Written by attorney Richard Joseph Albanese

Deferred Prosecution in Illinois and Wisconsin: A Second Chance for a First Offender?

Many people contact the Richard Albanese Law Office and ask if a lawyer here can get their speeding ticket or criminal case "thrown out" or “taken care of". Perhaps these ideas come from movies or TV, but in reality generally speaking the only way a case is dismissed is if a motion to quash an arrest is argued successfully and the State has insufficient evidence to proceed or if the case falls into a category of deferred prosecution.

Cases are not just “thrown out" as police, prosecutors and the criminal justice system have a great deal of resources invested in a case coming into the court system. The success of a motion to quash arrest and suppress evidence depends on whether the police committed a violation of a person’s Fourth Amendment rights under the United States Constitution by conducting an unlawful search and seizure. This type of motion will often not be feasible to file unless the evidence supports it and the skilled defense attorney believes it will have a high rate of success. There is another option available in both Wisconsin and Illinois for the dismissal of cases known as deferred prosecution. Although the specific deferred prosecution programs vary state to state, county to county, and even village to village across Wisconsin and Illinois the overriding concept is the same, giving first offenders a second chance to keep a clean criminal record. There are generally written guidelines outlining the criteria for what crimes can be considered for deferred prosecution but the discretion whether to offer deferred prosecution always rests with the Prosecutor handling the case as they are the party bringing the charges forward. Deferred prosecution is never an automatic disposition and generally requires a knowledgeable defense attorney to negotiate for it. In both Illinois and Wisconsin there are statutory categories of cases including Felonies, Misdemeanors and Ordinance Violations that are eligible for deferred prosecution. Although not an exhaustive list, the types of cases covered include: Possession of Controlled Substance, Possession of Cannabis, Prostitution, Domestic Violence, Underage Consumption/Drinking of Alcohol, Retail Theft, and even Speeding Tickets for younger offenders. Generally speaking, when a deferred prosecution is offered to a defendant there is a requirement that the defendant complete remedial educational classes depending on the offense, treatment for drug or alcohol abuse, and in some instances community service will be required as well. If the defendant successfully completes the terms of what the Prosecutor asks for the case will then be dismissed with no further repercussions.

This type of disposition is very favorable to first offenders who made a mistake and don’t want it to follow them as they enter the workforce applying for jobs. This disposition may also be invaluable to immigrants who are trying to become citizens of the United States as many criminal case dispositions can interfere with this process or result in deportation.

The criminal justice system recognizes people often make foolish mistakes, not realizing the consequences of their actions and Prosecutors are not out to punish every citizen with the maximum penalties available in every case. Deferred Prosecution alleviates the number of cases a court has to deal with and truly gives defendants a second chance in the Criminal Justice System.

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