Client Information

Deferred Prosecutions

Most misdemeanors involve substance abuse, usually alcohol. The legislature is interested in preventing future crimes by giving those with substance abuse problems an incentive to participate in treatment. This incentive is the deferred prosecution.

In broad strokes, a deferred prosecution is a five year program only for misdemeanors (including gross misdemeanors) that consists of two years of substance abuse treatment and three years of monitoring time. (There are other forms of deferred prosecutions related to mental health issues and criminal mistreatment of children. But substance-abuse-related deferred prosecutions are the most common.) The defendant must ask for the program, must admit that substance abuse was a factor in the alleged offense, and must not deny committing the offense. A court has discretion whether to allow the defendant into the program. If the court does grant a deferred prosecution, the defendant is not convicted of the crime.

For traffic crimes and infractions, a defendant can enter a deferred prosecution only once in a lifetime. But for all other crimes, a defendant can seek a deferred prosecution even if the defendant has successfully completed or failed to complete a prior program. All crimes and infractions committed within a seven day period can be rolled into a single program.

The most common crime for which defendants seek deferred prosecutions is driving under the influence. It is easiest to understand the program by comparing the ramifications of the program with that of a conviction for DUI. The following are typical conditions in San Juan County District Court.

	DUI Conviction	Deferred Prosecution
Conviction	Guilty of DUI	Not guilty if successful completion
Program Length	Up to 5 years	5 years
Jail Time (Minimums)	First offense: 1 or 2 days Second offense: 30 or 45 days plus mandatory electronic home monitoring (EHM) Third offense: 90 or 120 days plus mandatory (EHM)	None
Fines (Minimum)	First offense: $350 or $500 Second: $500 or $750 Third: $1000 or $1500	None
Costs (In SJC District)	Title 46 Fee: $102.50 Breath Test Program Fee: $200 Conviction Fee: $43 Booking Fee: $25	Administration Fee: $250 Prosecution Fee: $100 Breath Test Program Fee: $200 Booking Fee: $25
Supervision ($50 per month)	For as long as defendant has duties to perform.	2 years
Treatment	Substance abuse evaluation and follow treatment recommendations.	2 years, consisting of in-patient (usually 21 days) or intensive out-patient treatment (usually 9 weeks) with follow-up.
DUI Impact Panel	Yes	Yes
Possess Alcohol?	No for 5 years	No for 5 years
Bars, Liquor Stores?	No for 5 years	No for 5 years
Urinalysis	Random while supervised, upon suspicion for rest of 5 years	Random for 2 years, upon suspicion for rest of 5 years
Ignition Interlock Device	First time: 1 year Second time: 5 years Third time: 10 years	First time: 1 year Second time: 5 years Third time: 10 years
Priors	Counted as a prior conviction in the event of another DUI.	Counted as a prior conviction in the event of another DUI.

So, a defendant can avoid a conviction and jail time with a deferred prosecution. But in return, the defendant must engage in a two-year treatment program that includes an intensive component at the beginning. He saves money on fines but may pay more due to a longer period of treatment and supervision.

Importantly, the defendant gives up important rights to enter the program. The defendant gives up his right to a jury trial, to confront witnesses against him, and to testify on his own behalf and bring his own defense. Instead, the defendant stipulates to the admissibility of the police reports and statements in his case. These reports and statements will be used if he fails the program.

If during the five year program the defendant is accused of violating a term of the program, such as possessing alcohol, then the following will occur.

The prosecutor will note a hearing at which the prosecution must prove that it is more likely than not that the defendant violated the terms of the program. Notice that the prosecutor’s burden of proof is not “beyond a reasonable doubt,” just “preponderance of the evidence,” which means “more likely than not.” The judge will make this determination, not a jury.
If the defendant is found to have violated the program, then the judge will decide whether to revoke the deferred prosecution. The judge has discretion whether to do so.
If the judge revokes the program, then he will decide based on the police reports and statements referred to earlier whether the defendant is guilty of the crime beyond a reasonable doubt. The defendant cannot present a defense. Likely, he will be found guilty.
If guilty, the defendant will be sentenced. For a DUI, the sentence is likely to include everything under the “convicted” column above. If the defendant was revoked from the deferred prosecution program after 4 years and 6 months, he will start over with a new period of probation.

Statistically, only 50% of participants complete the program. Perhaps this is because the program is designed for defendants with real substance abuse problems that are hard to overcome.

The deferred prosecution is not a simple get-out-of-jail-free card. It is hard medicine for those that need it.

If you have questions about any of this information, please ask.

This website provides general information to the public on legal issues. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact Brandli Law for advice on specific legal problems.