Is There a Way Out of This Without a Conviction?

You have a court date, and the thing you keep coming back to is not the penalty. It is the record.

Whether this follows you into every job application, every apartment, every background check for the rest of your life.

There is a path in Massachusetts that ends with the case dismissed and nothing on your record, and it is decided early — often at your first appearance.

If your court date is coming, call (978) 969-2890. It is a free consultation, and the timing on this matters.

Most people who call us about this are not asking whether they can beat the case. They are asking who is going to find out.

That is a reasonable thing to be most afraid of, and it is the question the rest of this page is really about.

If you are a parent or a spouse calling about someone else, the consultation is free for you too.

Key Information: What You Need to Know

What diversion is: A pause in the criminal case while you complete a program. If you complete it, the judge may dismiss the charges.

Where it lives in the law: G.L. c. 276A, the District Court pretrial diversion statute. It applies in the District Courts and the Boston Municipal Court.

When it is decided: Early. Probation screens defendants so the judge can consider eligibility at arraignment, and the assessment runs on a 14-day continuance.

Who qualifies: Broadly, someone with no prior adult conviction, no pending cases or outstanding warrants, charged with an offense the District Court can finally dispose of, who a program says would benefit from it.

What it is not: It is not a plea, and it is not the same thing as a court-ordered treatment commitment, which is a separate civil process.

What to do now: Raise it before your first appearance, not after. Call (978) 969-2890.

What Diversion Actually Is

Under G.L. c. 276A, a District Court judge can send a qualifying defendant to a program of community supervision and services instead of letting the criminal case run its ordinary course.

The criminal proceedings are stayed — paused — for 90 days while the person does what the plan of services requires.

A program under this chapter is not one fixed thing. The statute describes assessment across education, vocational training, job placement, mental and physical health, and family and social services, and a plan built out of those.

In practice that can mean counseling, substance use treatment, classes, job or school requirements, or a combination.

The point, and the reason people care: if it works, the case can end in dismissal rather than in a conviction.

Who Can Be Diverted

Section 2 sets the basic eligibility, and it is narrower than people hope. The court can divert a person who:

• Is charged with an offense for which a term of imprisonment may be imposed, and over which the District Court can exercise final jurisdiction
• Has not previously been convicted of a violation of the law of Massachusetts, another state, or the United States in any criminal court proceeding after turning 18 — with an exception for traffic violations carrying no possible term of imprisonment
• Has no outstanding warrants, continuances, appeals, or criminal cases pending anywhere
• Has received a recommendation from a program that they would benefit from participating in it

That last one is worth sitting with. Eligibility on paper is not enough.

A program has to assess the person and say, in writing, that this would do them good. That is not a formality, and it is a place where preparation matters.

The Charges That Are Off the Table

Section 4 takes certain cases out of the chapter. A person cannot be diverted if the charge:

• Is one of the offenses listed in the second sentence of G.L. c. 277, § 70C
• Carries a possible penalty of more than five years of incarceration, or a mandatory minimum
• Is an offense that may not be continued without a finding or placed on file

The same section then carves exceptions back out. Diversion remains possible for a charge under the assault and battery provision at G.L. c. 265, § 13A(a), and for charges under G.L. c. 268, §§ 13A and 13C.

And there is a specific provision for a veteran or a person on active service charged with a first offense of operating under the influence under G.L. c. 90, § 24, who has never before been arrested for or charged with that offense anywhere, and who has been clinically diagnosed with a traumatic brain injury, a substance use disorder, or a serious mental illness connected to their service.

In that situation the court considers the prosecutor's position in deciding whether to divert.

One caution that rarely appears anywhere else, and that comes straight out of the same section: diverting a District Court charge does not prevent a later indictment on the same charges in the Superior Court.

Diversion is not a guarantee that a case is over forever, and anyone telling you otherwise has not read the statute.

How It Actually Happens

The sequence is set by the statute and it is short.

Screening. Probation, while gathering the usual information, also screens defendants so the judge can consider eligibility for diversion at arraignment.

A 14-day continuance. The case is put over roughly two weeks so a program can do an assessment.

The report. At the end of that period the program director gives the court a written assessment: what they found, whether the person would benefit from diversion, and, if so, a plan of services.

Input and decision. The judge gives the prosecution, and any victim, an opportunity to be heard on diversion, and then makes the final determination on eligibility.

There is no appeal from that determination — which is precisely why the work goes in before it, not after.

Consent in writing. No stay is granted unless the defendant consents in writing to the terms and knowingly waives the right to a speedy trial, on a court-approved form, with the advice of counsel.

That waiver is real, and it should be explained to you properly before you sign anything.

The stay runs 90 days. If the judge instead concludes that the interest of justice calls for a hearing of the facts, the case may be continued without a finding for 90 days.

What You Say During the Process Cannot Be Used Against You

This is the part people are most afraid of, and the statute answers it directly.

Asking for an assessment, deciding not to enter a program, a program's conclusion that you would not benefit, and any statement you make during the assessment are all inadmissible against you in a criminal proceeding.

Neither your consent to the stay nor anything you do or say in fulfilling its terms can be used as an admission if the stay is later terminated and the case resumes.

And no statement or record made during the assessment or the stay may be disclosed to a prosecutor or other law enforcement officer in connection with the charges against you or a codefendant.

In plain terms: being honest with the assessor about what is going on in your life is not handing the Commonwealth a confession.

That protection is in the statute for a reason, and it is what makes an honest assessment possible.

If You Finish — and If You Don't

At the end of the 90 days, the program director reports to the court either that you completed the program or that you need more time.

If the report shows successful completion, the judge may dismiss the original charges.

If it recommends an extension, the judge can dismiss anyway, extend the stay or the continuance without a finding by up to another 90 days, or resume the criminal proceedings.

While the stay is running, the program reports on your progress periodically, and reports any violation of the conditions or any new arrest immediately. If you violate a condition or pick up a new charge, the judge can bring you back to court.

You get an opportunity to be heard. If the judge finds a violation or a new charge, the stay can be terminated and the Commonwealth can proceed on the original case.

So the honest summary is this: diversion is a real path to a dismissal, and it is also a set of obligations that has to be taken seriously for three months or more.

It is not the easy option. It is often the right one.

If You Are a Veteran or on Active Duty

The statute treats military service separately, and more generously.

Probation is required to use best efforts, at or before arraignment, to confirm whether a defendant is a veteran, on active service, or has a history of military service.

The District Courts and the Boston Municipal Court may divert such a person, regardless of age, who is charged with an offense for which imprisonment may be imposed, who has no prior adult conviction and no pending cases or outstanding warrants, and who has a program's recommendation.

There is also a 14-day continuance available at arraignment specifically so a veteran can be assessed by the United States Department of Veterans Affairs, the Massachusetts Department of Veterans' Services, or another agency with real knowledge of veterans' affairs, and so the court can be told what treatment options actually exist.

Where there is symptomatology suggestive of mental illness, a qualified psychiatrist, clinical psychologist, or physician provides a written report to assist the court with sentencing or diversion.

We take this seriously in our practice. A nervous system calibrated by service to treat institutional authority as a threat does not present well in a courtroom, and it is often read as attitude by people who should know better.

It is worth having someone in the room who understands the difference.

Court-Ordered Treatment Is Not Diversion

Families often arrive having heard about "sectioning" someone, and assume it is a way to resolve a criminal case. It is not. It is a separate civil process, and it is worth being clear about.

Under G.L. c. 123, § 35, a police officer, physician, spouse, blood relative, guardian, or court official may petition a District Court or the Juvenile Court for an order committing a person they believe has an alcohol or substance use disorder.

The court schedules a hearing immediately, the person has the right to counsel and to present their own expert or other testimony, counsel is appointed if they are indigent, and the court orders an examination.

If, after a hearing that includes expert testimony, the court finds the person has an alcohol or substance use disorder and that there is a likelihood of serious harm as a result, it may commit them for up to 90 days to a facility designated by the Department of Public Health.

Case management is available for up to a year afterward, and the necessity of the commitment is reviewed at days 30, 45, 60, and 75. Release can come earlier if the superintendent determines in writing that release will not result in a likelihood of serious harm.

Two things families should know before filing. First, it does nothing to the criminal case; the charges continue.

Second, a commitment under this section is transmitted to the Department of Criminal Justice Information Services and the person is barred from being issued a firearm identification card or a license to carry, with a petition for relief available no sooner than five years later.

None of that means it is the wrong decision. Sometimes it is the decision that keeps someone alive.

It should be made with information, though, and not in the belief that it solves the court case.

Specialty Court Sessions

There is a third thing people lump in with diversion, and it is worth separating too.

Massachusetts has specialty courts, which the Trial Court is careful to explain are not separate courts at all — they are specialized sessions inside certain District, Boston Municipal, Juvenile, and Probate and Family Courts, held at a set time before a designated judge with a team behind them.

They include Recovery Courts, formerly called Drug Courts, which address substance use disorder and co-occurring mental illness; Veterans Treatment Courts; and Mental Health Courts. They provide intensive supervision and required treatment.

They are demanding. For the right person they are also the most useful thing the court system does.

Whether a specialty session is an option in your case is a question for your lawyer and your probation officer. It depends on the court, the charge, and you.

What We Would Do With This

Our view is that legal problems do not exist in isolation. The charge is usually downstream of something — a substance that got out of hand, an illness nobody treated, a stretch of life that came apart.

A program recommendation is not a box to tick. It works when the plan fits the actual person.

That is why we keep a vetted network of treatment providers, counselors, evaluators, and programs, so that a specific referral can be made at the moment it is needed rather than a vague gesture toward a category of service.

Getting someone assessed and engaged before the first court date is not only good for the case. It is usually good for the person, whatever the case does.

If you are already dealing with substance use or mental health issues alongside this charge, we have written about what treatment can mean in a criminal case and about going through the system with an addiction.

Frequently Asked Questions

Will the charge show up on my record if I get diversion?

If you complete the program and the judge dismisses the charges, there is no conviction. What appears on a CORI record depends on when and how the case entered the system, which is one of the reasons raising diversion early matters so much.

Ask your lawyer specifically what your record will show, and get a straight answer before you agree to anything.

Is it too late if I have already been arraigned?

Raise it anyway, immediately. The statute builds screening and the judge's consideration around arraignment, so the earlier the better by a wide margin.

What remains available in your particular case is a question to put to a lawyer today rather than to assume.

Can the prosecutor block it?

The judge makes the final determination, after giving the prosecution and any victim an opportunity to be heard. For a veteran or active service member being diverted on a first offense under the operating under the influence statute, the court specifically considers the prosecution's opinion.

There is no appeal from the final determination either way.

What if I do not finish the program?

The program reports the violation, the court can bring you back, and you have an opportunity to be heard. If the judge finds a violation or a new charge, the stay can be terminated and the case resumes where it left off.

What you said during the assessment still cannot be used against you.

Does a prior case from when I was young disqualify me?

The statute looks at convictions in any criminal court proceeding after you turned 18, other than traffic violations with no possible term of imprisonment, and at whether anything is currently pending or outstanding.

The details of an old case matter, so bring whatever paperwork you still have.

Contact Ernest Stone Today

Diversion is decided early, once, and without an appeal. If there is a version of this case that ends without a conviction, the work to get there starts before your first court date.

Call (978) 969-2890 for a free consultation. The consultation is free whether you are the person charged or a family member calling about them, and someone answers the phone at any hour.

We represent good people who have had a really bad day.

H. Ernest Stone, Attorney PC

900 Cummings Center, Suite 321-U

Beverly, MA 01915

Phone: (978) 969-2890

Email: es@herneststone.com

We'll Get You Through the Storm

A charge is frightening, and the fear of who will find out is usually worse than the charge itself. You do not have to work out on your own which doors are still open.

With more than 30 years in Massachusetts courtrooms, we know which ones tend to be, and we will tell you honestly what we think — including when the answer is not the one you were hoping for.

No lawyer can promise you an outcome, and you should be wary of any who does.

Do not wait. Call (978) 969-2890 today.