Pre-Arraignment Diversion for Veterans Under the Brave Act

The Brave Act diversion program is a program specially designed to remove military service members and veterans from criminal prosecution for qualifying offenses, including a first time OUI offense. The Brave Act, which was signed into law in August of 2018 and replaced the Valor Act, provides for diversion of the individual aimed at helping rather than punishing a first-time OUI offender. The individual is ordered to undergo an assessment with the Department of Veteran’s Affairs, and if found to be qualifying, they are referred to an alcohol or substance abuse treatment program and other services as needed. The case is continued for a period of time to allow the individual to enroll and work towards completing the program. Once the individual has complied with and completed all requirements of the program, the OUI charge is dismissed.

The statute codifying this particular diversion program does not specifically stipulate whether an individual may be diverted prior to arraignment. Arraignment is the process by which an individual is formally charged with an offense in a courtroom in front of a judge. Diversion prior to arraignment is a significant benefit because it allows the individual to prevent unwanted parties from learning of the criminal offense. There has been some confusion over the past couple years as to what role the courts and the prosecutor play when diversion is not stipulated to be pre-arraignment.

In a recent decision, the court in Commonwealth vs. Deneisha D. Newberry, 483 Mass. 186 (2019) has finally made it clear; arraignment may be postponed to permit diversion only if the prosecutor agrees with the continuance. In Newberry, the judge ordered the case to be continued without arraignment over the objection of the prosecutor. The court in Newberry concluded that:

[U]nder G. L. c. 276A, § 3, a judge may not decline to arraign an adult defendant, over the Commonwealth's objection, and instead direct the defendant to a pretrial diversion program. Although other pretrial diversion programs statutorily mandate that a judge may not arraign an eligible defendant before that defendant has an opportunity to complete a pretrial diversion program, the language of G. L. c. 276A, § 3, requires arraignment, at the Commonwealth's request, before a defendant can participate in a pretrial diversion program.

Id. at 188. In other words, a person who meets the prerequisites of the Brave Act diversionary program for veterans may be diverted pre-arraignment if the individual and their counsel has received consent from the prosecutor. If arraignment is requested by the prosecutor, the judge is required to arraign the individual prior to participation in the pretrial diversion program. Regardless of whether the individual is arraigned or not, the judge can order conditions of release such as GPS monitoring or drug and alcohol screening through probation services. Id. at 198. If the judge determines that supervision by the probation department is necessary, a judge may order those conditions as well. Id.

The Law Offices of Joseph D. Bernard has had great success shepherding qualifying individuals through the Brave Act diversion program prior to arraignment. If you believe you qualify for this diversionary program, contact our office today.