DISMISSAL OF ACTION
19-3509. diversion program requirements. (1) A prosecuting attorney may, at the prosecuting attorney’s discretion, establish a diversion program and may refer a defendant eligible to participate in a diversion program pursuant to section 19-3508, Idaho Code, to such program within thirty (30) calendar days of a citation being issued or charges being filed against the defendant. Before entering an agreement to participate in the diversion program, a defendant may obtain advice from a defense attorney on the requirements and consequences of participating in the diversion program and must undergo a drug or alcohol evaluation, or both, if requested by the prosecuting attorney. The terms and conditions of the diversion program shall be set forth in a written agreement signed by the prosecuting attorney and the defendant as well as the defendant’s attorney, if the defendant is represented by an attorney. If the defendant agrees to participate in the diversion program, then the prosecuting attorney shall move for dismissal of the action against the defendant pursuant to section 19-3506, Idaho Code.
(a) A diversion program may be administered by the prosecuting attorney or by the prosecuting attorney’s designee. The diversion agreement shall specify the person administering the program and shall set out the requirements for successful completion of the program and the duration of the diversion agreement. The duration of the period a person is required to participate in a diversion program under this section shall be no shorter than twelve (12) months. All persons participating in a diversion program shall be required to install and maintain, at the participant’s expense, an ignition interlock system in each vehicle such person operates for the duration of the program, as further provided in subsection (5) of this section. A person participating in a diversion program for a charge unrelated to alcohol shall, in addition to installing and maintaining an ignition interlock system, be required to undergo drug testing at the person’s expense for at least twelve (12) months. If the person is indigent, the prosecuting attorney may order the use of moneys from the court interlock device and electronic monitoring device fund created by section 18-8010, Idaho Code, to assist the person in procuring an ignition interlock device. The participant in a diversion program must also complete at least thirty-two (32) hours of sheriff inmate labor detail or approved community service and at least twenty-four (24) hours of drug and alcohol counseling, therapy, or education from an approved provider.
(b) At the end of the diversion period, the prosecuting attorney shall determine whether the participant complied with the requirements of the diversion agreement. If the prosecuting attorney finds that the participant failed to comply with the requirements of the diversion agreement, then the prosecuting attorney may refile the case pursuant to section 19-3506, Idaho Code.
(2) A prosecuting attorney may require, as a condition of entering a diversion program, that a person execute a sworn affidavit stating the facts that gave rise to the charge of driving under the influence. Such affidavit may be used as evidence of guilt during an adjudicative proceeding in a refiled case. No other statement made by the person in diversion activities or proceedings, such as in a counseling or therapy session, is admissible as evidence of guilt during an adjudicative proceeding in a refiled case.
(3) The requirements for successful completion of a diversion program may include, but are not limited to:
(a) Informal supervision with the probation department;
(b) Community service work;
(c) Inmate labor detail work;
(d) A community-based diversion program;
(e) Restitution to a victim;
(f) Alcohol monitoring and testing;
(g) Individual therapy and counseling;
(h) Group therapy and counseling; and
(i) Drug monitoring and testing.
(4) The administrator of a diversion program may require payment of restitution and fees to cover the costs of the diversion program. Any moneys collected shall be reasonably related to program costs. The administrator shall assess a diversion fee of one hundred fifty-seven dollars and fifty cents ($157.50) to each diversion participant. If the participant is indigent, the diversion fee may be waived. The diversion fee shall be paid to the clerk of the district court and distributed as follows:
(a) Seventeen dollars and fifty cents ($17.50) to be distributed as provided in section 31-3201A(2), Idaho Code;
(b) Ten dollars ($10.00) to be distributed as provided in section 31-3201(3), Idaho Code;
(c) Ten dollars ($10.00) to be distributed as provided in section 31-3201(5), Idaho Code;
(d) Fifteen dollars ($15.00) to be distributed as provided in section 31-3201B, Idaho Code;
(e) Fifty dollars ($50.00) to be distributed as provided in section 31-3201H, Idaho Code;
(f) Fifteen dollars ($15.00) to be distributed as provided in section 31-3204, Idaho Code;
(g) Thirty-seven dollars ($37.00) to be distributed as provided in section 72-1025, Idaho Code; and
(h) Three dollars ($3.00) to be distributed as provided in section 72-1105, Idaho Code.
(5) A participant in a diversion program whose driving privileges have been suspended may be granted driving privileges by the administrator of the diversion program, in which case the participant shall be issued a restricted driving permit by the Idaho transportation department. Prior to being granted restricted driving privileges, the participant must show to the administrator proof of financial responsibility as defined and in the amounts specified in section 49-117, Idaho Code. If a person is participating in a diversion program under this section, then the participant must have an ignition interlock system as defined in section 18-8008, Idaho Code, installed in each vehicle operated by the participant and must pay an ignition interlock fee of fifteen dollars ($15.00) to be deposited in the court interlock device and electronic monitoring device fund created by section 18-8010, Idaho Code. The ignition interlock system shall be removed once the participant successfully completes diversion, provided that such removal shall not occur, and the program shall not be considered successfully completed, until the administrator of the diversion program receives a declaration from the participant’s ignition interlock vendor, on a form provided or approved by the administrator, certifying that none of the following incidents occurred while the system was installed in the vehicle:
(a) An attempt to start the vehicle with an alcohol concentration of 0.04 or more;
(b) Failure to take any random test;
(c) Failure to pass any random retest with an alcohol concentration of 0.025 or lower; or
(d) Failure of the participant to appear at the ignition interlock system vendor’s place of business when required for maintenance, repair, calibration, monitoring, inspection, or replacement of the system.
[19-3509, added 2019, ch. 305, sec. 9, p. 913.]