyer and former prosecutor. His experience evaluating criminal cases from the prosecution side can help clients understand how a district attorney may evaluate a diversion request, what weaknesses or mitigation may matter, and how to present a strong case for an outcome that avoids a conviction when pretrial diversion is legally available.
What Is Pretrial Diversion in Tennessee?
Tennessee pretrial diversion is governed by Tennessee Code Annotated § 40-15-105. It is sometimes described as a suspended prosecution. Instead of entering a guilty plea and being convicted, an eligible defendant may enter into a memorandum of understanding with the prosecution. The criminal prosecution is then suspended for an agreed period while the defendant completes the required conditions.
The Tennessee Bureau of Investigation explains that a person on pretrial diversion has not pleaded guilty and has not been found guilty. If the person successfully completes the diversion agreement, the case may ultimately be eligible for expungement. If the agreement is terminated or its conditions are not met, the prosecution can resume.
How Is Pretrial Diversion Different From Judicial Diversion?
Pretrial diversion and judicial diversion are not the same thing. With pretrial diversion, prosecution is suspended before a guilty plea or finding of guilt. Judicial diversion, by contrast, generally involves a guilty plea, a finding of guilt, or a plea of nolo contendere, with the judgment withheld while the defendant completes probationary conditions. Both can potentially lead to expungement, but the procedures, eligibility rules, and strategic considerations are different.
Because the distinction matters, a person should not assume that being eligible for one form of diversion necessarily means the other is available.
Who Decides Whether Pretrial Diversion Is Granted?
Pretrial diversion generally requires agreement with the district attorney. Tennessee law contemplates a memorandum of understanding between the prosecution and the qualified defendant, subject to court approval. That makes the prosecutor’s evaluation of the case especially important.
A diversion request can involve more than simply asking for leniency. The defense may need to address the seriousness of the charge, the defendant’s criminal history, employment, education, family responsibilities, treatment or counseling, restitution, acceptance of responsibility where appropriate, and other facts that bear on whether diversion is a reasonable resolution.
What Can a Pretrial Diversion Agreement Require?
The exact conditions depend on the agreement and the case. A pretrial diversion memorandum may require the defendant to remain law-abiding and comply with supervision or other conditions during the diversion period. Depending on the circumstances, the agreement may also address treatment, counseling, restitution, community service, or other case-specific requirements.
The diversion period cannot simply be ignored. A violation can jeopardize the agreement and allow the prosecution to resume. Anyone considering pretrial diversion should understand the conditions before agreeing to them.
What Happens After Successful Completion?
Successful completion can produce a major benefit: the prosecution has remained suspended rather than ending in a conviction, and the defendant may seek expungement of the eligible charge. The TBI specifically recognizes successful pretrial diversion as a path that can lead to an order of expungement under Tennessee law.
The expungement step matters. A defendant should make sure the diversion is formally completed and that the appropriate paperwork is entered so the criminal record is addressed correctly.
What If the Prosecutor Refuses Pretrial Diversion?
A prosecutor’s refusal does not necessarily end the legal analysis. Tennessee law provides a mechanism for judicial review of prosecutorial discretion in the pretrial-diversion process. Whether a challenge is realistic depends heavily on the facts, the reasons given, the statutory requirements, and the record presented in support of diversion.
This is one reason it can be important to build the diversion request carefully from the beginning. A well-documented application can help the prosecutor evaluate the request and can also create a clearer record if the decision later becomes disputed.
What Should I Gather for a Pretrial Diversion Request?
- Information about the current charge and the circumstances of the arrest.
- A complete criminal-history review, including prior dismissed or expunged cases.
- Employment records or a letter from an employer when helpful.
- Education records, professional licenses, or military history when relevant.
- Treatment, counseling, rehabilitation, or recovery documentation.
- Character references from people who can speak meaningfully about the defendant.
- Restitution information if the case involves an alleged financial loss.
- Proof of positive steps taken after the arrest.
Why Hire a Nashville Pretrial Diversion Lawyer?
A lawyer can first determine whether pretrial diversion is legally available and whether another resolution may be more appropriate. If diversion is a realistic option, the lawyer can organize the request, identify mitigating evidence, communicate with the district attorney’s office, negotiate proposed conditions, and help the client understand the consequences of the agreement.
Kevin Kennedy’s experience as a former prosecutor can be particularly useful in this setting because pretrial diversion depends heavily on prosecutorial judgment. Understanding how prosecutors assess criminal history, case facts, public-safety concerns, mitigation, and future risk can help shape a more focused and persuasive request.
Talk With a Nashville Pretrial Diversion Lawyer
If you have been charged with a crime in Nashville or Middle Tennessee and want to know whether pretrial diversion may be available, the first step is a careful review of the charge, your history, and the possible resolutions. Diversion can be a powerful tool, but eligibility and strategy are case-specific.
Call or text Kevin Kennedy Law Firm at 615-205-7311 for a free consultation with a Nashville pretrial diversion lawyer.