As courts shift to a more offender based approach in their sentencing, more people are sentenced to a form of probation or community control than imprisonment. However, the length of a probation term is often significantly longer than the maximum term of imprisonment, and there are a multitude of conditions that must be satisfied or probation would be revoked. This article, written by a criminal defense attorney, helps explain what you could expect if you are granted diversion, SIS, or probation for a DUI or DWI charge. If you find yourself searching for “lawyer near me” or “attorney near me”, reading this article may be well worth your time. For a free consultation with a Missouri criminal defense attorney, call The Law Offices of Benjamin Arnold at (913) 777-HELP, or visit us on the web at kcdui.com.
I. Understanding the Difference Between Diversion, SIS, and Probation
Diversion, or a suspended imposition of sentence (SIS) is an alternative to traditional prosecution, which carries several benefits. Diversion and SIS are essentially similar terms that both describe the practice of the offender entering into a contract with the prosecution which allows the charges to be dismissed. If granted, the individual charged will have the opportunity to complete a probationary period which if successful will result in the dismissal of the charges with prejudice, meaning it will not be recorded as a conviction and you cannot be tried again for the same crime. Often times, if there are other charges associated with the arrest, such as drug possession or other traffic violations, the prosecutor will be willing to include them in the diversion agreement. Eligibility for diversion or SIS varies among jurisdictions, but is generally limited to first time offenders without aggravating circumstances such as a high BAC, property damage or bodily injury, or where a child was present. Common requirements for diversion participants include alcohol classes and treatment, attending a MADD victim impact panel, court costs, and refraining from the use of alcohol or illegal substances.
While diversion provides many benefits, it is important to note that it is not for everyone- especially the requirement to stay sober for the entire period, which is verified through urinalysis (UA) testing. To be granted diversion or SIS, the individual signs away certain rights as consideration for the benefits. The most important to be aware of are the right to a speedy trial, and the stipulation of facts contained in the arresting officer’s report. Because the prosecution is granting a continuance on the charges when diversion is granted, you must give up the right to be tried within a reasonable time. This is because if you fail to meet the terms required, the prosecutor may file a motion to revoke diversion, which if granted will subject you to prosecution on the original charges, which is not a violation of double jeopardy. Furthermore, it is almost guaranteed the prosecution will be able to achieve a conviction on the stipulated facts, because by signing the agreement you are essentially admitting everything in the report is true, which will inevitably be used against you at trial. Prior diversion agreements may be used as evidence of awareness of the risks of drunk driving in a subsequent trial for DUI or DWI, particularly to prove a required element such as recklessness for a more serious charge where death or bodily injury is involved. SEE State v. Claerhout. Furthermore, even if the charges are dismissed through diversion, certain entities such as the government will be able to see the charges and use them for enhancing purposes for later offenses.
If you are ineligible for diversion, you may be able to seek a plea deal, which will result in a conviction on your record, but with less consequences and cost than taking the matter to trial. Very few misdemeanor DUI prosecutions make it all the way to trial, as most are resolved prior to trial in the interests of reducing costs and court time for a resolution. A guilty verdict in trial will often result in more serious punishment, known as the “jury tax” among those familiar.
II. Common Conditions of Diversion, SIS, and Probation
In many jurisdictions, the prosecutor’s office has a standard set of terms printed on its’ diversion or probation agreement, with check boxes that will be filled in upon the findings of the pre-sentencing report (PSI) and/ or the probation officer’s recommendations. This report contains information gathered from the disclosures of the defendant in his application, as well as any substance abuse or mental evaluations ordered by the court. Although someone can apply for diversion without a lawyer, hiring a criminal defense attorney can increase the chances it will be granted, and you fully understand the terms required to be fulfilled. I will explain some of these general conditions, which may or not be applicable to all individuals, and does not constitute legal advice. If you are already on probation or diversion, you should refer to your agreement for specific guidelines on compliance.
a. Submit to a Substance Evaluation and Follow any Recommendations for Treatment. The court will generally require you submit a substance evaluation as a prerequisite for being granted diversion. You will likely be recommended for substance abuse treatment, which can be an eight hour class, fifteen hours of classes, or longer, depending on the circumstances of the offense and history of the offender. Regardless of whether you believe you need treatment, if the service provider makes a recommendation to the court, you must follow and complete the treatment plan to satisfy this condition. You will be responsible for communicating with the service provider and paying all costs and fees associated with treatment.
b. Refrain from Violating the Law and Report any Police Contact. This one is fairly straightforward, but catching a new charge during probation or a diversion program is quite problematic, and revocation hearings are a rather frustrating event for judges who try and give defendants the benefit of the doubt in granting them the opportunity. It should also come as no surprise that the probation officer or court services officer supervising you must be made aware of any police contact, even if there was no arrest made. While there is no telling if they would find out about you receiving a minor traffic ticket, it seems best to err on the side of disclosure for any and all contact.
c. Maintain Contact and Report as Directed. You are required to maintain contact with your supervising authority, which includes keeping updated contact information, such as phone number and home address on file. In most cases, you will be required to meet monthly with your probation officer or case manager so they can monitor your progress and address any concerns. It is important to read the precise terms regarding compliance so you do not receive a violation over a simple technical misunderstanding.
d. Pay All Costs Associated with Supervision. Usually, the court will work with you if you need a payment plan to cover supervision fees, but it is important to not bite the hand that feeds and make all payments in a timely manner. Certain cases may require the payment of one-half of the fees upfront. Common fees include reimbursement if a public defender was retained, court costs, fines, supervision fees, restitution, fingerprint, and drug testing fees. Nonpayment of associated costs may trigger a probation violation, so it is crucial to understand the costs beforehand.
e. Abstain from the use of Alcohol and Drugs, Submit to Testing. In theory, this is a very simple condition to abide by- stay sober and you will have nothing to worry about. However, of all the conditions of probation and diversion, this is the one area where individuals have the most difficulty. If the offense for which you are on supervision for involves drugs or alcohol, it is likely you will be required to submit to random testing to verify compliance. This is usually a phone number you must call and type in your PIN to see whether you have been called to provide a sample. Providing a diluted sample or skipping the drug test may be treated as a failure, and could subject you to a violation or other sanctions. In addition to testing for drugs, modern UA tests include an alcohol panel which will test ETG levels. Because ETG remains in your system for up to and in some cases over 80 hours, it is unwise to try and game the system by drinking since you could be called for a test on any day, even holidays. Other drugs- specifically marijuana, remain in your system for even longer. While it is not as common, if you are given a hair test, there could be traces of drugs or alcohol up to ninety days after consumption. Simply put, it is in your best interest to take things seriously and refrain from trying to cheat the system, because the chances of being caught doing so are relatively high.
f. Other Offense-Specific Conditions. Certain offenses may require additional conditions of probation or diversion due to their nature. For example, a DUI offender may be required to attend a Mothers Against Drunk Driving (MADD) victim panel, or install an ignition interlock device (IID) on their vehicle. In cases involving significant financial injury, the offender may be required to pay a certain amount of restitution to the victim before probation or diversion may be granted. In felony cases, the offender may be required to first serve “shock time”, or a short jail sentence as a punitive measure or to send a message to the community.
III. What Happens if I Violate the Terms of Probation or Diversion?
Failing to satisfy any condition of probation or diversion may trigger a violation hearing. Depending on the severity of the violation, the underlying charges, and the probation officer’s recommendations, the judge has the discretion to determine what will happen next. The standards at a probation violation hearing are different from those in a criminal trial, specifically with regards to the rights of the accused. The prosecution carries a lower burden of proof, and is only required to prove the violation by a preponderance of the evidence, instead of beyond a reasonable doubt. Additionally, the rules of evidence are relaxed, and the prosecution may introduce evidence that would otherwise be inadmissible at a criminal trial. It is crucial to retain a local criminal defense attorney to represent you if you have received a notice to appear for a probation revocation hearing.
If the prosecution is able to establish its’ burden in proving the violation, or the defendant has stipulated to the violation, the judge must then determine the appropriate sanctions. For something relatively minor, the judge may reinstate the probation, sometimes adding additional conditions such as an extended term, extra community service, more intensive substance abuse treatment, anger management classes, or something similar. However, if the violation is more severe, the judge may order shock time, or even sentence the individual to the remainder of his suspended sentence or other jail time allowed by law. It is important to fully understand all the terms of your probation or diversion agreement prior to signing it, because subsequent violations may dramatically increase the time spent under court supervision.
If you are on diversion, it is likely that you had to sign a waiver stipulating the facts of your underlying charge(s). This will make it relatively simple for the judge to convict you if diversion is revoked. Often times, the judge will then impose a term of probation which will mirror the conditions of diversion, but you will end up having the conviction on your record. In theory, not taking seriously a one year diversion agreement could lead to years of jumping through the hoops of probation and other punishments. It is best to fully be aware of everything required of you, and to take things seriously from the beginning. A Kansas City criminal defense lawyer can help guide you through the process to increase your chances of success and minimize disruptions to your life.
