Pre-Prosecution Diversion

36-16A-2. PURPOSE.

The purpose of the Pre-Prosecution Diversion Act [31-16A-1 to 31-16A-8 NMSA 1978] are to remove those persons from the criminal justice system who are the most amenable to rehabilitation and least likely to commit future offenses, to provide those persons with services designed to assist them in avoiding future criminal activity, to conserve community and criminal justice resources, to provide standard guidelines and to evaluate Pre-Prosecution Programs.


A defendant must meet the following minimum criteria to be eligible for a Pre-Prosecution Diversion Program.

  1. the defendant must have no prior felony convictions for a violent crime and no prior felony convictions for any crime for the previous ten years;

  2. the crime alleged to have been committed by the defendant is non-violent in nature, with the exception of domestic disputes not involving a minor;

  3. if the defendant was on probation previously, his probation must not have been revoked or unsatisfactorily discharged;

  4. the defendant has not been admitted into a similar program for the previous ten years;

  5. the defendant is willing to participate in the program and submit to all program requirements;

  6. the crime alleged to have been committed by the defendant does not involve substantial sale of possession of controlled substances; and

  7. a person meeting all of the above criteria and any additional criteria established by the District Attorney may be entered into the Pre-Prosecution Diversion Program. The District Attorney may elect to not divert a person to the Pre-Prosecution Diversion Program even though that person meets the minimum criteria herein set forth. A decision by the District Attorney to not divert to the Pre-Prosecution Diversion Program is not subject to appeal and may not be raised as a defense to any prosecution or habitual offender proceeding.



  1. Applicants must secure or be appointed defense counsel prior to applying for the Pre-Prosecution Diversion Program.

  2. Applicants defense counsel will call PPD director to make the necessary appointments for the interview.

  3. Only applicants alleged to have committed a non violent crime or a crime not involving substantial sale or possession of controlled substances will be considered.

  4. At the discretion of the District Attorney and Pre Prosecution Diversion Director, applicants charged with drug offenses may be required to enter a treatment facility or counseling prior to being accepted into the PPD program.

  5. Victim approval is considered but not necessary, prior to entry into the program.

  6. Applicants should have the appropriate police agencies approval.

  7. If restitution is ordered, the full amount must be paid prior to acceptance into the program. If the applicant is unable to pay the full amount, a down payment of 1/3 is required with a monthly payment plan. All restitution must be paid in full before the end of probation.

  8. Applicants required to perform community service will complete all service within the time frame as set by the Pre Prosecution Diversion Director.

  9. All Pre Prosecution Diversion Participants are required to attend a tour of the Southern New Mexico Correctional Facility. The tour will be scheduled by the Director of Pre Prosecution Diversion and the participants will have adequate notice of the date and time.

  10. All Pre Prosecution Diversion Participants are required to report twice monthly. The appointments will be scheduled directly with the Pre Prosecution Diversion Director.

  11. Applicants must have the recommendation for acceptance from the Director of the Pre-Prosecution Diversion Program.

  12. District Attorney, Clint Wellborn will make the final approval of acceptance.