Understanding Probation Violations in Tennessee

Probation is often seen as a lenient alternative to incarceration, offering individuals the chance to integrate back into society under specific conditions. However, probation comes with a set of stringent requirements that must be followed meticulously. When these conditions are violated, the consequences can be severe, potentially resulting in the revocation of probation and the imposition of the original sentence. To comprehend what constitutes a probation violation, it is essential to explore the types of conditions typically imposed, common violations, and the legal process that follows a violation.

Conditions of Probation

Probation conditions are tailored to each individual case and can vary significantly based on the nature of the offense, the individual’s criminal history, and other relevant factors. Generally, probation conditions can be categorized into two types: standard conditions and special conditions. Standard conditions are those that apply to almost all individuals on probation, such as reporting regularly to a probation officer, maintaining employment, and not committing any new crimes. Special conditions are specific to the individual’s case and might include requirements such as attending counseling sessions, undergoing drug testing, or paying restitution to victims. Probation is typically granted to first-time offenders or those convicted of less severe crimes. It serves as a second chance, offering the opportunity to demonstrate rehabilitation and compliance with the law. The court imposes specific conditions tailored to each case, which the probationer must adhere to. These conditions often include regularly meeting with a probation officer, maintaining employment or attending school, refraining from criminal activity, and sometimes attending counseling or rehabilitation programs. Additional requirements might include paying fines, performing community service, or adhering to curfews. The conditions of probation are designed to promote positive behavior changes and reduce the likelihood of reoffending. They provide a framework for the probationer to rebuild their life while remaining under the supervision of the legal system. However, this framework can be stringent, and even minor infractions can be considered violations, leading to significant legal repercussions.

Common Probation Violations

Violations of probation conditions can occur in many forms. Some of the most common violations include failing to report to the probation officer as required, failing to attend mandatory counseling or treatment programs, testing positive for drugs or alcohol, committing new criminal offenses, and not paying fines or restitution. Each of these violations undermines the purpose of probation, which is to rehabilitate the individual while ensuring public safety. Failing to report to the probation officer is a serious violation because it indicates a lack of compliance and accountability. Regular reporting allows the probation officer to monitor the individual’s progress and address any issues promptly. Missing these appointments without a valid reason can lead to a violation notice. Mandatory counseling or treatment programs are often required to address underlying issues such as substance abuse or mental health problems. Failing to attend these programs not only violates probation conditions but also hinders the individual’s rehabilitation process. Positive drug or alcohol tests are clear indicators of non-compliance with substance abuse conditions and are taken very seriously by the courts. Committing new criminal offenses while on probation is perhaps the most severe violation. It demonstrates a disregard for the law and the opportunity given to avoid incarceration. Non-payment of fines or restitution can also lead to a violation notice, especially if the individual has the means to pay but chooses not to. This type of violation reflects negatively on the individual’s willingness to take responsibility for their actions. However, not everyone placed on probation will successfully complete their sentence. According to the Sycamore Institute, approximately 40% of individuals entering Tennessee’s state prisoner population were those who violated their probation, parole, or other community corrections sentences. When an individual is found guilty of violating their probation, they will often be ordered by the court to serve the rest of their sentence, if not the entirety of it, in prison. This means that if you were sentenced to serve a year on probation and completed 11 months of your probation successfully, but were found in violation before you could complete that last month, you may be facing up to a year in prison. There are also other punishments that courts may impose for probation violations, such as restarting the term of probation or imposing more restrictions during the probationary period. With these factors in mind, let’s look at some of the common ways individuals violate the terms of their probation. This knowledge will hopefully help you fulfill your court-ordered requirements and make it through probation successfully. Failing a Drug Test Many, if not most, probation sentences require individuals that have been convicted to steer clear of all illegal drugs – and at times, even alcohol. This will be enforced by the imposition of random drug screenings, or if necessary, a transdermal alcohol monitor. If you’re required to submit to drug screening and the test flags positive for an illicit substance, you will be found in violation of your probation. Failing to Complete Community Service or Counseling Courts often order individuals convicted of crimes to complete community service and/or counseling as a form of rehabilitation. For example, if you were convicted of a crime as a result of addiction, the court will likely order you to complete addiction counseling. You will need to see this counseling through and submit proof of completion either to your probation officer or the court, otherwise you may be charged for violating your probation. If you’re unsure about the window of time you have to complete your counseling or community service, call your probation officer or the clerk of the court you were sentenced in. Often, individuals have until the end of their sentence to meet these requirements, but you may have to do so sooner. Violating Residency Requirements A considerable number of people violate the residency requirements of their probation without even realizing it. Courts will often impose geographic limitations on probationers and parolees so that their supervising officer can keep an eye on them. Typically, this means residing within the county you were convicted in, and remaining within a certain range of that county. If you need to travel for work or personal reasons, you’ll need to request written permission from your probation officer. Furthermore, if you end up needing to move, you may have to go back to court to have your probation order amended. Failing to Pay Court-ordered Fees and Fines At the end of a court case, the court will often impose fines as part of a sentence and fees to cover court costs. If an individual fails to pay these, they will be in violation of their probation.  Make sure to pay your fees and fines directly to the court, unless otherwise ordered. You may also be ordered to pay restitution, in which case the court should inform you where to submit payment. If you will not be able to pay the full amount in time, you may be able to pay in installments. Again, talk to your probation officer and the court clerk to work out a payment plan. Catching New Charges This may seem obvious, but it’s worth stating: if you’re arrested again, you will probably be found in violation of your probation. New arrests are often taken as a sign that a probationer is not rehabilitating while on probation and may result in them being sent to jail. However, you may be able to avoid this if you’re able to have the new charge dismissed. Not Keeping Current on Child Support Yes, a judge can order you to stay current on child support payments as a condition of your probation. This is typically referred to as a duty to fulfill “family responsibilities.” If you fail to make child support payments in time, you may be found in violation of your probation. Of course, going to prison doesn’t make it any easier to pay off your child support debts. Possessing a Firearm Finally, you may be ordered not to possess a firearm or other weapons while you complete your probation. This is a requirement typically imposed on those convicted of violent crimes, such as domestic assault. If a probation officer observes a firearm in their probationer’s home or on their person, they have the authority to remove the weapon and charge said probationer with violating the terms of their sentence. Just because you’ve been placed on probation does not mean you have to sell all your guns, though. You can arrange for them to be transferred to a trusted friend or relative, or to temporarily be in the custody of your probation officer. Once you’ve successfully completed your probation, you should be able to regain access to your firearms.

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The Legal Process Following a Probation Violation

When a probation violation occurs, the legal process can be swift and unforgiving. The probation officer typically initiates the process by filing a violation report with the court. This report details the nature of the violation and provides evidence supporting the claim. The individual on probation is then notified of the alleged violation and a hearing is scheduled. During the probation violation hearing, the court will review the evidence presented by the probation officer and the defense. Unlike a criminal trial, the standard of proof in a probation violation hearing is lower; the prosecution only needs to prove the violation by a preponderance of the evidence, rather than beyond a reasonable doubt. This means that it only needs to be more likely than not that the violation occurred. If the court finds that a violation has occurred, it has several options for addressing the situation. The judge can choose to continue the probation with the same conditions, modify the conditions to be more stringent, or revoke the probation entirely and impose the original sentence. The severity of the violation, the individual’s history of compliance, and other mitigating or aggravating factors will influence the judge’s decision.

Garth Best was extremely helpful in my case. He explored and explained everything to me clearly and never stopped checking out every option. I am absolutely grateful I chose him as my attorney. Best and Brock are a great choice for representation. Thanks again.

- Jeremy Forgey

Matt Brock did an outstanding job with my case. Very thorough and knowledgeable attorney, highly recommended. Its very obvious through my interactions with him that he has the experience and knowledge to win in court. I will not go anywhere else. Great job, much appreciated.

- Chris Griffin

 

Defenses Against Probation Violations

Individuals accused of probation violations have the right to defend themselves during the hearing. Common defenses include demonstrating that the violation was unintentional or that it occurred due to circumstances beyond the individual’s control. For example, if the individual missed a probation meeting due to a medical emergency or was unable to attend a counseling session because of transportation issues, these factors might be considered by the court. Another defense is to challenge the accuracy of the evidence presented. This can be particularly relevant in cases involving drug tests, where false positives can occur. The defense might also argue that the probation conditions were unclear or that the individual made a genuine effort to comply but faced insurmountable obstacles.

The Role of a Probation Officer

Probation officers play a crucial role in monitoring compliance with probation conditions and identifying violations. They are responsible for conducting regular check-ins, overseeing mandatory programs, and providing support to individuals on probation. When a violation occurs, the probation officer has the discretion to decide whether to issue a warning or to file a violation report with the court. This decision is often based on the nature and severity of the violation, as well as the individual’s overall compliance history. Probation officers are also instrumental in helping individuals navigate the challenges of probation. They can provide resources for job placement, substance abuse treatment, and other support services. By fostering a positive relationship with the probation officer, individuals on probation can increase their chances of successfully completing their probation term.

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The Consequences of Probation Violations

The consequences of probation violations can be severe and far-reaching. If probation is revoked, the individual may be required to serve the original sentence, which could involve jail or prison time. Even if probation is not revoked, additional conditions may be imposed, such as extended probation periods, more frequent reporting requirements, or mandatory participation in additional treatment programs. A probation violation can also have long-term consequences beyond the immediate legal ramifications. It can result in a permanent mark on the individual’s criminal record, making it more difficult to find employment, secure housing, or obtain loans. Additionally, the stress and uncertainty associated with a probation violation can take a significant toll on the individual’s mental and emotional well-being.

How to Avoid Probation Violations

Avoiding probation violations requires a proactive approach and a commitment to compliance. Individuals on probation should familiarize themselves thoroughly with their probation conditions and seek clarification from their probation officer if any terms are unclear. Maintaining open and honest communication with the probation officer is crucial, as it allows for the early identification and resolution of potential issues. Attending all required meetings, counseling sessions, and treatment programs is essential for demonstrating compliance. If unforeseen circumstances arise, such as illness or transportation problems, it is important to inform the probation officer as soon as possible and provide documentation if necessary. Staying away from situations that could lead to new criminal offenses is another key strategy. This might involve avoiding certain individuals, places, or activities that could increase the risk of reoffending. Seeking support from family, friends, or community organizations can also help individuals stay on track and avoid violations.

What to Do if You Receive a Warrant for Your Arrest

Receiving a warrant for your arrest can be a frightening and overwhelming experience. You may feel confused and uncertain about what steps to take next. At Best & Brock, we understand the emotional toll that this situation can have on your life. It is important to know that you are not alone, and there are legal options available to help you navigate this process. In this blog, we will guide you through the steps to take if you find yourself in this difficult situation and explain how we can assist you in getting the best possible outcome for your case.

Understanding What a Warrant Is

A warrant is a legal document that gives law enforcement officers the authority to arrest you. It is typically issued by a judge or magistrate based on probable cause that you have committed a crime. There are different types of warrants, such as arrest warrants and search warrants. If you have received an arrest warrant, it means law enforcement has probable cause to believe you have committed an offense and they have the legal right to arrest you. Understanding this is important because it helps you realize that a warrant is not a conviction but a step in the legal process.

The Emotional Impact of Receiving a Warrant

If you have received a warrant for your arrest, it is normal to feel anxious, scared, or even angry. You might wonder if there is anything you can do to fix the situation. It is important to recognize that feeling overwhelmed is a natural reaction, but it is also critical to take action quickly. The sooner you address the warrant, the better your chances are of minimizing the impact it will have on your life.

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Do Not Ignore the Warrant

One of the worst things you can do when facing an arrest warrant is ignore it. Ignoring the warrant will not make it go away, and it can lead to more serious consequences down the road. If law enforcement is able to locate you, they can arrest you and bring you to jail. In addition, failing to address the warrant can result in additional charges or penalties. It is important to take proactive steps to address the situation as soon as possible.

Contact an Attorney for Assistance

The first step you should take after receiving a warrant is to contact an experienced attorney. You do not have to go through this alone. A qualified lawyer can help you understand the charges against you, assess the evidence, and guide you through the next steps. In some cases, your attorney can negotiate with law enforcement to arrange a voluntary surrender, which may help reduce the likelihood of being arrested in a dramatic or embarrassing situation. Having an attorney by your side will give you the confidence to navigate the legal system and make informed decisions.

Garth Best was extremely helpful in my case. He explored and explained everything to me clearly and never stopped checking out every option. I am absolutely grateful I chose him as my attorney. Best and Brock are a great choice for representation. Thanks again.

- Jeremy Forgey

Matt Brock did an outstanding job with my case. Very thorough and knowledgeable attorney, highly recommended. Its very obvious through my interactions with him that he has the experience and knowledge to win in court. I will not go anywhere else. Great job, much appreciated.

- Chris Griffin

 

Learn About Your Rights

When facing a warrant, it is important to know your rights. You have the right to remain silent and not to speak with law enforcement without an attorney present. You also have the right to bail, depending on the nature of the offense. Your attorney can explain your rights in detail and advise you on how to protect them. It is crucial that you understand what protections you have under the law so you can make informed decisions as you move forward.

Determine Whether You Are Facing Charges

If you have received a warrant, it is essential to determine what charges you are facing. In many cases, a warrant is issued based on an alleged crime, but you may not fully understand the nature of the charges until you meet with your attorney. Your lawyer will be able to investigate the case, review the evidence, and let you know what charges you could be facing. This information will help you understand the seriousness of the situation and allow you to work with your attorney to develop a defense strategy.

Consider Your Options for Bail

In some cases, you may be eligible for bail after a warrant is issued for your arrest. Bail is a payment made to the court to ensure that you appear at future hearings. If you are granted bail, you will be released from jail while awaiting trial. However, bail is not always available for every case, and the amount may vary depending on the severity of the charges. Your attorney will be able to guide you through the bail process and help you determine if this is an option for you.

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Prepare for the Arrest Process

If you are arrested after a warrant is issued, it is helpful to know what to expect during the arrest process. Law enforcement officers will take you into custody and may search you for any weapons or contraband. You will then be taken to jail, where you will be booked and fingerprinted. Afterward, you will have the opportunity to appear before a judge for an initial court hearing. At this hearing, the judge will explain the charges against you and determine whether you will be granted bail or released on your own recognizance.

Work With Your Attorney to Build a Defense

Once you have been arrested and charged, your attorney will help you build a defense against the charges. There are several potential defenses that may apply depending on the circumstances of your case. For example, you may be able to challenge the evidence presented against you or argue that the arrest was made without proper cause. Your attorney will work with you to gather evidence, review the facts, and develop a strategy that gives you the best chance of success in court.

Avoid Making Statements Without Legal Representation

One of the most important pieces of advice when facing a warrant is to avoid making statements to law enforcement without an attorney present. Anything you say can be used against you in court, and it is critical to have a lawyer by your side who can guide you through the process. Your attorney will ensure that your rights are protected and will advise you on how to handle any questions from law enforcement.

Understanding the Consequences of a Warrant

The consequences of receiving a warrant can vary depending on the nature of the charges and your criminal history. In some cases, a warrant may result in immediate arrest, while in others, it may lead to fines or other penalties. Additionally, having a warrant on your record can impact your future, including your ability to find employment or housing. It is important to take the situation seriously and work with an attorney to minimize any negative consequences. If you have received a warrant for your arrest in Tennessee, it is important to act quickly and decisively. Working with an experienced attorney can help ensure that your case is handled properly and that your rights are protected throughout the legal process. At Best & Brock, we understand the stress and anxiety that come with receiving a warrant, and we are here to help you every step of the way. Whether you are facing a minor offense or a more serious charge, we can provide the guidance and support you need to achieve the best possible outcome in your case.

Am I eligible to have my criminal record expunged?

We understand how it goes – you made a mistake, whether it be theft under $1000 or simple possession of drugs. Now, you’re looking to apply for jobs, housing, higher education, or other opportunities, and you’re worried about charges showing up on your criminal record. Thankfully, Tennessee Code § 40-32-101 provides for the destruction of public records recording a criminal offense, or in other words, expunction. Expunction is defined as the removal of a conviction from a person’s criminal record, but you can also have charges you were not convicted of destroyed from public records. If your charges are eligible for expungement, it is an amazing opportunity to wipe your slate clean and start anew. However, not all individuals and not all charges are eligible for expungement. Let’s break down expungement eligibility as applied in Tennessee’s expunction program. If all of your charges were dismissed, you may petition the court that holds jurisdiction over your case to destroy any and all public records of the charges. Likewise, if your case went to trial and you were acquitted (found “not guilty”) of all charges, the judge should ask you in court whether you would like to have all public records associated with the charges expunged. But don’t worry, if the judge asked whether you’d like your charges expunged and you answered “no,” you can still petition the court later on to destroy these criminal record(s). For those whose charges were dismissed or who were acquitted, expungement will be fulfilled by the court without any fees. You may not be able to successfully petition for expungement if you were acquitted of only some charges or if only some of your charges were dismissed. According to TCA §40-32-101 section (a)(1)(E), “a person is not entitled to the expunction of such person’s records if” they were convicted of an offense related to the same criminal episode as the charge in question, including a lesser offense but excluding traffic offenses. Furthermore, if you were indicted on multiple counts in a single criminal episode and were convicted of one or more of the charges, you are not eligible to have the dismissed charges expunged. For example, say you were charged with six counts of assault, but were only convicted of three, while the other three were dismissed. This means that employers or other individuals who conduct a search of your criminal record will be able to see that you were convicted of three assault charges and three assault charges from the same criminal episode of assault were dismissed by the court. When the court that handled your charges orders the expunction of your criminal record, they will then send a copy of the expunction order to the Tennessee Bureau of Investigation (TBI) for entry into the expunged offender and pretrial diversion database. Please note that while all public records of your criminal record may be expunged, confidential records will be maintained. Release of such records except to law enforcement agencies is a Class A misdemeanor, therefore you can expect these confidential records to be kept private by the government’s agencies. So, are you still eligible for expungement if you were convicted of criminal charges? In certain cases, yes, but in other cases, no. Section (g) of TCA § 40-32-101 maps which convictions are and are not eligible for expungement. Please note in advance that section (g) applies only to criminal offenses committed on or after November 1, 1989. Most misdemeanors are eligible for expungement, excluding 45 misdemeanors which are deemed ineligible. Some relevant misdemeanors excluded from consideration for expungement are § 39-15-404, “Allowing person ages 18-21 to consume alcohol on person’s premises”; § 39-13-101(a)(3), “Assault”; and §55-10-401, “Driving under the influence of an intoxicant.” Unfortunately, this means that a DUI conviction cannot be expunged from your criminal record. Some felonies are eligible for expungement if the individual was sentenced to imprisonment for a term of three or less years and has completed their sentence. For example, if you were convicted of §39-17-417(g)(1) for manufacturing, delivering, selling, or possessing between ½ ounce and 10 pounds of marijuana, you can have this charge expunged, provided you successfully completed your sentence. Vandalism, theft under $1000, and accessory after the fact are also examples of the 38 felony convictions that can be expunged from your criminal record. For misdemeanor and felony convictions eligible for expungement, petitioners must meet certain criteria to have their expunction processed. In order to petition for expungement of eligible convictions, you must have never been convicted of any criminal offense other than the offense for which the petition is filed. However, multiple convictions which resulted from the same criminal episode are considered one offense for the purpose of section (g) expunctions. In other words, if you were convicted of multiple eligible charges during the same criminal episode, you may be eligible to have all such convictions expunged upon a single petition. Furthermore, under section (k) of TCA § 40-32-101, petitioners who were convicted of no more than two offenses which are individually eligible under section (g) may have both convictions expunged if the offenses were two misdemeanors or one felony and one misdemeanor. In addition to having an otherwise clean criminal record, you must wait five years after completing the sentence imposed for the convicted offense(s) before you are able to successfully petition for expunction. This includes not only the completion of a prison term or probation, but also all other requirements of the sentence imposed by the court, such as payment of fines and court costs. If one of the charges you are seeking to have expunged was Drug Fraud, however, then the waiting period between completion of your sentence and eligibility to file an expungement is extended to ten years. Just like in cases which were dismissed or resulted in acquittal, the court which held jurisdiction over your case will handle your expungement when you want to expunge a conviction. However, unlike in the case of acquittals and dismissals, the court may charge a fee to process expungements for convictions. Once you petition for expungement, the district attorney has sixty days to submit recommendations to the court, which will then consider all evidence and determine whether the petition shall be granted or denied. You haven’t reached the end of the road if your petition is denied, though – two years after the denial, you may petition the court again for expunction. If you have your criminal record expunged, you will be fully restored to the legal status you held prior to being indicted and/or convicted. “Expunction… means, in contemplation of law, the conviction for the expunged offense never occurred and the person shall not suffer any adverse effects or direct disabilities by virtue of the criminal offense that was expunged” (TCA § 40-32-101). In addition to job, housing, adoption, and other applications, this means that an individual granted expungement who is otherwise legally eligible is able to purchase a firearm and apply for a handgun carry permit. You may need to prove that your criminal record was expunged, in which case a copy of your order of expungement (which you are legally entitled to) is considered sufficient proof that you are no longer under any disability, disqualification, or other adverse consequence as a result of the expunged conviction. Please refer to section (g) of TCA § 40-32-101 to see a full list of which convictions are eligible and ineligible for expunction. Tennessee also offers a program called Diversion wherein first-time offenders can avoid serving time or having a criminal record. Upon successful completion of the diversionary period, an individual’s charge(s) can be expunged if the individual returns to court to request an expungement. This request can also be made by the individual’s attorney. Check out our article on diversion from 2020 to learn more about this useful program. An important addendum: those who were charged with a misdemeanor or felony while protesting a state law or municipal ordinance intended to maintain racial segregation or discrimination are eligible to have their records expunged as well. The charge must fall within certain requirements as described in section (f) of TCA § 40-32-101, which includes dismissed charges and nonviolent charges. This section also provides for the expungement of a deceased person’s charges acquired in the process of protesting racial discrimination when a person with legal authority to act on the behalf of the deceased petitions for the expunction. This means if your parents or grandparents faced criminal charges while protesting racial discrimination, you can have their criminal record cleansed. While museums and other sites dedicated to education are exempted from destruction requirements in these cases, this is still an important step towards equity. If you or a loved one are seeking to have your criminal record expunged, you can fill out this form and file it with the court that holds jurisdiction over your case. As always, Best & Brock is here to help if you are in the process of petitioning for expungement.

The Importance of Legal Representation

Legal representation is critical for individuals facing probation violation charges. An experienced attorney can help navigate the complex legal process, present a strong defense, and advocate for the best possible outcome. Attorneys can also assist in negotiating with the probation officer and the court to modify probation conditions if they are overly restrictive or if the individual’s circumstances have changed. Legal representation can make a significant difference in the outcome of a probation violation hearing. An attorney can challenge the evidence presented, highlight mitigating factors, and propose alternative solutions to revocation, such as additional counseling or community service. By providing a comprehensive defense, an attorney can help protect the individual’s rights and interests. Facing a probation violation can be a daunting and stressful experience. The consequences can be severe, affecting not only your freedom but also your future opportunities and overall well-being. Understanding what constitutes a probation violation and the legal process that follows is crucial for navigating this challenging situation.

What is a Diversion?

Diversions are programs offered in the state of Tennessee, through which certain 1st-time offenders might be eligible to avoid serving time and having a criminal record. Diversions are periods of probation during which the general prosecution of your case or your sentence is deferred. During this probation, you must follow certain conditions, and if you do so successfully, the charges against you or your sentence will be dropped, and your charges and arrest might be eligible for expungement. In order to apply for a diversion program in Tennessee, you need to submit a $100 application to the Tennessee Bureau of Investigation, who then runs your criminal background and history in order to certify that you are eligible for diversion. The attorneys here at Best & Brock are experienced and familiar with the process of diversion, and can take care of everything on your behalf. It is important to know that while you, your lawyers, and the district attorneys might come to an agreement, the possibility of diversion is still subject to the approval of the court. It is ultimately left to the judge’s discretion, and for more serious offenses or crimes, the judge might request that an eligibility hearing be required.

Pretrial Diversion

Pretrial diversion is the type of diversion where the prosecution agrees to suspend the general prosecution of your case. This type of diversion can occur any time throughout your case, once you, your lawyer, and the prosecutors have come to an agreement about the conditions and length of your potential diversion. Under pretrial diversion, you do not have to enter a plea or receive a sentence, but if you do not complete the diversion successfully, the prosecution of your case can continue as it was originally.

Pretrial Eligibility

TN Code § 40-15-105:

• (a)(1)(B) For purposes of this section, “qualified defendant” means a defendant who meets each of the following requirements:
  • (i)The defendant has not previously been granted pretrial diversion under this chapter or judicial diversion under § 40-35-313;
  • (ii) The defendant does not have a prior conviction for a Class A or B misdemeanor or for any class of felony; and
  • (iii) The charged offense for which the prosecution is being suspended is not a felony or any of the following offenses:
    • (a) Driving under the influence of an intoxicant as prohibited by § 55-10-401;
    • (b) Any misdemeanor sexual offense prohibited by title 39, chapter 13, part 5;
    • (c) Conspiracy, under § 39-12-103, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
    • (d) Criminal attempt, under § 39-12-101, to commit any Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
    • (e) Solicitation, under § 39-12-102 to commit any Class D or Class E felony sexual offense prohibited by title 39, chapter 13, part 5;
    • (f) Child abuse or child neglect or endangerment as prohibited by § 39-15-401;
    • (g) Domestic assault as prohibited by § 39-13-111; or
    • (h) Any misdemeanor offense committed by any elected or appointed person or employee in the executive, legislative, or judicial branch of the state or any political subdivision of the state, which offense was committed in the person’s official capacity or involved the duties of the person’s office.

Judicial Diversion

Judicial diversion is the program offered typically near the end of your case, or if your charges are not eligible for pretrial diversion. Judicial diversion differs from pretrial diversion in the results of your completion or failure to complete the probationary period. In pretrial diversion, the prosecutors defer any sort of prosecution, and failure to complete your probation results in those proceedings continuing. But under judicial diversion, if you fail to complete the probationary period, you will be found guilty of the charges against you. Conversely, if you complete the probation successfully, you will be found not guilty, and the charges and/or arrest might be eligible for expungement.

Judicial Eligibility

TN Code § 40-35-313:

• (a)(1)(B)(i) As used in this subsection (a), “qualified defendant” means a defendant who:
  • (a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
  • (b) Is not seeking deferral of further proceedings for any offense committed by any elected or appointed person in the executive, legislative or judicial branch of the state or any political subdivision of the state, which offense was committed in the person’s official  capacity or involved the duties of the person’s office;
  • (c) Is not seeking deferral of further proceedings for a sexual offense, a violation of §39-15-502, § 71-6-117, § 71-6-119, or § 39-15-508, driving under the influence of an intoxicant as prohibited by § 55-10-401, vehicular assault under § 39-13-106 prior to service of the minimum sentence required by § 39-13-106, or a Class A or B felony;
  • (d) Has not previously been convicted of a felony or a Class A misdemeanor for which a sentence of confinement is served; and
  • (e) Has not previously been granted judicial diversion under this chapter or pretrial diversion.

Probation Conditions Under Diversion

The conditions that you might have to follow under diversion must be agreed upon by both parties, and while laid out in both diversion statutes, there is not an exhaustive list. The conditions must be “reasonable” as determined by the court, and most conditions are what you might expect. Conditions could include that you do not commit another offense during your probation, that you participate in a treatment, rehabilitation, or educational program, that you make restitution to a victim, or that you use a monitoring device. The specific conditions depend heavily on the charges against you, and are usually tailored to show that you have completed or participated in practices that prove compliance with the relevant law(s).

Forms and Examples

This is an example of the application you fill out in order to see whether or not you are eligible for diversion in the state of Tennessee:

To fill out and submit an application for diversion you can visit the Diversions page on the Tennessee Bureau of Investigation’s website, here. Once you submit an application, the TBI will process the request, run your criminal background and history, and send back a certification letter with your eligibility status. This is an example of that certification:

As you can see in this example, if you’re eligible, your certification will state “The defendant has not had a prior disqualifying felony or misdemeanor conviction”. If you successfully complete your diversion, your charges and/or arrests might be eligible for expungement. Expungement is the process of removing charges and arrests from your criminal record, however the TBI will maintain a sealed copy for the sole purpose of recording that you have participated in a diversion program. Below you can see an order for expungement:

These records are extremely important to hold on to, as expungement means that the courts will destroy public records of your charges and/or arrests, and this piece of paper is the only documented proof that those records were actually expunged. If for some reason you need to participate in a background check, prior records that have been expunged will most likely not show up. But if they do, and if the background check is something extensive that allows access to expunged records, you need this proof to show those running the check that you qualified for expungement.

Contact Best And Brock Today If you or a loved one are dealing with a probation violation, it is essential to seek professional legal assistance to ensure that your rights are protected and to increase the likelihood of a favorable outcome. At Best And Brock, we have extensive experience in handling probation violation cases and are committed to providing the support and representation you need. Our dedicated team of attorneys will work tirelessly to build a strong defense and advocate for your best interests. Contact Best And Brock today for a consultation and let us help you through this difficult time.