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A number of states have programs allowing certain DWI offenders
to be diverted from criminal sanctions by entering alcohol education or
treatment programs. Diversion programs (DPs) are intended for first offenders
and may be referred to by a number of different terms: deferred prosecution,
deferred judgment, deferred adjudication, deferred sentencing, pre-trial
diversion, probation before judgment, continued without a finding, etc.
With strong supporters and harsh critics, DPs generally allow charge dismissal
after successful completion of a treatment or education program and can
prevent or delay information about an offense from appearing on the offender’s
driving record. While the programs may require offenders to seek treatment
for drinking problems, opponents say too often they are used in place of
sanctions with known effectiveness in reducing crashes and violations.
Diversion programs make it more difficult to identify hardcore drunk drivers.
Most offenders seek DP status to avoid having a driving record or criminal
history showing a DWI conviction. In some states, diversion allows the offender
to retain a valid driver’s license. This means no increase in insurance
premiums. Also, professionals who are licensed by the state or federal government,
including pilots, truck drivers, police officers and lawyers, can avoid
damage to their licenses or certifications.
A 2002 AAA Foundation for Traffic Safety study recommends the elimination
of diversion programs allowing offenders to escape license suspension and
to have the DWI offense removed from the driving record. The report recommends
every convicted drunk driver have at least a 30-day license suspension and
that drivers should not be allowed to obtain hardship licenses immediately.
In general, diversion programs allowing a dismissal of charges after completion
of treatment programs do not appear to reduce recidivism. A 1991 study also
found deferring prosecution as an incentive for entering a treatment program
to be ineffective (Jones and Lacey 2001).
The National Transportation Safety Board and others have recommended the
elimination of diversion programs. One criticism is that without proper
record keeping and centralized reporting, a repeat offender could be classified
as a first offender multiple times.
However, proponents say many states use diversion programs to the benefit
of both the system and offenders by channeling the offender into treatment
while relieving a strain on the courts. Such programs are primarily for
first offenders, with safeguards prohibiting an individual from benefiting
twice. However, just as hardcore offenders have found ways to circumvent
the system in other areas, they can and do dodge these safeguards, in some
cases benefiting from diversion programs numerous times. In the event good
records are kept, many states return the original offense to a conviction
if the offender is subsequently re-arrested.
A 1997 study conducted on an El Paso, Texas, pre-trial intervention (PTI)
program found offenders who were convicted of DWI and then put on probation
had a 47 percent greater risk of re-arrest for DWI than individuals who
completed the PTI program postarraignment and had the charges dismissed
(Lucker and Osti 1997). The PTI program included caseworker supervision,
state certified alcohol abuse and DWI classes, and an alcohol interaction
group with alcohol evaluation.
Connecticut has a pre-trial diversion program for high BAC offenders, allowing
them to attend rehabilitation/alcohol education in return for dismissal
of the charges. If the driver is a repeat offender, he attends more sessions
at a higher cost than other offenders.
Other states do not allow diversion for high BAC offenders. Iowa does not
allow high BAC offenders to participate in a deferred judgment program resulting
in a dismissal of charges after the fulfillment of an alcohol education/treatment
program (McCartt et al. 2001).
The state of Washington is unusual in that the program there is not specifically
designed for any particular level of offender (i.e., first, second, third,
etc.) but is for alcoholic and drug addicted offenders exclusively. Washington’s
"deferred prosecution" is available to an offender only once. The program
requires the offender to spend two years in treatment, attend a self-help
group, and if the offender is successful, the judge will dismiss the charges.
The offender agrees when going into the program to waive the right to further
argument in the case, and if he or she drops out or otherwise fails to finish
treatment, a guilty verdict is summarily pronounced. Also, following successful
completion and the dismissal of charges, the offender’s license is placed
on probationary status for five years. A study prepared for the Washington
Traffic Safety Commission in 1993 found offenders who participated in the
program repeated their offenses at a rate of only 22 percent as compared
to 48 percent for convicted drivers who did not participate.
Pennsylvania’s Accelerated Rehabilitative Disposition (ARD) is available
only to first offenders. Satisfactory completion of this program can lead
to dismissal of DWI charges. The court determines acceptance into the program,
and the offender must incur all costs of alcohol assessment, education and
treatment, and restitution to victims. Offenders can be subjected to between
one and twelve months’ license suspension and court supervision for six
to twelve months. Duration of the program cannot exceed two years, and if
the offender violates ARD terms, his or her participation in the program
will be terminated and the prosecutor can proceed with the DWI charge. Eligible
first offenders must have no prior DWIs in the past seven years, no accidents
involving serious injuries, no other major offenses, and must not have been
driving while suspended. About 70 percent of all DWI cases in the state
are processed through ARD (Pennsylvania Rules of Criminal Procedure 2002).
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