Pretrial Diversion in Tennessee: Eligibility, Conditions, and Completion

Pretrial diversion in Tennessee is a program run by the district attorney that lets a person charged with an eligible misdemeanor avoid a criminal conviction by completing court-ordered conditions for up to two years. Finish the program and the charges are dismissed; you can then petition to have the record expunged. The program is governed by T.C.A. 40-15-105, and the prosecutor — not the judge — decides whether you get in.¹

Who Qualifies

The statute defines a “qualified defendant” through three requirements, and you must meet all three.

No prior conviction for a Class A or B misdemeanor or any felony. Class C misdemeanor convictions, which include many minor traffic offenses, do not automatically disqualify you.
You have never previously been granted pretrial diversion or judicial diversion.
The offense you are charged with is an eligible misdemeanor. Felony charges are entirely excluded.¹

That last point is where people get stuck. Pretrial diversion is a misdemeanor-only program. If you are facing a felony, you are not eligible no matter how strong your background looks. Judicial diversion, a separate program, is the option for certain felony classes.

Which Misdemeanors Are Excluded

Even among misdemeanors, the statute bars specific offenses:

DUI under T.C.A. 55-10-401.
Any misdemeanor sexual offense, plus conspiracy, criminal attempt, or solicitation to commit certain felony sexual offenses.
Child abuse, neglect, or endangerment under T.C.A. 39-15-401.
Domestic assault under T.C.A. 39-13-111.
Any misdemeanor committed by a government employee or elected official in their official capacity or involving their official duties.¹

The list is narrower than many people assume. The statute does not broadly exclude “violent crimes.” A simple assault charge with no domestic relationship, for example, is not automatically excluded.

How the Prosecutor Decides

Meeting the statutory requirements does not guarantee approval. The district attorney has broad discretion, and this is where most applicants hit resistance. Prosecutors weigh the seriousness of the offense, your criminal history, ties to the community, employment or education status, attitude toward rehabilitation, and the circumstances of the charge.

The Tennessee Supreme Court addressed that discretion in State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997), holding that a denial must include a factual basis and rationale grounded in the specific facts of your case. A gut feeling or blanket office policy is not enough. If the prosecutor denies your application, you can petition the trial court for review, and if there is a factual dispute the court should hold an evidentiary hearing.²

The court reinforced that standard in State v. Curry, 988 S.W.2d 153 (Tenn. 1999), where the prosecution was found to have abused its discretion by denying diversion based solely on the circumstances of the offense without weighing the full range of relevant factors.³

How to Apply

The process starts with a written request to the district attorney’s office, usually filed through your attorney. The application should cover your background, explain why you are a good candidate, and include supporting materials such as character references, proof of employment or school enrollment, and any evidence of rehabilitation steps already taken.

Before the prosecutor can approve you, Tennessee law requires a certificate of eligibility from the Tennessee Bureau of Investigation. You apply through the TBI’s online portal and pay a $100 fee. The TBI runs a background check to confirm you meet the statutory requirements and sends the certificate to the district attorney.⁴

The prosecutor may also conduct their own investigation: reviewing police reports, speaking with the victim, and consulting with law enforcement. You may be asked for an interview or additional documents. There is no guaranteed timeline; expect weeks.

If the application is approved, the agreement is written up as a memorandum of understanding filed with the court. It lays out every condition, must be signed by both parties, and includes a written waiver of your speedy-trial right, since the case stays open throughout the diversion period. The court must approve the memorandum before it takes effect.¹

Conditions and Costs

The memorandum must include at least one condition, and most include several. Options in the statute include no new offenses during the diversion period, prohibitions on specific conduct related to the original charge, rehabilitation or counseling programs, restitution based on your ability to pay, court costs on a set schedule, and alcohol or drug monitoring where substance use was a factor.¹

The maximum length of the program is two years from the date the memorandum is filed. The supervising agency, typically the local probation office, will require regular check-ins.

The program is not free. The statute requires a $10 monthly supervision fee paid to the supervising agency, which comes to as much as $240 over a full two-year term. On top of that, you may owe additional supervision costs, counseling or treatment fees, and court costs as specified in the memorandum, all based on your ability to pay. The $100 TBI certificate fee is paid upfront, before you know whether the prosecutor will approve you. Restitution, if ordered, is separate and depends on the harm caused by the offense.¹⁴

If You Violate the Agreement

Either party can terminate the memorandum. If the prosecution files a notice of termination, the case resumes as if the agreement never existed and you face the original charge at trial. A violation does not produce an automatic conviction. The state still has to prove its case. That is one of pretrial diversion’s biggest advantages over judicial diversion, where a violation triggers a conviction based on the guilty plea already on file.

If you believe the prosecutor terminated the agreement unfairly, you can petition the court for review. The court decides whether the prosecution acted arbitrarily or abused its discretion, and if it agrees it can reinstate you under the original memorandum or dismiss the charges outright.¹

Common violations include missed probation check-ins, failed drug tests, a new criminal charge, or failing to complete a required program. Technical violations count too. The prosecutor has no obligation to offer a second chance once a pattern of noncompliance appears.

After You Complete the Program

If you complete every condition and the diversion period expires without a termination notice, the court dismisses the charges with prejudice 90 days after the suspension period ends. Once dismissed with prejudice, jeopardy attaches and the state cannot prosecute you for that charge again.¹

Dismissal by itself does not erase the arrest or charge from your record. To remove those records, you must file a separate petition for expungement under T.C.A. 40-32-101 in the court that handled the original case. A clerk’s filing fee applies. Once the expungement is granted, the court sends the order to the TBI for entry into its expunged offender database.⁵

After expungement, the charge is treated as though it never happened. You do not need to disclose it on job applications, housing forms, or most background checks. One important exception: if the diverted offense was a sexual offense as defined by T.C.A. 40-39-202, expungement is not available even after successful completion of diversion.⁵

Pretrial Diversion Compared With Judicial Diversion

Tennessee offers two diversion tracks with distinct risks. Pretrial diversion is controlled by the district attorney, applies only to misdemeanors, and does not require an admission of guilt. Judicial diversion is controlled by the judge, covers certain felonies as well as misdemeanors, and requires a guilty plea or a finding of guilt before the court defers further proceedings.⁶

The risk profiles are fundamentally different. If you fail pretrial diversion, the prosecution must still prove its case at trial. If you fail judicial diversion, your guilty plea stands and you are convicted with no trial. Judicial diversion has a broader reach: it covers Class C, D, and E felonies, and only Class A and B felonies are excluded. It also excludes vehicular assault and certain child exploitation offenses that are not listed in the pretrial diversion statute.⁶

You cannot receive both. Any prior grant of pretrial or judicial diversion permanently disqualifies you from either program. When both options are available for a misdemeanor charge, pretrial diversion is usually the better choice because it preserves your right to a trial if something goes wrong. Judicial diversion is the path when the charge is a felony or when the prosecutor refuses pretrial diversion and the judge is willing to grant the judicial version instead.⁷

Non-Citizens: A Key Advantage

If you are not a U.S. citizen, the structure of pretrial diversion offers a real advantage. Under federal immigration law, a “conviction” requires either a formal judgment of guilt or a situation where the person has admitted guilt and the court has imposed some form of punishment or restraint on liberty. USCIS policy guidance states that when a defendant is directed to a pretrial diversion program where no admission or finding of guilt is required, the resulting order generally does not count as a conviction for immigration purposes.⁸

Tennessee’s pretrial diversion fits that description because you never plead guilty and the case is dismissed on completion. Judicial diversion is different: it requires a guilty plea, which can satisfy the federal definition of a conviction for immigration purposes even if the state court later dismisses the charge. If you hold a visa, a green card, or are in any other immigration status, that distinction can be the difference between keeping your status and facing removal. Speak with an immigration attorney before accepting any diversion offer.

1
Justia. Tennessee Code 40-15-105 – Memorandum of Understanding – Suspended Prosecution
2
vLex. State v. Pinkham
3
vLex United States. State v. Curry
4
Tennessee Bureau of Investigation. Diversions – TBI Backgrounds
5
Justia. Tennessee Code 40-32-101 – Destruction or Release of Records
6
Justia. Tennessee Code 40-35-313 – Probation – Conditions – Discharge and Dismissal – Expunction From Official Records – Fee
7
Tennessee Bureau of Investigation. Pretrial Diversion in Tennessee
8
USCIS. Policy Manual – Adjudicative Factors