"What is Deferred Prosecution?"

Deferred Prosecution (DP) is a program by statute that allows a qualified person charged with a misdemeanor offense (usually but not always DUI) to an opportunity to avoid a conviction for that offense. A DP is not for everyone; it can only be used once in a lifetime, and comes at great financial and personal expense.

A person “petitioning” the court to allow her to enter into a DP must agree to several conditions. First, she must agree that she suffers from alcoholism (or other qualifying condition, such as mental illness), and that without treatment she is likely to re-offend. She must enroll in and complete a two year outpatient treatment program with a certified agency, and pay the costs (usually several thousand dollars). She must drive only with an Ignition Interlock Device in her car for at least one year – and if she refused the breath test, she may have to obtain an Ignition Interlock License (IIL) as well.

Further, she waives her right to trial, and must agree to pay court costs, including restitution if applicable. Following the completion of the two year program, the case will remain open for review for no less than three years. During that time, she must refrain from alcohol use, have no law violations, drive only with license and insurance, and if recommended by her treatment agency, continue to attend self-help meetings to be determined.

If she completes the program with full compliance, after five years the DUI charge is dismissed. It will, however, remain on her permanent record, and serve as a prior for sentencing purposes should she be charged with another DUI within seven years of the original arrest date of the first offense. If on the other hand she fails to comply with the strict conditions of the DP at any time within that five year period, the court may revoke the DP, in which case the judge will simply read the police report to determine whether or not she's guilty of the original defense, and if found guilty, she will be sentenced per applicable DUI sentencing standards.

Because of these steep costs, a person who petitioning for a Deferred Prosecution is usually someone with one or more prior DUI offenses within 7 years, who is therefore looking at steep consequences including extended jail time. Sometimes, the motivating factor is a personal interest that person determines cannot be risked with a possible DUI conviction – and end to their military career, for example, or entry into Canada.

For these reasons, anyone considering a Deferred Prosecution as a resolution to their DUI charge should carefully consider everything involved, and only with the counsel of an experienced and knowledgeable DUI attorney, before deciding if this is the right move for them.


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