Title 3: Executive
Chapter 7: ATTORNEY GENERAL
3 V.S.A. § 164. Adult court diversion project
§ 164. Adult court diversion project
(a) The Attorney General shall develop and administer an adult court diversion project in all counties. The project shall be operated through the juvenile diversion project and shall be designed to assist adults who have been charged with a first or second misdemeanor or a first nonviolent felony. The Attorney General shall adopt only such rules as are necessary to establish an adult court diversion project for adults, in compliance with this section.
(b) The adult court diversion project administered by the Attorney General shall encourage the development of diversion projects in local communities through grants of financial assistance to municipalities, private groups or other local organizations. The Attorney General may require local financial contributions as a condition of receipt of project grants.
(c) All adult court diversion projects receiving financial assistance from the Attorney General shall adhere to the following provisions:
(1) The diversion project shall accept only persons against whom charges have been filed and the court has found probable cause, but are not yet adjudicated. The prosecuting attorney shall notify in writing the diversion program and the court of his or her intention to refer the person to diversion. If the prosecuting attorney refers a case to diversion, the prosecuting attorney may release information to the victim upon a showing of legitimate need and subject to an appropriate protective agreement defining the purpose for which the information is being released and in all other respects maintaining the confidentiality of the information; otherwise files held by the court, the prosecuting attorney, and the law enforcement agency related to the charges shall be confidential and shall remain confidential unless:
(A) the board declines to accept the case;
(B) the person declines to participate in diversion;
(C) the board accepts the case, but the person does not successfully complete diversion;
(D) the prosecuting attorney recalls the referral to diversion.
(2) Alleged offenders shall be informed of their right to the advice and assistance of private counsel or the public defender at all stages of the diversion process, including the initial decision to participate, and the decision to accept the adult diversion contract, so that the candidate may give informed consent.
(3) The participant shall be informed that his or her selection of the adult diversion contract is voluntary.
(4) Each state's attorney, in cooperation with the adult court diversion project, shall develop clear criteria for deciding what types of offenses and offenders will be eligible for diversion; however, the state's attorney shall retain final discretion over the referral of each case for diversion.
(5) All information gathered in the course of the adult diversion process shall be held strictly confidential and shall not be released without the participant's prior consent (except that research and reports that do not require or establish the identity of individual participants are allowed).
(6) Information related to the present offense that is divulged during the adult diversion program shall not be used in the prosecutor's case. However, the fact of participation and success, or reasons for failure may become part of the prosecutor's records.
(7)(A) The adult court diversion project shall maintain sufficient records so that the reasons for success or failure of the program in particular cases and overall can be investigated by program staff. These records shall include a centralized statewide filing system that will include the following information about individuals who have successfully completed an adult court diversion program:
(i) name and date of birth;
(ii) offense charged and date of offense;
(iii) place of residence;
(iv) county where diversion process took place; and
(v) date of completion of diversion process.
(B) These records shall not be available to anyone other than the participant and his or her attorney, state's attorneys, the Attorney General and directors of adult court diversion projects.
(8) Adult court diversion projects shall be set up to respect the rights of participants.
(9) Each participant shall pay a fee to the local adult court diversion project. The amount of the fee shall be determined by project officers or employees based upon the financial capabilities of the participant. The fee shall not exceed $300.00. The fee shall be a debt due from the participant, and payment of such shall be required for successful completion of the program. Notwithstanding 32 V.S.A. § 502(a), fees collected under this subdivision shall be retained and used solely for the purpose of the court diversion program.
(d) The Attorney General is authorized to accept grants and gifts for the purposes of this section, such acceptance being pursuant to 32 V.S.A. § 5.
(e) Within 30 days of the two-year anniversary of a successful completion of adult diversion, the court shall provide notice to all parties of record of the court's intention to order the sealing of all court files and records, law enforcement records other than entries in the adult court diversion project's centralized filing system, fingerprints, and photographs applicable to the proceeding. The court shall give the state's attorney an opportunity for a hearing to contest the sealing of the records. The court shall seal the records if it finds:
(1) two years have elapsed since the successful completion of the adult diversion program by the participant and the dismissal of the case by the state's attorney; and
(2) the participant has not been convicted of a subsequent felony or misdemeanor during the two-year period, and no proceedings are pending seeking such conviction; and
(3) rehabilitation of the participant has been attained to the satisfaction of the court.
(f) Upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this section shall be considered never to have occurred, all index references thereto shall be deleted, and the participant, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such participant inquiry in any matter. Copies of the order shall be sent to each agency or official named therein.
(g) Inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the participant who is the subject of such records, and only to those persons named therein.
(h) The process of automatically sealing records as provided in this section shall only apply to those persons who completed diversion on or after July 1, 2002. Any person who completed diversion prior to July 1, 2002 must apply to the court to have his or her records sealed. Sealing shall occur if the requirements of subsection (e) of this section are met.
(i) Subject to the approval of the Attorney General, the Vermont Association of Court Diversion Programs may develop and administer programs to assist persons under this section charged with delinquent, criminal, and civil offenses. (Added 1981, No. 206 (Adj. Sess.), § 2; amended 1983, No. 217 (Adj. Sess.); 1983, No. 229 (Adj. Sess.), § 1; 1995, No. 47, § 2, eff. April 20, 1995; 1999, No. 160 (Adj. Sess.), § 3; 2003, No. 157 (Adj. Sess.), § 12; 2009, No. 12, § 2; 2009, No. 146 (Adj. Sess.), § D6, eff. June 1, 2010; 2009, No. 156 (Adj. Sess.), § E.201.1; 2011, No. 56, § 24; 2011, No. 145 (Adj. Sess.), § 1.)