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Friday, December 27, 2013

What is Diversion? -- Part One

By: Sean Farrelly

This blog post is the first of a two part series discussing the various forms of "diversion" offered for most DC misdemeanor crimes.  

When an individual is charged with a criminal offense in Washington, DC, in most cases a plea offer is made by the prosecutor.  For a majority of misdemeanor offenses and occasionally in felony matters, the plea offer made by the government will be an offer of what is known as “diversion.”

Diversion is a method by which an individual can resolve his or her case short of conviction.  There are many different types of diversion, including, DC Traffic Diversion, STET Agreements, Deferred Prosecution Agreements, Deferred Sentencing Agreements, Drug Court and Mental Health Court.  Each type of diversion comes with its own advantages and disadvantages. DC Traffic Diversion, STET Agreements and Deferred Prosecution Agreements will be discussed in detail in this blog post.  Deferred Sentencing Agreements, Drug Court and Mental Health Court will be discussed in Part Two.

DC Traffic Diversion is offered to many individuals charged by the DC Office of the Attorney General (“DC OAG”)  The crimes eligible for DC Traffic Diversion include, but are not limited to, Driving Without a Valid Permit, Operating a Motor Vehicle Without a License, Possession of an Open Container of Alcohol and Disorderly Conduct.  For the driver’s license related offenses, generally, the DC OAG will dismiss the criminal offense if the defendant is able to obtain a valid driver’s license and complete a certain number of hours of community service (generally between 8-24 hours depending on the facts of the case).  For the non-driver’s license related offenses, the government will dismiss the criminal offense if the defendant simply completes community service, pays a small sum of money and/or enrolls in some form of substance abuse treatment (for those charged with offenses related to alcohol and/or drugs).  It is important to note that not all individuals charged by DC OAG are eligible for DC Traffic Diversion.  Individuals with lengthy criminal histories may not be eligible for DC Traffic Diversion, even when charged with the most minor of offenses.  Further, there are a number of offenses brought by the DC OAG that are not eligible for DC Traffic Diversion, including Driving Under the Influence, Reckless Driving, Leaving after Colliding (hit and run) and Possession of an Unregistered Firearm.  If DC Traffic Diversion is offered, regardless of guilt or innocence for the crime charged, it is almost always advisable for a defendant to accept the offer because it is a guaranteed means to have the case dismissed and avoid a conviction and possible jail time.  In addition, DC Traffic Diversion requires absolutely no admission of guilt on the part of the defendant, something that makes DC Traffic Diversion even more appealing.

STET Agreements are offered by the United States Attorney’s Office in a very limited number of cases.  The word “stet” is Latin for “let it stand.”  A STET Agreement amounts to a suspension of the prosecution.  Generally, STET Agreements are only offered in cases where an individual is charged with Unlawful Entry (trespassing).  The STET Agreement is a contract signed by the defendant and government counsel.  The defendant agrees to stay away from the location where he committed the offense of unlawful entry and the defendant also agrees not to be rearrested for any other offense.  In return, the government agrees that if the defendant stays away from the location and remains arrest free, the case will return to court after 6 months and the case will be dismissed.  For the same reasons as DC Traffic Diversion, regardless of guilt or innocence for the crime charged, it is almost always advisable for an individual to accept a STET Agreement.  A STET Agreement also does not require any admission of guilt on the part of the defendant.

A Deferred Prosecution Agreement (DPA) is similar to the STET Agreement with a few differences.  DPAs are offered much more often than STET agreements.  A DPA is offered in most misdemeanor cases where the defendant has little or no criminal history.  The main exception is for domestic violence cases and serious traffic offense (e.g. DUI, Reckless Driving and Leaving After Colliding).  DPAs are not offered in domestic violence court.  A DPA is also a contract signed by the defendant and government counsel.  The defendant agrees to not be rearrested and also agrees to complete 32 hours of community service.  In some cases the defendant agrees to a stay away from the scene of the crime and/or a victim and also possibly agrees to pay restitution if the defendant stole or damaged property.  In exchange, the government agrees that if the defendant completes all the terms of the DPA, the government will dismiss the case after four months.  Just as with STET Agreements and DC Traffic Diversion, a DPA Agreement should almost always be accepted regardless of guilt or innocence as it too does not require an admission of guilt and is a guaranteed way to dispose of a case without a conviction or jail time.

It is critically important that you consult with a trained and experienced Washington, DC criminal defense lawyer before accepting any plea offer from the government, including offers of diversion.  An experienced criminal lawyer will be able to advise you on the pros and cons of accepting any plea offer.  Generally speaking however, it is usually advisable to accept diversion in most circumstances because diversion is one of the only ways to ensure that your case does not result in a conviction.

If you or someone you know is facing criminal charges in the District of Columbia, please contact Farrelly PC for a full and free consultation.  


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