Judicial diversion in Tennessee law is a means of allowing a qualified defendant who is convicted of or pleads guilty to an offense to avoid having a recorded conviction for the offense if certain conditions are met. To qualify, a defendant must not already have any serious prior convictions and must not have received a judicial diversion in the past. The offense must also be an eligible offense. Certain offenses are specifically not eligible for this resolution. A DUI offense is not eligible for diversion in Tennessee. In the recent case of State v. Jones, M2013-00938-CCA-R3-CD (Tenn.Crim.App. 8-20-2014), the Court of Criminal Appeals has ruled that the crime of vehicular assault, though not expressly excluded by statute, is also not eligible for judicial diversion, as it contains the lesser included offense of DUI, which is expressly ineligible.
In the Jones case, the defendant was convicted at trial of both DUI and vehicular assault, as her substance impaired driving injured another person. The trial court merged the convictions into a single conviction of vehicular assault. Though DUI is expressly by statute not an offense eligible for diversion, the statute does not expressly exclude the crime of vehicular assault. Therefore, the trial court ruled the defendant was eligible and granted diversion. The state appealed.
The Court of Criminal Appeals reversed the trial court ruling, agreeing with the state that since the conviction for the greater offense of vehicular assault necessarily included conviction of the lesser offense of DUI, the express exclusion of DUI from eligibility also excluded the crime of vehicular assault.
For more information on how a defendant in a criminal case may qualify for a judicial diversion, contact The Lanzon Firm.