Prosecutors sometimes voluntarily offer diversion to defendants who are clearly eligible under a community’s guidelines. Defense counsel may also suggest diversion to prosecutors, sometimes even before formal charges are filed. Finally, defense counsel may wait until a defendant’s first court appearance and ask the judge to order an evaluation for diversion. In many jurisdictions, diversion can remain an option up until the time of trial.

A defendant who is referred for diversion in any of these ways then meets with a probation officer, who may conduct an investigation and prepares a report as to the defendant’s suitability for diversion. The report may specify the type of program that is most suitable for the defendant. Judges normally follow a probation officer’s recommendation.