Some charged persons may apply for pretrial diversion, while several offense types are excluded or can be made ineligible by the district attorney.
(a) A person charged with a criminal offense specified in subsection (b) whose jurisdiction is in the circuit court or district court in a circuit in which a pretrial diversion program has been created pursuant to this division may apply to the district attorney of the circuit for admittance to the program. (b) A person charged with any of the following offenses may apply for the pretrial diversion program: (1) A drug offense, excluding sale of a controlled substance as provided in Section 13A-12-211, trafficking in controlled substances or cannabis as provided in Section 13A-12-231, manufacturing controlled substances in the first degree as provided in Section 13A-12-218, or trafficking in an analog controlled substance. (2) A property offense. (3) An offense that does not involve serious physical injury, death, a victim under the age of 14, or a sex offense involving forcible compulsion or incapacity of a victim. (4) A misdemeanor or violation, except the district attorney may determine that a person charged with a misdemeanor offense or violation is ineligible to apply for the program if it is in the best interest of the victim, the offender, the community, or justice. (5) A traffic or conservation offense, except that a holder of a commercial driver’s license, an operator of a commercial motor vehicle, or a commercial driver learner permit holder who is charged with a violation of a traffic law in this state shall not be eligible for a deferred prosecution program, diversion program, or any deferred imposition of judgment program pursuant to Section 32-6-49.23. (c) The following offenses are ineligible for consideration for the pretrial diversion program: (1) Any Class A felony or capital offense. (2) Any offense involving serious physical injury to a person. (3) An offense involving violence in which the victim was a child under 14 years of age, a law enforcement officer, a school officer, a correctional officer, active duty military personnel of the United States military, or a person over the age of 65. (4) Any offense involving death. (5) A person deemed by the district attorney to be a threat to the safety or well-being of the community. (6) Bribery of a government or public official. (7) Any offense wherein the offender is a public official and the charge is related to his or her capacity as a public official. (8) Abduction or kidnapping. (9) Any sex offense involving forcible compulsion or incapacity. (10) A violation of Section 13A-12-191, et seq., or Section 13A-6-111, et seq. (11) Any violation of Section 13A-10-120, et seq. (12) Perjury in any degree, as defined in Section 13A-10-100, et seq. (13) Any crime motivated by a victim’s race, color, religion, national origin, ethnicity, or physical or mental disability, as defined in Section 13A-5-13. (d) As new offenses are created by the Legislature or new criminal acts trend, the Office of Prosecution Services may promulgate rules to include additional disqualifying offenses or eligibility to participate in any pretrial diversion program operating under this division.