Written by attorney Michael W Modica

Juvenile Criminal Topics

  1. What kind of juvenile cases do you handle in Family Court?

Juveniles can be arrested for the same offenses as adults. I often represent juveniles for DUI and traffic related offenses, drug related offenses, whether it is for simple possession of drugs, or drug dealing. Other cases include theft, criminal mischief, terroristic threatening, offensive touching, assault, and sex offenses. Finally, school offenses are a major category of prosecutions in Family Court that I handle.

  1. Are juvenile cases handled differently in Family Court?

Prosecutions in Family Court follow the same general process as adult prosecutions. After the arrest, the juvenile is scheduled for an arraignment in Family Court where the client will plead "not guilty." Following the "not guilty" plea, the court will schedule the matter for the next hearing. Depending on the charge, the client will either be scheduled for a case review proceeding, or a trial. A case review proceeding is an opportunity for the parties to discuss the case for purposes of a plea agreement resolution. If the case is not resolved at the case review, then the matter will be scheduled for trial at a later date.

Family Court juvenile cases are prosecuted by the Deputy Attorney General from the Department of Justice. Cases are prosecuted much the same way as an adult prosecution. The major difference is that the ultimate goal in Family Court juvenile prosecutions is to address the "best interest of the child" so that the juvenile will change his behavior and be deterred from future offenses. The Family Court judge will determine whether the child requires services from various social service agencies in order to support this objective. The Family Court judge has a broad array of remedies to address this objective, ranging from first offender diversion type programs to supervised probation, placement in a group home, or placement in a juvenile detention facility. A Family Court judge can order a mental health and/or substance abuse evaluation and direct the juvenile to follow all recommendations. A juvenile can also be ordered to engage in community service as part of the sentence. In almost all cases, the student is ordered to attend school, obey a curfew and follow all household rules.

  1. What are "school offenses" and how are they handled?

Criminal offenses that occur while a child is in school are placed on a "school offense calendar." UnderDelawarelaw, school administrators are required to report certain school offenses, such as for violent crimes, or possession of drugs or weapons, to police authorities. Students arrested for school offenses are then placed on the school offense calendar. The prosecutor works in conjunction with the school administration to address the criminal charge and determine an appropriate resolution. Often, if it is a first offense, a student will be eligible for school diversion resolution. Participation in the school diversion program allows the student to avoid a conviction and sentence by a judge. Basically, the school diversion program involves meeting with a caseworker, and compliance with certain recommendations that may be appropriate for the particular situation. Recommendations can include mental health evaluation and treatment, substance abuse evaluation and treatment, anger control counseling, participation in anti-bullying programs, community service, etc. If the student successfully completes the school diversion program, the case is dismissed without an adjudication of delinquency.

School offenses are serious because a school has a right to recommend the expulsion of a student through its administrative expulsion procedures regardless of what happens in the Family Court. Therefore, any offensive that occurs in the school can expose a student to expulsion from the school, in addition to any penalties which may be imposed by a Family Court judge.

A parent should understand that a child has certain due process protections that must be afforded by a school district before it can expel a student. These rights include the right to fair notice, a right to a due process hearing, and the right to an attorney at that hearing. The school board must vote on whether to expel a student. If a student is expelled, that student has a right to appeal the decision to the State Board of Education.

  1. What are the repercussions of a juvenile prosecution?

The immediate consequences of a juvenile prosecution is that a Family Court judge can sentence the child to sanctions including supervise probation, placement in a group home, or placement in a juvenile facility. A juvenile prosecution can also affect an individual's driving privileges. For instance, a conviction for possession of drugs, including marijuana, will result in a suspension of that person’s driving privileges. A conviction for DUI can result in a suspension of that person's driving privileges until the age of 21. A conviction for certain offenses may cause a student to be placed on an Abuse Registry or Sex Offense Registry which will preclude a person from employment in certain occupations, such as education, healthcare, or child care. While an arrest and/or conviction as a juvenile is supposed to be confidential, the arrest and/or conviction will be noted on a persons permanent arrest record, unless it is expunged.

  1. Can a juvenile prosecution affect my ability to obtain a license?

Yes. A conviction for certain offenses, such as for drug-related offenses, or DUI, will automatically result in a license suspension. Moreover, a Family Court judge has discretion to preclude a juvenile from driving as a condition of a sentence. Lastly, if a student is expelled as a consequence of a school offense, that student’s license will automatically be suspended.

  1. Can a juvenile have his record expunged?

Yes, in certain circumstances if a juvenile is found not guilty of an offense, or the charge is otherwise dismissed, he can petition to have his record of arrest expunged. The court will grant that petition unless the individual has other juvenile or adult convictions. However, even if an individual is convicted of a juvenile offense, the law provides that the record of a juvenile conviction can be expunged if the individual is applying to enter the military, or if three years has elapsed without any further arrests. In order to expunge a juvenile criminal history a Petition for Expungement must be filed in Family Court.

  1. Can a juvenile be prosecuted as an adult?

Yes. The law provides that a juvenile must be prosecuted as an adult for certain offenses, such as for murder, rape, or possession of a firearm during the commission of a felony. In addition, if a juvenile has a serious history of offenses, the prosecutor can attempt to have the juvenile treated as an adult by filing a motion declaring that individual to be not amenable to Family Court services. The court will conduct a non-amenability hearing to determine if there are any other services that can be afforded to the juvenile. If he has exhausted available services, and there are no additional services available to the individual that have not already been exhausted, then the court can decide that the juvenile should be treated as an adult. At that point, the juvenile’s case is transferred to the Delaware Superior Court where it will be handled as if he is an adult. If the juvenile is found guilty he will be sentenced as if he was an adult.

  1. Does the court have first offender programs?

Yes, there are various programs which exist in order to allow a first time offender to avoid the consequences of a prosecution and conviction. For instance, a juvenile charge with a school offense may be able to have his case resolved through the school diversion program. Under the school diversion program, instead of a prosecution, the student is required to meet with a caseworker and to follow all recommendations. Recommendations can include public service, counseling, writing an essay, writing a letter of apology, etc. If the student successfully completes the school diversion program then the case is dismissed without a conviction. There are similar programs for drug offenses, and for domestic violence offenses.

A prosecutor may also allow a juvenile’s case to be resolved by “Probation Before Judgment." Basically, under PBJ the juvenile will plead guilty to the offense, but the conviction is deferred while the juvenile is placed on unsupervised probation for a period of time. The court can impose conditions for PBJ which can include participation in certain programs. If the juvenile successfully completes the unsupervised probation, the criminal case is dismissed without a conviction.

Lastly, in certain criminal cases the matter can be referred to Arbitration. Arbitration is a process involving meeting with an arbitrator who discusses the juvenile’s behavior. The arbitrator can make a determination to dismiss the case if satisfied that the juvenile deserves the benefit of the doubt, and if it is clear that it was an isolated instance of bad judgment, and that the juvenile has accepted responsibility and expressed remorse for his behavior.

The prosecutor must agree that the juvenile is eligible for any of these diversionary programs.

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