Deferred Prosecution Program

As an alternative to prosecution, people charged with driving while under the influence or being in physical control of a motor vehicle while under the influence should consider the possibility of petitioning for deferred prosecution. The program was initiated in 1975 for individuals who suffer from addiction to alcohol and who would prefer to undergo 5 years of abstinence, including a voluntary two year treatment program, as an alternative to facing the potential mandatory penalties and expenses of prosecution for an alcohol offense.

Every person who is convicted of an alcohol related traffic offense faces a mandatory jail sentence, a substantial mandatory fine, and loses their privilege to drive for 90 or more days. As a condition of a restoration of their driving privileges and of their conviction, all drivers are required to obtain an alcohol evaluation and attend some form of alcohol counseling. If the driver’s alcohol evaluation reveals “insufficient evidence of abuse,” the driver is merely required to complete an eight (8) hour educational program called an alcohol/drug information school. If the evaluation reveals “alcohol abuse,” the driver is required to complete the first 60 days of a “treatment program” before being allowed to apply for re-issuance of licensing. Treatment programs typically run for 12 to 24 months, and cost $1,600 - $2,400.

If a defendant declares their alcoholism and is accepted into a deferred prosecution program, their case is removed from the criminal trial process and “placed on hold” for the five(5) years that the defendant participates in treatment and probation at a treatment cost of $3,800 - $7,500. If the defendant successfully completes the two-year treatment program plus three (3) additional years of probation, the criminal case is dismissed without the imposition of jail, fine, further probation, license suspension, or further criminal record. However, it will still be counted as a conviction in computing mandatory sentences if the defendant receives an additional DUI citation within seven (7) years.

The statute outlining deferred prosecution programs requires a minimum 2-year treatment plan consisting of:

1. Total abstinence from alcohol for two years; and

2. At least two self-help recovery group meetings (i.e., AA, NA or Union Club meetings) per week for the full two year period; and

3. Initial intensive treatment consisting of:

a. Three (3) weeks of inpatient treatment followed by 8 weeks of at least weekly outpatient contact; or

b. Six to twelve weeks of intensive outpatientcounseling which usually consists of classes 3 to 5 evenings per week followed by 14 to 20 weeks of at least weekly outpatient contact; and

4. Follow-up counseling sessions at least once per week through week #26 (i.e., the next 14 to 20 weeks); and

5. Follow-up individual or group counseling sessions at least once per month from week #27 through week #104 (i.e., the final 18 months).

Obviously, the program offers very substantial benefits; however, it is a difficult and expensive program and should not be undertaken unless the defendant has an admitted alcoholism problem and a genuine desire to quit drinking permanently. If the defendant does not remain totally abstinent for the two year period of treatment, or does not fully comply with the extensive counseling requirements of treatment, the case is returned to court for sentencing on the original charge (one of the conditions of sentencing is usually a new five (5) years of probation and full compliance with any alcohol program deemed appropriate by the probation office). Failure to successfully complete a voluntary deferred prosecution program often results in the defendant’s participation in a second alcohol treatment program with full charges for the repeated program.

PROS – Reasons to Apply

  1. Addresses your alcoholism: If you need help, you will very likely be required to complete a two (2) year treatment program anyway.
  2. Avoids jail: Jail is stayed (continued) and completely avoided upon successful completion of treatment plus probation.
  3. Avoids fines: Fines (except $125 BAC fee) are stayed (continued) and completely avoided upon successful completion of treatment and probation.
  4. Avoids trial: Trial is stayed (continued) for five (5) years for completion of treatment and probation. At the successful end of treatment and probation a dismissal is entered closing the prosecution.
  5. Avoids driver’s license suspensions (except BAC refusals or CDL disqualifications): Drivers face ninety (90) days to six (6) years of license suspension that will be stayed and later dismissed upon successful completion of treatment and probation.
  6. Avoids special insurance expenses: Before a suspended license may be reissued, DOL requires an SR-22 insurance policy be filed, and that adds approximately $25-$100 per month to your insurance costs for the first three (3) years you are re-licensed. Since deferred prosecution avoids suspension (except BAC refusal & CDL cases) you may also avoid the more costly insurance.
  7. Avoids major traffic conviction: If you receive three (3) major traffic convictions in a five (5) year period, DOL declares you to be an “habitual traffic offender” and revokes your license for seven (7) years in addition to any other suspensions you suffer. Habitual offenders receive mandatory jail sentences 10 – 180 days, every time stopped.
  8. Reduces attorney fees: Deferred prosecution avoids several court appearances and 1 – 3 days of trial time, which will usually double your expense for attorney fees.
  9. Canada Travel: If you are convicted of DUI you become “unacceptable” for entrance into Canada. A deferred prosecution is not a conviction and should avoid problems at the Canadian border.

CONS – Reasons Not to Apply

  1. It’s a long, hard program: It takes a huge commitment in time for counseling, probation and AA meetings. Total abstinence is not easy for a long time drinker.
  2. You can only request it once in a lifetime: Deferred prosecutions are no longer granted every five years, and you may want to save it for later charges with higher penalties. For example, a first DUI conviction carries mandatory minimum jail sentence of up to 2 days in jail, whereas, a second DUI conviction carries a mandatory minimum jail sentence of up to 135 days in jail (45 days hard time and 90 days of electronic home monitoring). Save your “get out of jail free card” until you really need it.
  3. You must admit your alcoholism: The law makes the program available only to self-declared alcoholics and not to defendants who merely want to avoid court consequences. Once you make a public declaration that you suffer from alcoholism, the “label” will follow you forever. Successfully completing treatment merely makes you a “recovering alcoholic.”
  4. Requires ignition interlock: Deferred prosecutions still require the installation of an ignition interlock device in any vehicle you drive at a typical cost of $780/year per vehicle.
  5. Higher probation fees: Deferred prosecutions always require five (5) years of probation supervision at a typical cost of approximately $1,500 - $3,000, whereas, the cost of other types of probation may be as little as $150-$200.
  6. Substantial counseling costs: Deferred prosecution programs cost $3,500 - $6,000 for two (2) years of counseling, whereas, other shorter programs may cost as little as $150.
  7. Substantial time commitment: It’s not an easy way to “save your license.”
  8. CDL license disqualification: If you have or expect to apply for a commercial driver’s license, a deferred prosecution not only does not “save” your CDL privilege, it actually causes a disqualification for at least one (1) year, even though it protects your personal driver’s license.