1. Pre-Trial Diversion Infraction Deferral & Bad Check Programs Kristen E. McVey CDPA, Tippecanoe County

2. Pre-Trial Diversion v. Infraction Deferral
Pre-Trial Diversion – applies to misdemeanor and Level 5 and 6 felony cases
Infraction Deferral - applies only to infraction cases – but is NOT available to CDL holders (driving commercial vehicles)
Pre-Trial Diversion - I.C
Infraction Deferral - I.C

3. Infraction Deferral
Applies to all types of infractions.

4. What cannot be deferred?
Any infraction involving the operation of a commercial motor vehicle.
Any infraction committed by a probationary license holder that is <18 years of age.

5. Misdemeanor or Felony Diversion
Applies to most misdemeanors and most Level 5 and Level 6 felonies.

6. What cannot be diverted?
Murder, Level 1, 2, 3 or 4 felony cases.
Cases where a person has a commercial driver’s license (CDL) and who has been charged with an offense involving the operation of a motor vehicle in accordance with the federal Motor Carrier Safety Improvement Act.
OWI of any kind.
Minor Consumption/Poss./Transportation of Alcohol in which the offender was driving.

7. What cannot be diverted?
An offender that commits Criminal Mischief with a Vehicle while on a probationary license and being <18 yoa.
Obstruction of Traffic with a Motor Vehicle – Class A misdemeanor (but…).

8. Considerations Consider: nature of the offense facts, circumstances
criminal history of the offender
victim input
existence of alternate consequences/programs
any mitigating or aggravating circumstances

9. Requirements These are post-filing agreements.
Cannot negotiate diversions prior to IH in front of judicial officer
Must be in writing
Must be filed as publicly available documents, no “secret” agreements
All monies must be deposited directly into the clerk’s office
Your office cannot handle the money at all.
Use local ordinance to create separate diversion and deferral funds in the auditor’s office if not already in place.
Requires a local enabling ordinance that is non-reverting to create the fund.

10. Diversion Terms
See I.C
pay prescribed fee to clerk’s office
restitution
maintain employment
get counseling
a no contact order
Includes provision that any other term not described may be included with court approval
Does not discuss refraining from alcohol or drug use

11. Pitfalls
Lawfully you can divert Level 5 felonies – which include things like Reckless Homicide
I would recommend NOT doing this.
Policy – put a policy into place to guide your DPA as what they can and cannot divert
Spending the money incorrectly. Be careful to spend it only on what is permitted under the statute.
Victim notification is still required – don’t neglect.

12. What can you spend the money on?
(1) Personnel expenses related to the operation of the program
(2) Special training for: (A) a prosecuting attorney; (B) a deputy prosecuting attorney; (C) support staff for a prosecuting attorney or deputy prosecuting attorney; or (D) a law enforcement officer.
(3) Employment of a deputy prosecutor or prosecutorial support staff.
(4) Victim assistance.
(5) Electronic legal research.
(6) Office equipment, including computers, computer software, communication devices, office machinery, furnishings, and office supplies.
(7) Expenses of a criminal investigation and prosecution.
(8) An activity or program operated by the prosecuting attorney that is intended to reduce or prevent criminal activity, including:
(A) substance abuse; (B) child abuse; (C) domestic violence; (D) operating while intoxicated; and (E) juvenile delinquency.
(9) Any other purpose that benefits the office of the prosecuting attorney or law enforcement and that is agreed upon by the county fiscal body and the prosecuting attorney.
These funds may be used only in accordance with guidelines adopted by the prosecuting attorneys council under IC

13. Electronic Transmission to IPAC.
IC (c)(4) and IC (h)(6) require electronic transmission (via ProsLink) of certain information from each deferral or diversion once executed.

14. $Money Strict rules as to how much you can charge.
Strict rules as to how much of it you receive.
Strict rules as to what you can spend it on.
You CANNOT pay yourself with it.
Do not budget based on anticipated receipts.
ALL expenditures have to be approved by the county fiscal body BUT you are limited by the law about what you can spend it on – and they cannot make you spend it on statutorily unapproved things.

15. Bad Check Programs
Can just handle these as regular part of diversion program
Problem  they are high maintenance in terms of monitoring for payment of restitution.
Option  a program that permits merchants to present bad checks directly to the program before review for charges.

16. Corrective Solutions
THIS is NOT an endorsement or advertisement of their services – just showing you what we do.
It is a program that permits merchants to directly submit bad checks to the program for review, processing.
YOU are in charge of the guidelines and details of the program.
15 counties in Indiana

17. Tippecanoe County Bad Check Program
Web site that merchants can directly visit and view:
It educations merchants as to good check acceptance practices.
It gives guidelines for acceptance of checks into the program
It provides info for getting restitution

18. Tippecanoe County Bad Check Program
Make guidelines for acceptance into the program very clear
Avoid post-dated checks, checks pursuant to contracts or civil agreements, rent check, checks pursuant to real estate or land contracts etc.
Be sure to include mechanisms by which subjects who have suffered identify theft can be removed (upon presenting a theft affidavit etc.)

19. Tippecanoe County Bad Check Program
How does it work?
Merchants complete and submit Bad Check Report and provide all required and necessary documentation.
The program even instructs the merchants about how to write and send “bad check notices” to check-writers.
The program reviews the checks and documentation for compliance with program requirements.

20. Tippecanoe County Bad Check Program
The program contacts the check-writers with a letter inviting them into the program as a way to avoid review for criminal charges.
The program requires that they:
Attend a class about financial responsibility
Pay restitution and any statutory service fees
Pay a fee (some of which goes to the program, some of which goes to you)

21. Tippecanoe County Bad Check Program
What happens if the check-writer refuses or fails to complete the program?
The check and all documentation are sent to prosecutor’s office for review for filing of criminal charges.

22. Bad Check Program – Things to Know
Tell the program if you want them to call or contact check writers by phone or about compliance – be warned – they can get aggressive if you them.
Be sure to make it clear that check-writers can get out if they provide a theft affidavit or police report indicating they were victim of theft or identity deception.

23. Bad Check Program – Things to Know
You will make less money doing this as compared to just regular diversion program.
But – the payoff is in not spending a lot of time and resources dealing with merchants, reviewing checks, chasing restitution etc.
This is a great benefit to merchants – they can avoid dealing with court.
This is a benefit to check-writers who can avoid prosecution.

24. Bad Check Program Logistics
Be sure to make your expectations for how the program works clear to program management.
Create a local ordinance that creates an account in your auditor’s office for the specific deposit of these funds.
Treat and track all expenditures the same way as other diversion funds

25. Bad Check Program Restitution Amounts
2013 = $
2012 = $11,972.44
2011 = $15,897.83
It is a good thing if your numbers decrease – and it makes sense as fewer and fewer people use checks anyway.

26. Bad Check Program Numbers Number of Checks
2013 = 149 (172 screened out as ineligible)
2012 = 263 (249 screened out as ineligible)
2011 = (244 screened out as ineligible)
Also, the number of ineligible checks that get screened out gets smaller as merchants and others learn what is acceptable and not.

27. Bad Check Program Number submitted for review
2013 = 8
2012 = 9
2011 = 14
So given the amount of upfront work saved, it has been a benefit to our office.