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If you or a loved one has been arreste for a Misdemeanor case, you will have a lot of questions.  As a forme probation officer, deputy district attorney, ajunct criminology instructor and an Attorney with 18 years experience more than 50 Felony Jury Trials, and having handled Misdemeanor cases as a District Attorney and private Attorney, I have the knowlege to help you.  


With new laws that have recently passed have changed the way Misdemeanor cases will be in a profound way.  I will go through the changes in the law below, and show how these changes can help you with your case.  of course nothing in this article is meant as legal advice and should contact an Attorney as soon as possible.  


I will start with the old law and how the changes to the law have affected the way in which Misdemeanors will be handled in the future.  




The way Misdemeanor cases were handled in before ab 3234 was passed if someoene was arrested or brought to court for a Misdemeanor violation the prosecution had complete control over whether or not that person would recieve what is referred to a diversion. 

There are two types of diversion what are commonly referred to as pre-plea diversion and post plea diversion.  And the prosecution was in charge of and controlled wether a person would recieve one of those types of diversion.  This was a very big difference as  I will show below.



John is arrested for a simple Misdemeanor battery he has no prior criminal history and has worked the same job for 20 years and no longer drinks alcohol.  The prosecution could insist that he plea guilty be placed in a diversion program for a specific time period and then the charges would be dismissed with no need to get an expungement because the case would have already been dismissed.   However changes to the law in ab 3234 would profoundly affect how this case would be handled today.



After the passage of ab 3234 a person can recieve diversion on any Misdmeanor case over the objection of the prosecution.  There are exceptions to this rule such as stalking crimes requiring registration, domestic battery and several other cases.  However, most cases are not pre plea diversion eligible even over the objection of the prosecution.



So looking at our case with John on a Misdemeanor Battery if the prosecution refused to give a pre plea diversion or before admission diverstion the Judge over there objection could rule against them and place John into a diversion program for up to 2 years.  In addition if he were to complete the diversion program the arrest would be deemed to never have occurred and he would not have to admit the arrest on private application for employment or for rental applications.  


This is a very big difference in the way cases were handled in the past purely to the discretion of the prosecution and no where the Judge could be sold on the fact the person should be given an oppurtunity to give the person pre-plea diversion and a chance to have the offense deemed to never have happened.  This is a factual determination and where legal work and an experienced defense attorney come into play.  As an Attorney you must be prepared to argue the specific facts as to why this particular person is worthy of diversion.  Not just argue that there is a law out ther that says the person can get diversion.  


If after reading this article you have any questions give us a a call at 559-441-1418 and we can evaluate your case. 




Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704 View Map
Phone: 559.441.1418