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Deferred Prosecution

First time offenders for some drug and alcohol offenses may be eligible for deferred prosecution through a court approved program. This means that while you are in a “probationary period" (either six months or a year) during which you take classes that educate you about either drugs or alcohol, your drug or alcohol charges are still pending. Once you complete the probationary period and successfully complete the requirements, your case will be dismissed and you will be eligible for an expunction of your record (record expungement). The following is to be used as a reference only. The Felony Drug Diversion Program: First time felony drug offenders who participate in a court approved drug rehabilitation program have the opportunity to avoid the lifelong stigma of having a felony drug conviction on their record. If, after one year, the client successfully completes all of the program guidelines, the client will return to court and the charge will be dismissed. At this time, the client may also file for an expungement or have an attorney do so on their behalf. Who is Eligible? Someone charged with (felony): - Possession of Cocaine: must have been charged with less than 3 grams. - Possession of Marijuana: must have been charged with less than 4 ounces. - Possession of a Hallucinogenic Drug: - LSD: must have been charged with less than 10 dosage units. - Mushrooms: must have been charged with less than 3 grams. - Ecstasy: must have been charge with less than 10 dosage units. - Prescription Drug Fraud: must have been charged with possession of less than 100 dosage units (with 3 or less prescription violations).

The violations must occur during a 30 days period. *In addition to being charged with possession of one of the above drugs, there must also be no evidence of distribution, the defendant must have no previous criminal convictions, and no prior participation in a deferral program. In Order to be Accepted into and Remain in the Program the Client Must: - Sign an admission of guilt. - Submit to random drug screenings. - Receive a drug assessment and follow any treatment guidelines. - Complete 225 hours of community service. - Have monthly meetings with a case manager to discuss progress. - Pay the program fee (usually $600.00) (treatment costs are not included in this). - Continue to work or be enrolled in school. - Not be convicted of any new felony or misdemeanor charges while in the program (which is a form of probation). - Resolve any pending charges before termination of the case through the program. *Other special conditions may apply. Misdemeanor Drug Diversion Program: As with the Felony Drug Diversion Program, if a client complies with the requirements of a court approved drug diversion program, their charge will be dismissed after a one year probationary period and the client can avoid the stigma of having a drug charge on their record. Who is eligible? A client must have one of the following charges pending: - misdemeanor possession of a controlled substance that is within schedules II through VI***; or - possession of drug paraphernalia; or - misdemeanor maintaining a dwelling for controlled substances. ***Schedule I drugs (a conviction of which, would not be eligible for deferred prosecution) include the most dangerous drugs that carry a high risk for addiction and no medical usage. Schedule I Includes the Following Drugs: Ecstasy, LSD, and heroin. Schedule II substances have a high risk of abuse but some may also have legitimate medical uses. Schedule II Includes the Following Drugs: opium, cocaine, and amphetamines. Schedule III drugs are less dangerous than the drugs included in Schedule II, but still have an intermediate risk of abuse. Schedule III Drugs include: steroids, ketamine, testosterone. Schedule IV drugs have a risk of dependency that is slight and have commonly accepted medical uses. Schedule IV Drugs Include: Valium, sedatives, tranquilizers, and Xanax. Schedule V drugs have a very low risk of dependency and include drugs such as Tylenol with Codeine. Schedule VI drugs have no commonly accepted medical uses and also have a low risk of dependency. Marijuana is a Schedule VI drug.

See NC General Statutes 90-90 through 90-94 In Order to be Accepted into and Remain in the Program the Client Must:

  • Be at least 16 years old. - Have no previous criminal convictions and must not have participated in any other deferral programs. - Admit guilt. - Complete all the requirements and classes conducted by the drug diversion from. - Pay the program fee (usually $200) and pay the court costs to the Wake County Clerk of Court. - Not be convicted of any misdemeanor or felony offense during the period of deferral and resolve any new pending charges before the case can be successfully terminated. - Continue to work or be enrolled in school. - Submit to random drug screenings upon request and pay for any such screenings. *Other special conditions may.

After Successful Completion: If the client complies with the requirements of the drug diversion program, after a one year period, the original charge will be dismissed in open court. If the defendant is eligible for expungement, the defendant may then file for it or have an attorney file on their behalf. If during the one year period, the defendant violates any of the conditions of the drug deferment program or is convicted of any criminal offense, a judgment of guilt will be entered and a sentence will be imposed. Alcohol Education Deferment Program: This program provides first-time misdemeanor alcohol offenders with an opportunity to be free from the stigma of having an alcohol offense on their criminal record while allowing them to gain the life skills to avoid developing an alcohol dependence. Who is eligible? Someone who has one of the following pending charges: misdemeanor possession of alcohol under the age of 21, possession of a “fake ID, aiding and abetting under age possession of alcohol, and selling alcohol or tobacco to minors; AND

Someone who is at least 16 years old; Someone who has no previous criminal convictions, and no prior participation in any deferral programs. ***Someone who has been convicted of any drinking and driving offenses is not eligible. In Order to be Accepted into and Remain in the Program the Client Must: - Admit guilt; - Successfully complete alcohol education classes conducted a court-recommended program; - Pay the program fee and the court costs to the Wake County Clerk of Court; - Not be convicted of any misdemeanor or felony offense during the period of deferral; - Resolve any new pending charges before the case can be successfully terminated from the program; - Remain in school or be working while in the program; - Submit to an observed urinalysis for the detection of controlled substances upon request, and pay for the test; and - Abide by reasonable requests made by Judicial Specialist. *Other special conditions may be included. After Successful Completion: If all agreed conditions are met after 6 months, the original charge will be dismissed in open court in the presence of the defendant. If the defendant is eligible for expungement, the defendant may file or have an attorney file for it at this time. If at any time during the 6 month period the defendant violates any of the terms of the program or is convicted of any criminal offenses, a judgment of guilt will be entered and sentencing will then occur.

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