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 that is approved by the court.

6. At the juvenile's option, participation in a religious program that is approved by the court. This option may be substituted for one of the other conditions outlined in this subsection. The juvenile's participation in a religious program must be voluntary, and the purpose of the program may not include any effort to coerce the juvenile to adopt or change any religious affiliation or beliefs.

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

8. Payment of a monetary assessment that may be satisfied through community restitution. The court shall credit any community restitution performed at a rate that is equal to the minimum wage prescribed by section 23-363, subsections A and B, rounded up to the nearest dollar.

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 or monetary sanctions or fines that exceed $250.

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.

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 may not assess or require the juvenile or the juvenile's parent or guardian to pay a fee or the cost for a community based alternative program or diversion program that is authorized by this section.

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.  The payment of a monetary assessment may not be used as a condition for the juvenile to comply with the consequences set by the community based alternative program.

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.

R. This section does not prevent a health insurer that is subject to title 20 or an Arizona health care cost containment system contractor from covering an expense that is related to the juvenile's treatment or care.