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DUI Diversion Programs: What They Are and How They Work

Drunk driving goes by a variety of names. It includes a range of vehicles and intoxicating substances. Some states call it driving while intoxicated (DWI), driving while impaired, or operating while impaired (OWI). Most states include boats, motorcycles, ATVs and offroad vehicles, and even bicycles and horses. You can get a DUI arrest for driving under the influence of marijuana, legal medication, and most illegal narcotics.

States take DUI cases very seriously because of the harm done by drunk and impaired drivers. According to the National Highway Transportation Safety Administration (NHTSA), more than 13,000 people died in the United States in 2021 in alcohol-related accidents. The consequences of impaired driving cost the U.S. more than $68 billion each year.

Because of the impact, the criminal justice system does not give drunk drivers many breaks. DUI suspects can expect fines, driver's license suspensions, criminal charges, and jail time for repeat offenders. However, the courts also recognize that it can be better to treat the underlying problem rather than punish the offender. DUI diversion programs are available for those who deserve a second chance.

What Are Diversion Programs?

A pretrial diversion program puts the adjudication of a case in the judge's hands. It grants the judge the ability to suspend or postpone a case for a statutory period, up to 24 months in some states. The judge will refer the defendant to an intervention program or mental health treatment facility. At the end of a successful diversion, the defendant may qualify for expungement of their record.

Diversion programs are common in juvenile courts since they can reduce recidivism for first offenders in misdemeanor cases. Diversion is useful for impacted courts, such as drug courts. Nonviolent offenders may benefit more from treatment programs than incarceration. Veterans courts offer diversion for defendants with a dual diagnosis of substance abuse and post-traumatic stress disorder (PTSD). Diversion results in an improved outcome for these cases.

States have a mixed attitude towards DUI diversion programs. Some states offer them as they do other diversion programs, and some don't. In some states, these programs are changing as of the writing of this article. The information provided here is current as of this date. You should consult an attorney with questions or check your local court website.

DUI Diversion Basics

Eligibility requirements for DUI diversion vary across jurisdictions and often from county to county. For instance, in Florida, an applicant can have a DUI only, with no additional or aggravating charges, no prior alcohol-related offenses, and no other misdemeanor offenses or deferred prosecutions. The district attorney's office must refer applicants for diversion. In Oregon, an applicant cannot have had any DUI or substance abuse-related offenses within the last 15 years. Additionally, the current offense may not have any aggravating charges. The defendant must plead guilty or no contest to the charges.

Before accepting a diversion, defendants should discuss the matter carefully with their defense lawyers. They should decide whether they wish to accept all the duties and responsibilities accompanying the diversion program.

Program Requirements

Like eligibility requirements, the program requirements differ from state to state. Each county or court may have its own set of requirements for diversions. In general, these are some things a defendant might encounter in a DUI diversion program. Depending on the state or even on a particular case, there could be additional requirements. Diversion is usually a package intended to treat the offender's entire alcohol and driving problem.

  • Drug or DUI classes: Less fun than traffic school, but with the same intention, DUI classes educate offenders on the effects of alcohol and drugs on driving ability. DUI classes are always part of a diversion program.
  • Alcohol/drug treatment programs: If the judge decides the offender has a substance abuse problem, the plan may include a drug or alcohol treatment program. It may be a 12-step program or something more formal if available.
  • Urine testing/breathalyzer testing: Receiving diversion means submitting to random urinalysis and drug testing. "Testing hot," that is, having a positive test for drugs or alcohol during diversion, may be grounds for an immediate violation and a return to jail.
  • Ignition interlock device: Courts are increasingly ordering pretrial release offenders to have these devices installed in their vehicles. A breathalyzer-type device prevents the car from starting unless the driver blows a .08% blood-alcohol content (BAC) or lower.
  • Community service: In exchange for staying out of jail, offenders are often required to serve the community. Collecting trash is the most common community service. But courts have lists of alternate community services that need volunteers.
  • Court costs and fees: Even if granted diversion, DUI offenders must pay court costs and fees. Sometimes, they must pay for the costs of DUI classes or other programs. The alternative is jail.

Those Who Are Ineligible for DUI Diversion

States with DUI diversion may exclude some offenders for other factors. Those ineligible for DUI diversion may include:

  • Excessive blood-alcohol content: The lawful BAC in all states is .08% or lower. States set their own acceptable BAC for diversion, usually 0.15% or lower. BACs above that may be gross misdemeanors or felonies in their states and not eligible for diversion.
  • Aggravating factors: These can include accidents causing serious injuries or deaths. It can include the presence of a child, weapons, or drugs in the vehicle, etc.
  • Offenders with other criminal records: Drivers with histories of domestic violence, sexual offenses, violent felonies, or multiple DUI convictions will not be eligible for diversion.

Some states do not have DUI diversion, no matter the circumstances. California, Kentucky, and Tennessee are some states that do not have DUI diversion.

Navigating the DUI Diversion Case

If you believe you qualify for a DUI diversion, you first need a criminal defense attorney who understands DUI law in your state. As noted, DUI laws vary not only between states but even between counties.

A good example occurred recently in California. On January 1, 2021, a new section of the Penal Code, PC 1001.95, went into effect. It allowed judges to divert misdemeanors. The diversion law excluded four types of cases, and DUIs were not among them. Attorneys and judges in Riverside County believed that they could refer DUI offenses for diversion. Attorneys and judges in Los Angeles County did not. L.A. County cited a different code, Vehicle Code section 23640, which states that DUI misdemeanors may not be diverted for any reason. The California Supreme Court declined to rule on a 2022 case holding against the Riverside County view.

The district attorney determines eligibility for pretrial diversion programs in almost all states. However, a defense attorney often suggests it to the prosecutor. The purpose of diversion programs is to reduce the burden on jails and prisons by limiting the number of inmates. Nonviolent first-time offenders are the best people to keep out of jail.

Completing the Program

If you receive DUI diversion, consider yourself on probation. The only real difference is that defendants receive pretrial diversion before the sentencing. Defendants receive probation after sentencing and sometimes after serving part of their sentence. If you violate either, you will be back in jail, and your criminal history cannot be expunged or removed.

Diversion suspends the sentence you would receive if your case went to trial. In some states, such as Oregon, you must plead guilty and accept guilt. But your record will show successful completion of the program. To complete diversion successfully, you must:

  • Make all court dates and hearings. You cannot miss any for any reason.
  • Complete all conditions of your diversion. Pay all fines and costs, attend all courses and treatment programs, and finish all community service hours.
  • Not violate any restrictions of your diversion. No dirty urine tests, no new DUI charges, and no other criminal offenses, no matter how minor.

Once you have completed the program, return to court with your lawyer. Be sure the judge removes the criminal conviction from your record if that was the agreement of your diversion. Have your attorney confirm that all the paperwork is in place for expungement and removal of any suspensions on your license. You may need to send documents to other agencies or departments to complete your case.

Learn More About DUI Diversion Programs

Not everyone gets a second chance to fix their lives. A DUI diversion program gives you the opportunity to correct a mistake and start over. See if you qualify for diversion by contacting a knowledgeable DUI attorney in your area.

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