Diversion for a First DUI With Simple Drug Possession

Attorney Answer

Judicial diversion is not available for the DUI charge — Tennessee law excludes DUI defendants by name. The simple possession charge is a different matter, and it is not on the exclusion list. That means your two charges may have to travel on different paths.

The governing law. Judicial diversion is limited to a "qualified defendant," and Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(c) expressly writes out of that definition a defendant charged with "driving under the influence of an intoxicant as prohibited by § 55-10-401." The exclusion sits alongside sexual offenses, vehicular assault, and Class A and B felonies. There is no route around it: for the DUI count itself, diversion is off the table.

The possession count is charged under Tenn. Code Ann. § 39-17-418, which defines simple possession or casual exchange of a controlled substance, including cocaine. That offense is not on the § 40-35-313 exclusion list, so it can remain eligible.

Two cautions before you build a plan around this. First, eligibility is not entitlement — being a "qualified defendant" is only the threshold. Diversion remains discretionary with the court, and the rest of your history (prior convictions, prior diversions) also bears on eligibility. Second, diversion on the possession count does nothing to the DUI. The DUI carries its own mandatory statutory penalties on conviction, and those are unaffected by how the drug charge is resolved.

The charging language on the possession count is worth checking carefully. Simple possession under § 39-17-418 and possession with intent to sell or deliver are different offenses with very different consequences, and the difference sometimes turns on quantity or packaging rather than on anything you did.

What you can do

1. Get certified copies of both charging documents and confirm the drug count is actually charged under Tenn. Code Ann. § 39-17-418 as simple possession, not as possession with intent. 2. Pull your own complete criminal history. Diversion eligibility under § 40-35-313 depends on what is in it, and surprises there are common. 3. Tell your lawyer explicitly that you want the two charges evaluated separately — the diversion path exists only for the possession count, and a package resolution that lumps them together can quietly give it away. 4. Have counsel obtain the lab report and chain of custody for the substance, plus the stop and arrest video and the chemical-test records for the DUI. 5. If any assessment or treatment is going to be part of a resolution, start it now and document it. Courts weigh what you did before you were made to. 6. Handle the licence side immediately — it does not wait for your court date.

⏱ Time limits apply. If a chemical test was administered or refused, the deadline to contest the licence action is short and runs from the notice, separately from the criminal case. The licence matter and the criminal prosecution are two tracks with different standards of proof, and they can reach opposite results on the same stop — resolving one does not resolve the other. The specific window depends on the paperwork you were given, so have it checked now rather than after your first court appearance.