Pretrial Diversion in Kentucky: Plea, Conditions, and Dismissal

Pretrial diversion in Kentucky lets people charged with certain Class D felonies avoid a criminal conviction by completing court-ordered conditions over a set period, but only after entering a guilty plea or an Alford plea that stays on the record the entire time.¹ If you finish every condition, the charge is marked “dismissed-diverted” and does not count as a conviction.² If you fail, the prosecutor can move forward on that plea without taking the case to trial.

Who Qualifies

The program is open only to people charged with a Class D felony, which carries a potential sentence of one to five years. Two categories of Class D felonies are excluded: offenses where Kentucky law prohibits probation, parole, or conditional discharge under KRS 532.045, and sex crimes as defined in KRS 17.500.¹

Your criminal history matters, but the rule is more generous than the “first-time offenders only” label this program often gets. You qualify as long as you have not been convicted of a felony, been on probation or parole, or been released from a felony sentence within the ten years immediately before you committed the current offense. A felony from twelve years ago, for example, would not automatically disqualify you.¹

One more timing rule: you cannot use pretrial diversion more than once in any five-year period. If you completed a diversion agreement three years ago, you are ineligible for a second one regardless of the new charge.¹

The Guilty Plea You Have to Enter First

This is the part that catches people off guard. Kentucky law requires every pretrial diversion participant to enter either a guilty plea or an Alford plea as a condition of entering the program.¹ An Alford plea means you do not admit guilt, but you acknowledge the prosecution has enough evidence that a jury could convict you. Either way, the plea sits on the record throughout the diversion period.

The stakes are real. If the court later voids your agreement for noncompliance, the prosecutor can proceed on your plea without a trial.³ You would then face sentencing on the original Class D felony. That leverage is what makes the program work, and it is also why the decision deserves a careful conversation with a defense attorney before you sign on.

How to Apply

The process starts with a written application to both the trial court and the Commonwealth’s attorney. Any person charged with an eligible offense can apply.¹ In practice, a defense attorney usually prepares and files it.

Before recommending for or against diversion, the Commonwealth’s attorney must run a criminal record check to confirm eligibility. If there is an identified victim, the prosecutor must make a good-faith effort to interview the victim, explain the proposed conditions, and hear any input the victim wants to provide. The victim’s recommendations can be presented to the court at the hearing on the application.⁴ Approval happens in open court.

Conditions, Restitution, and Fees

Kentucky law does not spell out a single set of conditions. Courts apply the same kinds of conditions used for probation, adapted to the diversion setting.⁵ Common ones include obeying all laws, maintaining contact with a supervision officer, completing community service, and participating in counseling or treatment.

Restitution is mandatory whenever the victim suffered a monetary loss. The court must order it, and the diversion agreement cannot be shorter than the time needed to pay it in full.⁵ If you caused $8,000 in damages and can only afford $300 a month, the agreement will run at least long enough to cover that.

The court may also order GPS monitoring through a county-operated program or require an alcohol monitoring device, particularly when the Commonwealth’s attorney requests it. Participants are generally responsible for the costs of monitoring equipment, though the court can waive fees for people who are indigent.¹

Every participant is assessed a diversion supervision fee set by the court, which can be based on your ability to pay and waived entirely for indigent defendants.¹ The statute does not cap the fee, so the amount varies by judicial circuit. Add restitution, monitoring costs, and any treatment program fees, and the full cost of diversion is rarely small.

The program’s length depends on the conditions and how long restitution takes to pay. Agreements commonly run from one to several years, and the supervision period must last at least long enough to complete every requirement.

What Happens If You Violate the Agreement

If you fail to meet your conditions or are not making satisfactory progress, the Division of Probation and Parole, the victim, or a law enforcement officer can report the violation to the Commonwealth’s attorney. The prosecutor then decides whether to ask the court to void the agreement.³

The hearing is not a rubber stamp. The court must use the same standards it would apply to a probation revocation, and you have the same rights you would have in a probation revocation proceeding: notice of the specific allegations, an evidentiary hearing with counsel, and a chance to present your side.³ The prosecution bears the burden by a preponderance of the evidence.

If the court voids the agreement, the judge must notify the prosecutor in writing and explain the reasons. The prosecutor then decides whether to proceed on your guilty plea.³ In most cases, they do. The Class D felony penalty range of one to five years is back on the table.

What You Get If You Finish

Successful completion delivers the program’s main payoff. The charge is listed as “dismissed-diverted” and does not count as a criminal conviction.² You are not required to disclose the disposition on any application for a job or professional license unless federal law specifically requires it.

The protection goes further. Your pretrial diversion records cannot be introduced as evidence in any court proceeding without your consent.² A future civil suit, custody case, or later criminal case generally cannot use the diversion against you unless you agree.

Dismissed-Diverted Is Not the Same as Expungement

A common misconception is that completing diversion automatically wipes the record clean. It does not. The “dismissed-diverted” notation means the charge did not result in a conviction, but the arrest and the diversion still exist in court and law enforcement databases. An FBI background check may reveal the arrest regardless of outcome, because arrest records are reported separately from convictions. For jobs that involve federal background checks or security clearances, the arrest itself can still surface.

Kentucky has separate expungement statutes that may allow you to petition for removal of certain records, but that is its own legal process with its own eligibility rules and timelines. Completing diversion makes you a strong candidate for expungement; it does not happen automatically.

What to Weigh Before You Say Yes

Diversion is not simply “avoid a conviction.” The guilty plea requirement means you give up your right to a trial. If you have a strong defense, you are trading the chance of acquittal for a guaranteed dismissal after compliance. If the prosecution’s case against you is strong, that trade looks much better. Your attorney should be able to assess the case before you decide.

Budget for the full cost, too. Supervision fees, restitution, possible monitoring device costs, and treatment program expenses add up. If financial strain causes you to fall behind, that noncompliance can lead to voiding the agreement and prosecution on the original charge. Courts can adjust fees for indigent participants, so raise affordability early if it is a concern.

1
Justia. Kentucky Code 533.250 – Pretrial Diversion Program in Each Judicial Circuit – Elements – Fee
2
Justia. Kentucky Code 533.258 – Effects of Successful Completion of Pretrial Diversion Agreement
3
Justia. Kentucky Code 533.256 – Failure to Complete Provisions of Pretrial Diversion Agreement
4
Justia. Kentucky Code 533.252 – Requirements of Commonwealth’s Attorney When Considering Application for Pretrial Diversion
5
Kentucky Legislative Research Commission. Kentucky Code 533.254 – Application of Probation and Restitution