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Virginia’s Alternates to Incarceration for Drug-Related Charges

Interviewer: What are some of Virginia’s pretrial diversion programs? Are they available to your clients? What are they and how they work with drug cases?

Brian Geno: In Virginia, they don’t actually call it a diversion program but that’s what it’s called in many states. It’s a way to get the case dismissed at trial; it’s your first defense.

There Are Programs Available for First Offenders Charged with Drug Possession

For example, District of Columbia has one called the diversion program but it really is the same thing as what many other states have. It comes out of the Virginia Code called Virginia Code 18.2-251. That code section prescribes certain things that you have to do if it’s your first drug offense and it’s for possession only. It’s not for distribution, possession only.

You May Qualify to Absorb the Costs Associated with Treatment and Generated by the Court, in Lieu of a Jail Sentence

If you take substance abuse assessment for the state, that serves as another alternate. Another one is you’d have to pay all of the court costs and costs associated with the program itself. If they want you to do a substance abuse evaluation and there’s a fee for it, then you have to pay for that. If there’s drug counseling, you have to pay for that.

Whatever the costs are, you’d have to pay for that. Next one is you’d have to successfully complete treatment or education. If they have a one session class and you complete it, great. If it’s a 12 session class, then that’s what you have to do. If it’s a 50 session class, you have to attend every one.

You Must Successfully Fulfill All the Requirements of a Program

I’ve had a client before who is required to go into in-patient treatment for drugs as part of this and it was a very big hustle for him. But that was what probation required and that’s what this code requires.

You Usually Must Abstain from Drug and Alcohol Use and Undergo Testing

Another requirement for the diversion and I’ll call it diversion program for clarity, is to remain drug and alcohol free during the period of probation. If it’s for a year, probation will monitor you that whole time. They could ask you to come and take a test. Usually it’s a urine test and they can require you to submit to those for the whole period you’re on probation.

You Must Remain Employed and Complete Community Service

Another requirement would be that you have to make reasonable efforts to get and keep a job. If you’re in school, that’s considered the job, but if you’re not, they want you to get and keep a job. In other words, stay busy.

There’s two other requirements. The other one is to do community service. If it’s a felony case that you’re getting this program for, then they want 100 hours of community service. If it’s a misdemeanor, they’ll take 24 hours of community service and then finally they want you to be finger printed so that anywhere in the country they’ll know that you have a record somewhere and they can find it.

OAR: Options for Repeat Offenders

Those are the requirements for that Virginia diversion program. There are some other programs which are not offered by statute but they offered by the court and by probation. In the Northern Virginia area, we have a program called OAR which is the Offender, Aid, and Restoration program.

In that program, they may have counseling sessions. They may have treatment. They have a number of things like AA, Alcoholics Anonymous may be required or Narcotics Anonymous may be required. Those will be all offered through the OAR.

The reason why they would use OAR would be because you’re not eligible for that diversion program anymore because it’s not your first defense. They have other programs like that that are increasingly more restrictive. You have less and less options and they offer something for someone who’s really gotten themselves in quite a bit of trouble or maybe they’ve done it a few times.

In Virginia’s Diversion Program, the Charges Are Ultimately Dismissed; in the OAR Program, That Is an Option at the State’s Discretion

The first one, the diversion program, that one by statue results in the dismissal of the case. Using the OAR, the second one that I mentioned, that might result in a dismissal if everyone has agreed to that in advance. If you’re looking for a diversion program, the one under the statute is the best one for you.

To Keep Your Record Clear, Your Attorney May Advise You to Have a Trial First and then Consider the Diversion Program

I personally don’t think it’s a good idea to go in to the case with the idea that you’re going to take that diversion program. This is because at the end, when they dismiss it, it leaves a telltale sign and people who are doing a background check on you can see that you were charged with a drug crime and that you somehow seemed to wriggle your way out of it—but it’s a clear signal that you were charged with and probably would have been convicted of possession of a drug.

If there’s any other way to handle it like going to trial—then by all means, do that rather than the 251 program. With the 251 program, even if you choose to go to trial and lose, you’re still eligible for the 251 program, the diversion program. It really begs the question why shouldn’t you try the trial first and if you lose, then opt for the diversion program.