§45-82.40. Preprosecution or pretrial diversionary programs.

(a) The following words or phrases when used in this section shall mean:

(1) ACCUSATORY INSTRUMENT. A warrant of arrest, information, or grand jury indictment.

(2) DEFERRED PROSECUTION. The suspension of prosecution prior to indictment for a specified period of time upon the request of the accused with the consent of the district attorney.

(3) DIVERSIONARY SCREENING. The discretionary power of the district attorney to suspend, prior to the indictment, all formal prosecutorial proceedings against a person who has become involved in the criminal justice system as a defendant or an accused.

(4) NONCRIMINAL DISPOSITION. The dismissal of a criminal charge without prejudice to the state to reinstate criminal proceedings on motion of the district attorney as herein provided.

(5) PREPROSECUTION OR PRETRIAL DIVERSION. The imposition of conditions of behavior and conduct by the district attorney upon defendants charged with certain criminal offenses for a specified period of time prior to the formal prosecution or indictment.

(6) PROSECUTORIAL DISCRETION. The power of the district attorney, prior to indictment, to consider all circumstances of criminal proceedings and to determine whether any legal action is to be taken and if so taken, of what kind and degree and to what conclusion.

(b)(1) The District Attorney for the Seventh Judicial Circuit is specifically endowed with and shall retain all of his or her discretionary powers under the common law.

(2) The district attorney shall have the prosecutorial discretion as defined herein or any which he or she has under the common law, and may as a matter of such prosecutorial discretion establish a pretrial or a preprosecution diversionary or deferred prosecution program in all courts within the circuit.

(c) The district attorney shall utilize the discretion to screen or divert cases out of the criminal justice system when he or she feels that the advantages of the diversion, or preprosecution probation would outweigh the advantages of prosecution. Among the factors which may be considered by the district attorney are:

(1) Undue hardship caused to the accused or the victim.

(2) Excessive costs of prosecution in relation to the offense.

(3) Possible deterrent value of prosecution.

(4) Aid to other prosecution goals through nonprosecution.

(5) The expressed wish of the victim not to prosecute or to prosecute.

(6) Age of the case and of the defendant.

(7) The seriousness of the crime and the effect upon the public sense of security and justice if the offender were to be treated without criminal conviction.

(8) Whether the offender or the victim has medical, psychiatric, family, or vocational difficulties.

(9) Whether there is a reason to believe that the offender or the victim will benefit from and cooperate with a diversionary program.

(10) What the impact of criminal charges would be upon the victim, witnesses, the offender, and their families.

(11) The economic advantages of restitution of loss to the victim.

(d)(1) The presiding judge of the Criminal Division of the Seventh Judicial Circuit, after consultation with the other circuit judge of the circuit, shall appoint an advisory commission comprised of at least seven citizens of counties within the circuit which shall be known as the Citizens Advisory Commission on Prosecution. The commission shall serve at the pleasure of the appointing authority for the circuit, and shall make recommendations to the district attorney concerning which defendants shall be eligible or shall not be eligible for preprosecution or pretrial diversion based upon criteria established by the district attorney and the commission, and upon its consideration of factors enumerated in subsection (c).

(2) The commission shall serve without personal profit, but may be paid from the funds of the district attorney for actual expenses incurred in connection with its duties.

(3) At least one member shall be appointed upon the recommendation of the board of directors of the bar association of the counties comprising the circuit.

(e) Prior to or upon the issuance of an accusatory instrument other than an indictment charging a defendant with an offense other than an offense enumerated in subsection (g) the district attorney, upon the request of the defendant, may withhold prosecution or presentment to the grand jury thereon. The district attorney may then establish a preprosecution or pretrial diversionary program for a specified period of time.

(f) During that period, the district attorney may impose conditions upon the behavior and conduct of the defendant which assures the safety and well being of the community as well as that of the defendant. The conditions imposed by the district attorney shall include the following:

(1) Placing the person under the supervision of a designated person or organization or appointed agency agreeing to supervise the defendant.

(2) Requiring absolute noncriminal behavior on the part of the defendant.

(3) Requiring the defendant to conduct himself or herself in an honorable manner as a good member of the community, and not endanger the person, property rights, dignity, or morals of himself or herself or others.

(4) Requiring the defendant to comply with municipal, county, state, and federal laws, ordinances, and orders.

(5) Requiring the defendant to promptly reply to communication from the office of the district attorney, probation counselor, or other representative, or person designated by the district attorney or the probation department.

(6) Requiring the defendant to submit written reports in accordance with the instructions of the office of the district attorney or the probation department or other written or oral reports as required of the defendant by the office of the district attorney or probation department.

(7) Requiring the defendant to be absolutely truthful in the oral or written reports.

(8) Requiring the defendant to make every effort to obtain and hold a legitimate job and cooperate with the office of the district attorney in an effort which the office may make to obtain employment for the defendant.

(9) Requiring the defendant to report a loss of employment to the office of the district attorney or his or her probation counselor.

(10) Requiring the defendant to give notice of his or her arrest on any charge to the office of the district attorney or to his or her probation counselor.

(11) Requiring the defendant to support his or her dependents, if any, and assume toward them all moral and legal obligations.

(12) Requiring the defendant to pay restitution to the victim of the offense in an amount and upon terms determined by the district attorney.

(13) Requiring the defendant to pay a monthly supervision fee to the office of the district attorney in an amount equalling for monthly supervision fee paid by probationers and parolees to the Alabama Board of Pardons and Paroles, and the supervision fee monies shall be used to support the preprosecution diversionary program, or for other law enforcement purposes.

(g) Persons charged with the following criminal conduct shall not be eligible for participation in any preprosecution diversionary program instituted under the provisions of this section:

(1) Kidnapping.

(2) Arson.

(3) Extortion.

(4) Bribery by or of a public official.

(5) Burglary in the first degree.

(6) Illegal use of dynamite or other explosives.

(7) Escape.

(8) Homicides.

(9) Assault in the first degree.

(10) Forcible sex crimes.

(11) Robbery.

(12) Sale of controlled substances.

(13) Sexual offenses involving a child.

(14) Violation of public officials' duty and obligation.

(15) Introduction of drugs into a penal or correctional institution.

(16) Capital offense.

(h) Prior to the issuance of an indictment by a grand jury, the responsibility and authority for the decision to screen or divert cases, or to refuse to screen or divert particular cases, shall rest within the sole judgment and discretion of the district attorney for the circuit. After the issuance of an indictment, a criminal case shall not be diverted or screened without the express approval and concurrence of the presiding judge of the circuit or a circuit court judge designated by him or her for such purposes, and the approval and acceptance into the program shall not require the defendant to enter a plea or change a prior plea.

(i) A defendant voluntarily participating in the program shall have the right to:

(1) Insist on criminal prosecution at any time the prosecution for the offense for which he or she is charged is pending, and to have a circuit court judge determine whether pressure or coercion was applied to the defendant to accept noncriminal disposition.

(2) The right of counsel of his or her choosing or if indigent, court appointed counsel during all phases of the diversionary or preprosecution probationary proceedings, unless the right to counsel is knowingly and voluntarily waived by the accused.

(j) In conducting the program, the district attorney may:

(1) Insist at any point upon the reinitiation of criminal proceedings, when, in his or her judgment, the action would be desirable.

(2) Require the services of available probation workers within the county comprising the circuit for investigation reports for the purposes of determining eligibility of persons for participation in the pretrial probation.

(k) After the completion of the preprosecution or pretrial diversionary period and the conditions imposed upon the defendant to the satisfaction of the district attorney, defendants participating in the programs shall be entitled to a noncriminal disposition of charges against him or her which may be done by the appropriate judge entering on a docket sheet, "Diverted and Dismissed." The noncriminal disposition may, in the discretion of the district attorney, be without prejudice to the State of Alabama for the reinstitution of criminal proceedings on the diverted criminal charges upon any subsequent criminal activity on the part of the accused.

(l) At the request of the defendant, the district attorney for the circuit may file in the circuit courts of the circuit or elsewhere as necessary, petitions seeking to expunge or purge all records against an accused for the diverted offense, provided, however, the accused has satisfactorily performed the conditions of his or her preprosecution probation, if any. The circuit courts of the circuit are empowered to issue whatever process necessary to grant the petitions.

(m) The county commission for the circuit shall in its discretion expend monies from the general fund of the county for the payment of any or all of the costs of the program.

(n) The district attorney for the circuit may, in his or her discretion, use or expend monies from the District Attorney's Fund for any or all of the costs of the program.

(Act 93-539, p. 886, §§1-14.)