News Post

FROM THE ALABAMA LAWYER: Avoid Conviction Through Settlement – The Rise of Deferred Prosecution

By George D. Flowers

Alabama has dramatically increased pretrial diversion programs. They now exist in criminal cases involving theft, driving under the influence (DUI), drug offenses, property offenses, traffic offense, sex offenses, domestic violence, and others. They almost all have a few common threads.

While we are focusing on pretrial diversion for DUI, but it is important to know where they came from.

Pretrial diversion programs are creatures of statute. Ala Code §§ 12-17-226 to -226.18. (1975). Though the legislature gave it no name, we will refer to it as the pretrial diversion program (PDP).

A pretrial diversion program is defined as “[a] voluntary option that allows an offender, upon advice of counsel or where counsel is waived in a judicial process, to knowingly agree to the imposition by the district attorney of certain conditions of behavior and conduct for a specified period of time upon the offender which would allow the offender to have his or her charges reduced, dismissed without prejudice, or otherwise mitigated, should all conditions be satisfied during the time frame set by the district attorney as provided in the agreement.” § 12-17-226 (7). This is a statutorily-authorized contract between the defendant and the prosecuting authority that, if all of the conditions of the contract are met, has a goal of the “charges [being] reduced, dismissed without prejudice, or otherwise mitigated….” Id.

The PDP grants the district attorney of each jurisdiction broad discretion in creating pretrial programs. After the Act was passed, there was a swell of municipalities passing ordinances to create their own pretrial programs. Generally, it allowed them to not divert fees to their local district attorney’s office. However, the various systems also had very little uniformity. There is no greater example in showing a lack of consistency between programs than regarding the offense of driving under the influence.

The first step in almost all diversion programs is paying an application fee. Application fees vary from place to place, and can be several thousand dollars. With hundreds of different of municipalities in Alabama acting as independent agencies with little to no oversight, it is virtually impossible to tell how these funds are collected or allocated within the municipality. How they are allocated in municipal cases is determined by each city’s municipal code. However, in cases which the pretrial programs are established by the district attorney, the “[r]emaining administration fees shall be allocated to the district attorney’s office. At the discretion of the district attorney, all administration fees paid by the offender pursuant to this division may either be paid to the district attorney, to be placed in the District Attorney’s Solicitor Fund, or if the district attorney and the clerk agree, may be paid to the circuit clerk of the jurisdiction for distribution to the District Attorney’s Solicitor Fund.” § 12-17-226.11.

There are several things that can be expected in the majority of pretrial programs. Typically, this entails waiving one’s right to a speedy trial, waiving one’s right to a jury, tolling of the statutes of limitations, the entry of a plea to the charge which is accepted if the defendant does not comply with the terms of his agreement, waiver of the right to appeal, the timely payment of fees pretrial fees, and an agreement that the prosecution will nolle prosequi or dismiss the case upon completion. It is also not unusual that the defendant be required to waive their right to privacy in health care and medical records in DUI or drug pretrial diversion programs.

One of the common pitfalls a practitioner or a citizen would experience is for those with a class A. driver’s license, otherwise known as a CDL. §§ 32-6-49.1 to -49.24. The holder of a CDL “shall not be eligible for a deferred prosecution program, diversion program, or any deferred imposition of judgment program.” § 32-6-49.23.

Furthermore, even if a person with a commercial driver license were to participate in a diversionary program, even one as common as defensive driving school (it is often forgotten that defensive driving school is a diversionary program), this could be viewed as a conviction for purposes of their commercial license. The Code of Federal Regulations defines a conviction involving a CDL as “[a]n unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person’s appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.” 49 CFR 383.5. Thus, even in those situations where one is able to circumvent the commercial driver’s license prohibitions against pretrial programs, if the final result is that the client paid court costs as a condition of dismissal, this could be considered a “conviction” under the CFR.

The DUI statute has been modified to allow ignition interlock devices, “a constant monitoring device that prevents a motor vehicle from being started at any time without first determining the equivalent blood alcohol level of the operator….” § 32-5A-191.4. Now, “[a]ny person charged in a district, circuit, or municipal court with a violation of this section or a municipal ordinance adopted in conformance with this section who is approved for any pretrial diversion program or similar program shall be required to install an ignition interlock device for a minimum of six months or the duration of the pretrial diversion program, whichever is greater, and meet all the requirements of this section and § 32-5A-191.4. A participant in a pretrial diversion program shall be eligible for indigency status if the program enrolls indigent defendants and waives fees for indigent defendants.” § 32-5A-191(y)(1). When these requirements are applied (and they exist in what is likely the majority of cases), it is possible that a person has an interlock device their vehicle for longer than they would have been required to if they were convicted. With many pretrial programs lasting a year or even several years, this is a tremendous financial, as well as personal, obligation to the defendant.

Those who are admitted to a pretrial can be subject to a wide range of requirements and expenses. Application fees of between $1,000 and $2,000 are not uncommon. This application typically goes straight to the coffers of the office of the district attorney or municipality depending on the prosecuting jurisdiction. Then a defendant will typically be required to pay a processing fee of $150, victims impact panel fee of $35 to $100, and a court referral evaluation fee of $75. While they complete the pretrial program, they may also have a monthly drug testing fees of $30 to $60, and they may have supervision fees around $40 per month.

The costs can vary wildly with court referral drug and alcohol programs. The defendant is evaluated based on a criterial from the Administrative Office of Courts and this criterion determines what level of treatment the defendant must complete. Most people are required to complete what is known as a Level 1 or Level 2 program. Level 1 programs take on average six months to complete and cost slightly less than $200 for class enrollment. Level 2 programs will typically be six to 12 months and cost in the range of $300 to $400 for enrollment. However, in some cases, a defendant may be subject to an intensive outpatient program or an inpatient program. These Level 3 court referral programs come from a short list of facilities approved by the state and often cost thousands of dollars.

The initial expense for installation of an ignition interlock varies with each distributor, and it seems to average between $200 and $300, with an addition $100 monthly monitoring fee. This also does not include special servicing fees if an interlock warning is triggered. Finally, if an ignition interlock is required the person must obtain an interlock “Scarlet Letter” license which is an additional $150 and then pay another fee for a replacement license once they have that restriction lifted. Thus, if a defendant’s pretrial program lasts for 12 to 24 months, as many of them do, you could be easily looking at up to just under $3,000 on top of all other fees.

Finally, a person is almost always going to be expected to pay the costs associated with the action, namely court costs, bond fees, subpoena fees, and other, and these other costs are typically not calculated until the conclusion of the case. Court costs can vary dramatically, from hundreds of dollars to thousands, depending on whether the matter is resolved at a municipal court, district court, or in the circuit court and the number of charges (often companion tickets) the person received. It is not unusual that court costs for a DUI and companion tickets could range from $500 to $1,500.

It is fair to say that most people who enter into a pretrial diversion pretrial program do so because they are desperate for a path out of the trouble they are in. For many people, it is an opportunity for a second chance. It is undisputed that the ramifications of a conviction for any number of offenses can have lifetime consequences on a person’s career and future opportunities. However, many people enter these programs without full knowledge of the requirements that will be placed upon them or the gravity of the financial requirements.