Wednesday, April 3, 2013
DUI Diversion: What it Means and Why It's a Good Thing.
Diversion is a beautiful thing. As far as legal courses of action are concerned, it is the silver medal to the gold of Dismissal. Or maybe more like a gold medal with strings attached.
Let me break it down like this: Most people are familiar with the term “probation.” If you plea Guilty to a crime, or you are found Guilty at trial, you can receive jail time. For a misdemeanor, you can receive up to a year in a county jail. For felonies, you can receive a year or more in prison. In order to avoid jail time, if you have a decent lawyer, your lawyer will ask for probation. In lieu of actually serving jail time, a judge may order the time probated. Essentially your probation period will be a period of time (usually measured in years) where you have to be good. If you avoid further offenses, and abide by the conditions of probation, you don’t have to go to actual jail. And that’s nice.
Diversion is even better than Probation.
Diversion is a multi-faceted creature that can be used in a number of different ways. It’s sort of like probation, because there will be a period of time where you have to be good. And if you don’t get new charges and abide by the conditions of diversion, you can avoid a jail sentence. But Diversion is better than probation because at the end of the diversionary period, the charge is DISMISSED. That means you don’t have a conviction.
One of the best reasons to enter into a diversion agreement is that after a dismissal, you can expunge your record quicker than if you took a conviction. A lot quicker. Like, 5 years quicker. And for felonies, it makes all the difference in the world. Because without successfully completing diversion, the general rule is “Once a Felon, Always a Felon.” If you successfully complete felony diversion, the plea is set aside, and the case is dismissed. Unlike other felony cases, you can get the charge expunged from your record (subject to some other qualifications).
In most counties, Diversion is not an option for DUI charges. However, in Jefferson County, there is a formal diversion program. If you qualify for the DUI Diversion program, your license will be forfeited for a period of time, you perform some community service, pay about $800 in fines in costs, complete Alcohol Drug Education classes, and attend a Mothers Against Drunk Driving Victim Impact Panel. Also, and obviously, you can’t get any new charges in the diversion period. That period is one (1) year. If you abide by the conditions, and successfully complete diversion, the DUI charge will be dismissed. Two (2) years after the dismissal, you can have the charge expunged [this is a weird little caveat to the normal rules on time frames for expungement].
You will NOT qualify for diversion if you have an aggravated DUI. That means if any of the aggravating circumstances listed in KRS 189A are present, you can’t get into the program. Refusing to submit to a blood, breath, or urine test is NOT an aggravator for a DUI, 1st offense. However, refusal WILL prevent you from getting into the diversion program. There are also time limitations, and other considerations that may prohibit you from entering the program. For example, a large neck tattoo that says "No Regrets!"
If you have a DUI, you need a lawyer. Ask your lawyer about whether you might qualify for the diversion program.
Also, if you have any other questions on this subject, please don’t hesitate to call. 502.618.4949.
Greg Simms, Attorney at Law