Written by attorney Linda Medeiros Callahan

Deferred Prosecutions for DUI or Physical Control Offenses: The Good, the Bad, and the Ugly

Is a deferred prosecution right for you? A deferred prosecution is option for people charged with Driving Under the Influence (DUI) or Physical Control, if they have never had a deferred prosecution before in their lifetime for that type of crime. A deferred prosecution for people who committed the crime because they suffer from alcohol/drug dependency or a mental health condition. They may enter a deferred prosecution treatment program instead of being prosecuted for the crime. If the deferred prosecution program is successfully completed, the criminal charge will be dismissed at the end of the five-year period, allowing the person to avoid jail and certain other penalties associated with the criminal charge.

Do you qualify for a deferred prosecution? A person who sincerely believes they are innocent of the crime, or who sincerely believes they do not suffer from a chemical dependency or mental health condition is not eligible. To qualify, a person must admit to, and be diagnosed as, suffering from alcohol or drug dependency, or a mental health condition. The diagnosis must be made by a state certified chemical dependency agency, or certified mental health professional. Further, one must assert that if the dependency (or mental health condition) is untreated, the likelihood of reoffending would be high. The court will require that the agency or mental health professional commit to treating the person according to a written plan approved by the court.

What are the minimum treatment requirements? A two-year chemical dependency outpatient treatment program must include:

A minimum of 72 hours of treatment within a maximum of 12 weeks (first phase):

· The first 4 weeks of must consist of at least 3 sessions a week; each group session must last at least one hour; each session must be on separate days of the week.

· Individual counseling sessions at least once a month or more;

· Self help group attendance in addition to the 72 hours;

The patient must receive ongoing treatment or support after the above. This includes monthly counseling sessions for the rest of the 2-year program and at least 2 self-help groups meetings per week. (Mental health treatment programs are not statutorily defined.)

You give up rights to enter a deferred prosecution. By entering into a deferred prosecution, you give up your right to a speedy trial by an impartial jury, to testify, to call and question witnesses, and to present evidence or a defense. The person petitioning the court for a deferred prosecution must agree that the facts in the police report are admissible and sufficient to find them guilty, and they must agree the police report will be used against them to support a guilty finding if the program is revoked.

A deferred prosecution program lasts for five years. After two years of treatment, then three years of probation, the criminal case will be dismissed. However, if the person violates the deferred prosecution the court will hold a hearing to determine if the deferred should be revoked. If it is revoked, the judge will read the police report, probably find the person guilty, and impose punishment. Punishment includes, jail, fines, loss of license, ignition interlock requirements, and probation. A deferred prosecution may appear to be a way to avoid punishment, but the program is very difficult. A judge may revoke the deferred prosecution for a seemingly minor violation. For example, a deferred prosecution could be revoked if the person:

· Consumed ANY alcohol or non-prescribed drugs, including, but not limited to common substances containing alcohol (e.g., cough syrup, mouthwash, or even vanilla extract)

· Committed a new criminal law violation (a convicted of the new criminal law violation is not required)

· Drove without a valid license or proof of insurance

· Drove without a required ignition interlock device

· Submitted a positive breath test on an ignition interlock device

· Missed any sober support meetings, treatment counseling sessions, or probation appointments

· Failed to appear for a court hearing

· Has not paid required court/probation fees

Consider "the Good, the Bad and the Ugly" before deciding on a deferred prosecution:


· No conviction: if successfully completed, the charge will be dismissed.

· No jail time: Successful completion avoids jail.

· No fines: The maximum fine for a DUI or Physical Control is $5,000, plus costs and assessments. For a deferred, there is a $150 filing fee, court costs, a BAC and probation fee.

· No driver’s license suspension or revocation: Successful completion avoids a license suspension or revocation from the court, and from DOL if “Intent to Seek Deferred Prosecution" is filed with DOL in a timely manner following the arrest. Caution: this does not apply to commercial driver's licenses.

· Treatment may have been ordered anyway: If a person's assessment recommends treatment, the court will order that the treatment be completed as a condition of probation if convicted of DUI or physical control. The court can impose additional jail time if the person does not comply.


· You only get one in your lifetime: A person may be placed on a deferred prosecution only once in their lifetime for a Title 46 violation (e.g., DUI or Physical Control). THIS IS WHY IT IS IMPORTANT TO CAREFULLY CONSIDER WHETHER IT IS WISE TO ENTER A DEFERRED PROSECUTION IF THE MANDATORY MINIMUM PENALTIES FOR A FIRST OFFENSE APPLY. Once the deferred prosecution “card" has been played, whether successfully completed or not, it is not an option in a subsequent offense. Subsequent DUI or Physical Control convictions carry increasingly severe mandatory minimum jail sentences and other penalties if committed within seven years. So, it may be better not to use a deferred prosecution for a first offense, but rather, to “save" it for a future DUI or Physical Control charge, when the penalties may be more severe.

· Difficult and time consuming: Time commitments are significant. Even people who are fully committed to the program may have difficulty balancing the treatment sessions, sober support meetings, probation appointments and possible court appearances with family and work commitments. Also, even those fully committed may have difficulty maintaining complete abstinence for five years. Those less dedicated may find the restriction very difficult to follow.

· Treatment costs: Treatment for two years can cost several thousand dollars if public assistance or medical insurance coverage is not available.

· Ignition interlock device requirements: Until January 1, 2011, the DOL requires a person in a deferred prosecution program to obtain an ignition interlock driver’s license for two years. After January 1, 2011, an ignition interlock device will be required (but not an ignition interlock driver’s license) for AT LEAST one year. An ignition interlock device prevents a vehicle from starting if it detects alcohol when the person blows in it to start the vehicle. The ignition interlock provider will report to the court any attempts a person makes to start the vehicle with alcohol in his or her system, which could result in the deferred prosecution being revoked. Consuming common items including chewing gum, mints, mouthwash, cold/cough syrups, or smoking cigarettes prior to providing a breath sample may cause the device to give positive results, even if the person has not been drinking an alcoholic beverage. The ignition interlock device must be calibrated by the provider every 60 days.

· A deferred prosecution isn’t the only way to keep your driving privileges: A person can apply for an ignition interlock driver’s license (IIDL) immediately after being convicted of a DUI or Physical Control. Once the IIDL is received and the ignition interlock device is installed, a person with a license suspended or revoked for DUI or Physical Control can legally drive. If the application for the IIDL is made in a timely manner, it is possible that the person may receive the IIDL right away and not lose even a day of driving.


· Still counts as a PRIOR OFFENSE: A deferred prosecution counts as a prior offense, for sentencing purposes, on a subsequent conviction for DUI or Physical Control, committed within 7 years. This means that the later offense is subject to more severe penalties because the deferred prosecution is a prior offense--even if the deferred prosecution program was successfully completed and the matter dismissed!

· Admission of guilt and loss of trial rights: To enter into a deferred prosecution, a person must agree that the facts in the police report are sufficient to find guilt. A court will not grant deferred prosecution for a person who sincerely believes he or she is innocent of the charges. Remember, if the deferred prosecution is revoked, the judge will simply read the police reports, and most likely, enter a finding of guilt based on the facts in the police report. There will be no jury trial or opportunity to present a defense if the deferred prosecution is revoked.

· Admission of alcoholism or drug dependency: The deferred prosecution program is only available to those who admit they have a substance abuse problem or suffer from mental health problems. That admission is a matter of public record. Even if a person successfully completes the deferred prosecution program, and the matter is dismissed, the criminal justice system deems the person a “recovering" alcoholic/addict for the rest of his or her life.

This legal guide is not intended to teach anyone the law, nor is it a substitute for the advice of a lawyer in possession of full disclosure of the facts relevant to an individual’s particular situation. This legal guide does not create an attorney-client relationship between the writer and any reader.

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