8-321

8-321. Referrals; diversions; conditions;
community based alternative programs

A. Except as provided in subsection B of this section, before a petition is filed
or an admission or adjudication hearing is held, the county attorney may divert the
prosecution of a juvenile who is accused of committing a delinquent act or a child who is
accused of committing an incorrigible act to a community based alternative program or to
a diversion program administered by the juvenile court.

B. A juvenile is not eligible for diversion if any of the following applies:

1. The juvenile committed a dangerous offense as defined in section 13-105.

2. The juvenile is a chronic felony offender as defined in section 13-501.

3. The juvenile committed an offense that is listed in section 13-501.

4. The juvenile is alleged to have committed a violation of section 28-1381,
28-1382 or 28-1383.

5. The juvenile is alleged to have committed an offense involving the purchase,
possession or consumption of spirituous liquor or a violation of title 13, chapter 34 and
the juvenile has previously participated in a community based alternative program or a
diversion program administered by the juvenile court at least two times within
twenty-four months before the date of the commission of the alleged offense.

C. Except as provided in section 8-323, the county attorney has sole discretion to
decide whether to divert or defer prosecution of a juvenile offender. The county attorney
may designate the offenses that shall be retained by the juvenile court for diversion or
that shall be referred directly to a community based alternative program that is
authorized by the county attorney.

D. The county attorney or the juvenile court in cooperation with the county
attorney may establish community based alternative programs.

E. Except for offenses that the county attorney designates as eligible for
diversion or referral to a community based alternative program, on receipt of a referral
alleging the commission of an offense, the juvenile probation officer shall submit the
referral to the county attorney to determine if a petition should be filed.

F. If the county attorney diverts the prosecution of a juvenile to the juvenile
court, the juvenile probation officer shall conduct a personal interview with the alleged
juvenile offender. At least one of the juvenile's parents or guardians shall attend the
interview. The probation officer may waive the requirement for the attendance of the
parent or guardian for good cause. If the juvenile acknowledges responsibility for the
delinquent or incorrigible act, the juvenile probation officer shall require that the
juvenile comply with one or more of the following conditions:

1. Participation in unpaid community restitution work.

2. Participation in a counseling program that is approved by the court and that is
designed to strengthen family relationships and to prevent repetitive juvenile
delinquency.

3. Participation in an education program that is approved by the court and that has
as its goal the prevention of further delinquent behavior.

4. Participation in an education program that is approved by the court and that is
designed to deal with ancillary problems experienced by the juvenile, such as alcohol or
drug abuse.

5. Participation in a nonresidential program of rehabilitation or supervision that
is offered by the court or offered by a community youth serving agency and approved by
the court.

6. Payment of restitution to the victim of the delinquent act.

7. Payment of a monetary assessment.

G. If the juvenile successfully complies with the conditions set forth by the
probation officer, the county attorney shall not file a petition in juvenile court and
the program's resolution shall not be used against the juvenile in any further proceeding
and is not an adjudication of incorrigibility or delinquency. The resolution of the
program is not a conviction of crime, does not impose any civil disabilities ordinarily
resulting from a conviction and does not disqualify the juvenile in any civil service
application or appointment.

H. In order to participate in a community based alternative program the juvenile
who is referred to a program shall admit responsibility for the essential elements of the
accusation and shall cooperate with the program in all of its proceedings.

I. All of the following apply to each community based alternative program that is
established pursuant to this section:

1. The juvenile's participation is voluntary.

2. The victim's participation is voluntary.

3. The community based alternative program shall ensure that the victim, the
juvenile's parent or guardian and any other persons who are directly affected by an
offense have the right to participate.

4. The participants shall agree to the consequences imposed on the juvenile or the
juvenile's parent or guardian.

5. The meetings and records shall be open to the public.

J. After holding a meeting the participants in the community based alternative
program may agree on any legally reasonable consequences that the participants determine
are necessary to fully and fairly resolve the matter except confinement.

K. The participants shall determine consequences within thirty days after referral
to the community based alternative program, and the juvenile shall complete the
consequences within ninety days after the matter is referred to the community based
alternative program. The county attorney or the juvenile probation officer may extend the
time in which to complete the consequences for good cause. If the community based
alternative program involves a school, the deadlines for determination and completion of
consequences shall be thirty and ninety school days, respectively.

L. The community based alternative program, the juvenile, the juvenile's parent or
guardian and the victim may sign a written contract in which the parties agree to the
program's resolution of the matter and in which the juvenile's parent or guardian agrees
to ensure that the juvenile complies with the contract. The contract may provide that the
parent or guardian shall post a bond payable to this state to secure the performance of
any consequence imposed on the juvenile pursuant to subsection J of this section.

M. If the juvenile successfully completes the consequences, the county attorney
shall not file a petition in juvenile court and the program's resolution shall not be
used against the juvenile in any further proceeding and is not an adjudication of
incorrigibility or delinquency. The resolution of the program is not a conviction of
crime, does not impose any civil disabilities ordinarily resulting from a conviction and
does not disqualify the juvenile in any civil service application or appointment.

N. The county attorney or juvenile court shall assess the parent of a juvenile who
is diverted pursuant to subsection A of this section a fee of fifty dollars unless, after
determining the inability of the parent to pay the fee, the county attorney or juvenile
court assesses a lesser amount. All monies assessed pursuant to this subsection shall be
used for the administration and support of community based alternative programs or
juvenile court diversion programs. Any amount greater than forty dollars of the fee
assessed pursuant to this subsection shall only be used to supplement monies currently
used for the salaries of juvenile probation and surveillance officers and for support of
programs and services of the superior court juvenile probation departments. The clerk of
the superior court shall pay all monies collected from this assessment to the county
treasurer for deposit in the juvenile probation fund, to be utilized as provided in
section 12-268, and the county attorney shall pay all monies collected from this
assessment into the county attorney juvenile diversion fund established by section
11-537.

O. The supreme court shall annually establish an average cost per juvenile for
providing diversion services in each county, based on the monies appropriated for
diversion pursuant to section 8-322, excluding the cost of juvenile intake services
provided by the juvenile court, and the number of juveniles diverted the previous year.
On the county attorney's certification to the supreme court of the number of juveniles
diverted to a county attorney community based alternative program each quarter, the
annual average cost per juvenile for each juvenile diverted shall be reimbursed to the
county attorney juvenile diversion fund established by section 11-537 out of monies
appropriated to the supreme court for diversion programs.

P. If the juvenile does not acknowledge responsibility for the offense, or fails to
comply with the consequences set by the community based alternative program, the case
shall be submitted to the county attorney for review.

Q. After reviewing a referral, if the county attorney declines prosecution, the
county attorney may return the case to the juvenile probation department for further
action as provided in subsection F of this section.