Misdemeanor Diversion Program in Kentucky: Eligibility and Expungement

The misdemeanor diversion program in Kentucky lets you avoid a permanent conviction on a low-level charge by pleading guilty, completing a set of court-ordered conditions under supervision, and then having the case dismissed. You apply through the Commonwealth’s attorney, the court holds your plea in abeyance while you work through the agreement, and if you finish, the charge goes away. If you don’t finish, the court can enter judgment on your plea and move straight to sentencing.

Who Qualifies

Kentucky runs a pretrial diversion program in every judicial circuit under KRS 533.250. The statute sets the floor for eligibility, and the Commonwealth’s attorney and the judge decide who actually gets in.¹

To be eligible, you must meet all of the following:

No felony conviction, probation or parole status, or release from a felony sentence within the past ten years.
No prior use of pretrial diversion within the past five years.
No sex crime as defined under KRS 17.500, which is a permanent bar.
The current charge is not one where Kentucky law prohibits probation, parole, or conditional discharge under KRS 532.045.

An older felony, more than ten years back with no recent parole or sentence completion inside that window, does not automatically shut you out.¹

Offenses That Disqualify You

The statute describes exclusions in categories rather than a checklist. The main bars are offenses where probation itself is prohibited under KRS 532.045, sex crimes under KRS 17.500, and any charge the court or Commonwealth’s attorney finds inappropriate for diversion given the circumstances.¹

For non-felony charges, Kentucky’s Uniform Local Rules add another layer. Under ULCr Rule 11.06, prior traffic convictions generally do not disqualify you from non-felony diversion. A prior DUI conviction, however, does bar you, even if the current charge is unrelated, such as public intoxication.²

There is a narrow exception. If you are charged with public intoxication or alcohol intoxication and your history suggests the behavior is driven by addiction, you may still qualify with prior alcohol-related convictions on your record, as long as none of them were for DUI.²

The Guilty Plea Requirement

Before you decide whether to apply, understand this: Kentucky requires you to enter a guilty plea or an Alford plea to get into the program.¹ An Alford plea means you do not admit guilt but acknowledge the prosecution has enough evidence to convict. Either way, the plea is on record.

Finish the program and the court dismisses the charge; the plea never becomes a final conviction. Fail, and the court can enter judgment on that plea and go directly to sentencing. You have already waived your right to a jury trial, your right to confront witnesses, and your privilege against self-incrimination. There is no trial to fall back on.

This is real risk. Miss appointments, pick up a new charge, or fall behind on conditions, and the court does not start from scratch. It proceeds on the plea already in the file.

How to Apply

Diversion is not automatic. You have to apply in writing to both the trial court and the Commonwealth’s attorney.¹ The Commonwealth’s attorney then investigates before recommending anything to the court.

Under KRS 533.252, the prosecutor must:³

Run a criminal record check to confirm you meet the statutory requirements.
Interview any identified victim, explain the proposed conditions, and pass the victim’s recommendations to the court. If the victim is deceased, the prosecutor may interview a family member instead.
Conduct any additional investigation needed to decide on conditions or on whether to recommend diversion at all.

If the court approves your application, that approval happens in open court, and the Commonwealth’s attorney must attempt to notify the victim and the victim’s family so they can attend.³ The victim has no veto, but the input can shape your conditions.

Conditions, Supervision, and Cost

Kentucky treats diversion conditions much like probation conditions. Under KRS 533.254, the probation rules in KRS 533.020 and KRS 533.030 apply to your diversion period as closely as possible, and the Division of Probation and Parole handles supervision.⁴ In practice, that means conditions can include counseling, substance abuse treatment, community service, employment requirements, and regular check-ins.

Restitution is not optional. If a victim suffered monetary loss, the court must order restitution, and your diversion cannot end before restitution is paid in full.⁴

The court can also order GPS monitoring through a county program or require you to wear and pay for an alcohol monitoring device. If the court finds you indigent and no one else agrees to cover the monitoring cost, the court must consider other conditions.¹

Beyond conditions, expect a diversion supervision fee. The statute does not fix a dollar amount; the fee should be enough to defray all or part of the program cost and can be tied to your ability to pay. If the court finds you indigent, the fee can be waived entirely.¹ On top of that, any treatment, drug testing, community service supervision, or monitoring the court orders carries its own cost. Totals vary widely by circuit. Ask about a payment plan or fee reduction early if money is tight.

What Happens If You Fail

If you fall behind or the court decides you are not making satisfactory progress, several parties can trigger enforcement: the Division of Probation and Parole, the victim, or a law enforcement officer. Any of them can report the alleged violation to the Commonwealth’s attorney, who can ask the court for a hearing.⁵

At that hearing, the court uses the same standards it would use for revoking probation, and you have the same procedural rights as in a probation revocation.⁵ If the court voids your agreement, it notifies the prosecutor in writing with the reasons, and the prosecutor decides whether to proceed on your guilty plea.

Because the plea is already in the record, the prosecutor does not have to prove the case from scratch. The path from a voided agreement to a conviction and sentence is short.

One thing to know: the statute of limitations is paused from the moment you apply for diversion through the end of the agreement. The prosecution does not lose the ability to move forward just because time passed while you were in the program.⁵

What Happens If You Finish

Complete every condition and the charge is dismissed under KRS 533.258. No conviction is entered for the diverted offense.

Dismissal does not erase the record. The arrest, the charge, and the diversion itself still appear in court records and on background checks until you take a further step.

Expungement After Diversion

Under KRS 431.078, you can petition the court where you were charged to expunge misdemeanor records, including records of dismissed charges. The court holds a hearing at least thirty days after you file.⁶

For misdemeanor convictions, the filing fee is $100 and you must wait five years after completing your sentence or probation. Because diversion ends in a dismissal rather than a conviction, the timing and fee can be different. The statute allows dismissed charges to be included in an expungement petition, and acquittals and dismissals generally carry no filing fee. The court must notify the county attorney and any identified victim before the hearing.⁶

Expungement is worth pursuing. Until it is done, the arrest and the diversion remain visible to employers and landlords running background checks.

Immigration Consequences

If you are not a U.S. citizen, the guilty plea requirement is a trap worth understanding before you apply. For federal immigration purposes, USCIS defines a “conviction” more broadly than Kentucky does. A conviction exists when two things are true: the person entered a guilty plea or was found guilty, and the court ordered some form of punishment or restraint on liberty.⁷

Kentucky diversion satisfies both. You enter a guilty or Alford plea to get in, and the diversion agreement imposes conditions on your liberty. USCIS recognizes an exception for pretrial diversion programs where no admission or finding of guilt is required, but that exception does not describe Kentucky’s program.⁷ A successful diversion that clears your state record could still trigger deportation, denial of naturalization, or inadmissibility. Consult an immigration attorney before entering any plea.

Professional Licensing

Successful diversion is not the same as an arrest never having happened. Many licensing boards, including in nursing, law, education, and real estate, ask about arrests and charges, not only convictions. A dismissal through diversion may still be reportable, and some boards treat the guilty plea entered for diversion as a reportable event on its own, regardless of the eventual dismissal.

If you hold or are pursuing a professional license, read the disclosure questions on your board’s application carefully and be ready with a clear explanation of the diversion, its completion, and any rehabilitation you took on.

1
Justia Law. Kentucky Code 533.250 – Pretrial Diversion Program in Each Judicial Circuit – Elements
2
New York Codes, Rules and Regulations. ULCr Rule 11.06 Non-Felony Diversion Program
3
Justia Law. Kentucky Code 533.252 – Requirements of Commonwealth’s Attorney When Considering Application for Pretrial Diversion
4
Justia Law. Kentucky Code 533.254 – Application of Probation and Restitution
5
Kentucky Legislative Research Commission. Kentucky Code 533.256 – Failure to Complete Provisions of Pretrial Diversion Agreement
6
Kentucky Legislative Research Commission. Kentucky Code 431.078 – Expungement of Misdemeanor, Violation, and Traffic Infraction Records
7
U.S. Citizenship and Immigration Services (USCIS). Policy Manual – Volume 12, Part F, Chapter 2 – Adjudicative Factors