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Monday, December 30, 2013

What is Diversion? -- Part Two

By: Sean Farrelly

This blog post is the second 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 were discussed previously in Part One.  Deferred Sentencing Agreements, Drug Court and Mental Health Court are discussed in detail below.

A Deferred Sentencing Agreement (DSA) is virtually identical to a DPA with one very important distinction.  In contrast to DC Traffic Diversion, STET Agreements and DPAs, DSAs require an admission of guilt.  As with DPAs, DSAs are contracts between defendants and the government.  DSAs also require individuals to remain arrest free and complete community service.  DSAs are offered for virtually all misdemeanor offenses in which defendants have limited criminal histories, including domestic violence offenses and major traffic offenses.  However, as stated previously, DSAs require an admission of guilt.  An individual who wishes to enter into a DSA must plead guilty to the underlying offense upfront.  Then, as indicated in the title, sentencing is deferred for a period of six months to one year.  During that period of time, the defendant must complete all required conditions, which usually includes at a minimum community service.  DSAs also often require additional conditions such as anger management for domestic violence cases and various forms of alcohol awareness courses for DUI cases.  If an individual abides by all conditions within the DSA when he returns to court on the previously set sentencing date the government will allow him to withdrawal the guilty plea and then dismiss the case.  The decision of whether or not to accept a DSA is much more difficult than with the other forms of diversion because entering a guilty plea has numerous additional implications and consequences.  Further, if an individual is not able to successfully complete the terms of the DSA, the conviction will stand and the person will be sentenced.  The decision whether to reject or accept a DSA is one that requires significant contemplation and counsel from an experienced Washington, DC criminal defense lawyer.  However, despite some of the risks associated with entering into a DSA, it is often advisable for an individual to enter into the agreement because the significant upside is that if the DSA is completed satisfactorily, the individual can assure that they will not have a conviction on their record moving forward.

Drug Court is another form a diversion.  Drug Court is for individuals who suffer from substance abuse problems.  In order for an individual to enter into Drug Court, he or she has to be screened by Pretrial Services Agency, in order to verify a substance abuse problem.  Once the substance abuse has been verified, the individual is able to enroll in Drug Court.  Once enrolled, the individual is offered either a Deferred Prosecution Agreement (DSA) or Deferred Sentencing Agreement (DSA) depending on the charged crime and the individual’s criminal history.  The major difference between a Drug Court DPA/DSA and a normal DPA/DSA is that instead of completing community service, for a Drug Court DPA/DSA, an individual must regularly drug test negative and must enroll in and complete some form of drug treatment program.  Although the initial Drug Court terms are usually the same four and six month term as with other DPAs/DSAs, if an individual is unable to test negative for illicit substances, or if an individual does not comply with drug treatment, the term of Drug Court can be extended, sometimes indefinitely.  Drug court is often difficult to complete for most individuals, especially those with severe substance abuse problems, however, if completed successfully, Drug Court can carry the same benefit of having a case ultimately dismissed.  In addition, those individuals in need of drug treatment are also able to take advantage of treatment.

Mental Health Court is another form of diversion offered.  Mental Health Court operates almost in an identical fashion to Drug Court, with the key difference being those individuals eligible for Mental Health Court must have a verified mental illness instead of (or in addition to) a drug abuse problem.  Just as with Drug Court, an individual in Mental Health Court is offered either a DPA or DSA.  Again, in lieu of community service hours, an individual in Mental Health Court need only comply with whatever mental health services and treatment are recommended.  Often, as with Drug Court, what begins as a four or six month DPA or DSA often turns out to be a much longer Mental Health Court term, but if an individual is able to successfully complete Mental Health Court, the case is dismissed and an individual can benefit from often long overdue and/or much needed mental health services.

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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