DIVERSIONARY PROGRAMS AR NO GUARANTEE
April 13, 2014
One of the most common question of people who are charged with criminal offenses is “what can I expect for a sentence” and it is often followed by “this is my first arrest” or “I have no record.” In many situations, a person may be able to avoid a criminal record without trying the case or having the charge nolle’d by the State. Connecticut (and most other states) has many diversionary programs for criminal defendants. When a person enters a diversionary program, the criminal charges will be dismissed if he or she satisfies various responsibilities over a period of time. As a result of the dismissal, there would be no criminal conviction.
Connecticut’s programs include the venerable Accelerated Rehabilitation (“AR”) for many misdemeanors and felonies, the Alcohol Education Program for DUI’s, Drug Education and Community Service Program, Family Violence Education Program (self-explanatory) and Supervised Diversionary Program (SDP or “Psych AR”) for people with psychiatric conditions. Each program has its own eligibility requirements. For instance, for a non military veteran to be AR eligible, he or she must not have a criminal conviction record, not have ever used the program before and not be charged under a statute that is an automatic disqualifier.
There are two stages for the application to these programs. The first stage is the person stating that he or she is eligible for the program in open court. The second stage is when the court either grants or denies the program based on its evaluation of the person between the two court events. It sounds simple enough: no trial, no jail, just filling out some forms, so why hire a lawyer if one is eligible?
For starters, diversionary programs are ultimately the discretion of the court–the judge decides whether a person is granted a program even if the person is preliminarily eligible. A court may decide that although a person is eligible in the first stage, that person should not be granted the program. One reason for a denial is that the charge or charges is too serious even if it is not program prohibitive by the statute. I’ve seen this happen for burglary charges. Another is the likelihood of a defendant reoffending. During the second stage of an application, an attorney can argue for the granting of the program and can also negotiate with the judge and prosecutor during pretrial as to the program’s requirements or special conditions.
On the opposite end is that a charge might be minor enough or the State’s case weak enough that another sort of nolle or dismissal can be worked out. I’ve done this a few times: reduced a reckless driving (a misdemeanor, not just a traffic violation) to a traffic infraction, had clients do community service in exchange for nolles of breach of peace, complete substance abuse treatment in a domestic violence case instead of FVEP. The reasons or doing this are to preserve a program for the future and to save time and money–some programs require class fees and most take time until they are completed and the case is dismissed, up to years at times. Programs to avoid convictions are great–avoiding programs is even better.