Limits on Diversion and Plea Agreements

Diversion programs defer sentencing while a DWI offender participates in some form of alcohol education or treatment. In many States, charges are dropped or the offender’s DWI record is erased if the education or treatment is completed satisfactorily. (UNC Highway Safety Research Center, 2011, p. 1-26)

A plea agreement allows a DWI offender to negotiate the charges against him or her or the terms of his or her sentence.

Negotiated plea agreements are a necessary part of efficient and effective DWI prosecution and adjudication. However, plea agreements in some States allow offenders to eliminate any record of a DWI offense and to have their penalties reduced or eliminated. (UNC Highway Safety Research Center, 2011, p. 1-26)

Both diversion programs and plea agreements reduce the time to punishment. In addition, they typically also result in less-severe punishment for DWI offenses and negatively affect deterrence. Diversion programs guarantee a minimum action (e.g., education or treatment) to change an offender’s behavior, while plea agreements may result in no corrective action. In both cases, the dismissal of charges and lack of permanent record means that a repeat offender may be tried or dealt with as a first-time offender because the record does not show the previous arrests.

Effective DWI control systems can use a variety of adjudication and sanction methods and requirements. The key feature is that an alcohol-related offense must be retained on the offender’s record ([Hedlund and McCartt, 2002]; [Goodwin, Foss, et al., 2005]; [NTSB, 2000]; [Robertson and Simpson, 2002]). (UNC Highway Safety Research Center, 2011, p. 1-26)

History

Millions of traffic violations are processed through the court system in the United States each year. Plea-bargaining and diversion programs are two ways to reduce the burden on the state and local court systems. In 1984, the NTSB (NTSB, 2000) first recommended eliminating the option of plea-bargaining down DWI offenses, although it is not clear how quickly states adopted this policy. Some studies since then have demonstrated that diversion programs, particularly ones with short sentences, do not reduce recidivism (NTSB, 2000). However, they continue to be favored for their efficiency in dealing with first-time offenders (Wiliszowski et al., 2011).

Use

“As of 2006, 33 States provided for diversion programs in State law or statewide practice, and local courts and judges in some additional States also offer diversion programs ([NHTSA, 2006b])” (UNC Highway Safety Research Center, 2011, p. 1-26). A slightly more recent count (2007) identified 15 states with either an anti–plea-bargaining statute or a mandatory-adjudication law (NHTSA, 2011b). (Because NHTSA [2006b] references a personal communication, it is difficult to know whether this intervention declined in use or whether the earlier count used other definitions.) “The [National Hardcore Drunk Driver Project, 1998] documented diversion programs and plea agreement restrictions in several States” (UNC Highway Safety Research Center, 2011, p. 1-26).

Effectiveness

There are no studies that demonstrate that diversion programs reduce recidivism (NTSB, 2000) and there is substantial anecdotal evidence that diversion programs, by eliminating the offense from the offender’s record, allow repeat offenders to avoid being identified ([Hedlund and McCartt, 2002]). Eliminating or establishing limits on diversion programs should remove a major loophole in the DWI control system. (UNC Highway Safety Research Center, 2011, p. 1-26)

Wagenaar et al. (2000) reviewed 52 studies of plea agreement restrictions applied in combination with other DWI control policies and found that they reduced various outcome measures by an average of 11 percent. However, the effects of plea agreement restrictions by themselves cannot be determined in these studies. The only direct study of plea agreement restrictions was completed over 20 years ago ([Surla and Koons, 1989]; [NTSB, 2000]). It found that plea agreement restrictions reduced recidivism in all three study communities. (UNC Highway Safety Research Center, 2011, p. 1-26)

In Michigan, lesser offenses, such as operating a vehicle while impaired, still count toward the state’s three-strikes policy for repeat offenders. This effectively limits plea-bargaining because offenders who plea-bargain to the lesser offense will still face consequences for repeat offenses. An evaluation of a package of Michigan laws aimed at reducing drunk driving, including limits on plea-bargaining, found a 30-percent decrease in the rate of crashes involving drivers with suspended or revoked licenses, although it is not possible to ascribe causality to only one specific policy (Eby, Kostyniuk, Spradlin, et al., 2002).

Recent Research on Effectiveness

One study in New Jersey examined the impact of removing a prohibition on plea-bargaining (Carnegie, Ozbay, and Mudigonda, 2009). After allowing plea-bargaining from point-carrying moving violations (e.g., reckless driving, failure to stop) to zero-point offenses, there was no difference in the number or composition of moving violations. Although this study did not include DWI offenders, the researchers demonstrated a 36-percent decrease from 1999 to 2006 in the number of negligent drivers subjected to the New Jersey Motor Vehicle Commission’s monitoring and control system, which includes countermeasures, such as re-education classes or license suspension. This implies that the previous limits on plea-bargaining had channeled unsafe drivers toward corrective programs, and lifting the limits meant fewer unsafe drivers enrolled in such programs.

Measuring Effectiveness

The effectiveness of diversion programs is generally measured in terms of recidivism, expressed as the percentage of offenders who have another alcohol-related traffic violation within some amount of time.

Costs

Costs for eliminating [or] limiting diversion programs can be determined by comparing the per-offender costs of the diversion program and the non-diversion sanctions. Similarly, costs for restricting plea agreements will depend on the relative costs of sanctions with and without the plea agreement restrictions. In addition, if plea agreements are restricted [or diversion programs eliminated], some charges may be dismissed or some offenders may request a full trial, resulting in significant costs. (UNC Highway Safety Research Center, 2011, p. 1-26)

Time to Implement

Eliminating [or] limiting diversion programs and restricting plea agreements statewide may require changes to a State’s DWI laws. Once legislation is enacted, policies and practices [that the legal system uses] can be changed within three months. Individual prosecutor offices and courts also can change local policies and practices without statewide legislation. (UNC Highway Safety Research Center, 2011, p. 1-26)

Other Issues

Judicial Factors

Plea-bargaining to a lesser charge is appealing only if the expected outcome of the court proceedings is a harsher punishment. However, this is not always the case. A recent newspaper series reported judge acquittal rates for operating-under-the-influence (OUI) offenses higher than 80 percent in some Massachusetts counties (Farragher, 2011; Saltzman, 2011; Bombardieri, 2011). The high probability of dropped charges through regular proceedings has led lawyers to advise their clients to try their cases instead of plea-bargain. Less-severe punishment or lower risk of conviction due to judge leniency will influence the effect of limits on diversion programs and plea-bargaining.

Table B.7. Limits on Diversion and Plea-Bargaining, as of March, 2010

State	Anti–Plea-Bargaining Statute	Mandatory-Adjudication Law
Ala.	None	None
Alaska	None	None
Ariz.	Ariz. Rev. Stat. Ann. § 28-1387(I) (2014)	None
Ark.	Ark. Code Ann. § 5-65-107 (2014)	Ark. Code Ann. § 5-65-107 (2014)
Calif.	Plea-bargaining is prohibited in serious felony and DWI cases unless (1) there is insufficient evidence of the offense, (2) testimony of a material witness cannot be obtained, or (3) the reduction or dismissal of charges would not result in substantial change in sentence. Cal. Penal § 1192.7(a)(2) (2014); People v. Arauz, 5 Cal. App. 4th 663 (1992). In addition, a criminal charge cannot be dismissed without the court’s approval. Cal. Penal § 1385 (2014). Under Cal. Veh. § 23635 (2014), the court must give the reasons a DWI charge was reduced to a lesser offense, changed to reckless driving, or dismissed.	None
Colo.	Colo. Rev. Stat. § 42-4-1301(4) (2013).	None
Conn.	None. However, the law does require the state to give to the court, in open session, the reasons a DWI charge was reduced, nolle prossed, or dismissed. Conn. Gen. Stat. § 14-227a(f) (2014).	None
Del.	None	None
D.C.	None	None
Fla.	Applies to DWI where the BAC is 0.15 or more or where there has been physical injury, death, property damage, manslaughter related to the operation of a motor vehicle, or vehicle homicide. Fla. Stat. § 316.656(2) (2014).	Applies to DWI, manslaughter resulting from the operation of a motor vehicle, and vehicle homicide offenses. Fla. Stat. § 316.656 (2014).
Ga.	None	None
Hawaii	None	None
Idaho	None	None
Ill.	None	None
Ind.	None	None
Iowa	None	Deferred judgment may be available for a first offender who has a BAC <0.15 if no bodily injury resulted. Iowa Code § 321J.2 (2013); Iowa Code § 907.3 (2013).
Kan.	Kan. Stat. Ann. § 8-1567(s) (2013). However, certain diversion programs are excepted.	None
Ky.	Plea-bargaining is not allowed if any one of the three following conditions exists: (1) a defendant ≥21 years old has a BAC or BrAC ≥0.08; (2) a defendant <21 years old has a BAC or BrAC ≥ 0.02; or (3) a defendant refused to submit to a chemical test under the implied-consent law. However, this does not apply if the state’s witnesses are unavailable for trial or the chemical test results are in error. The court must record the reasons for any change in the original charges. Ky. Rev. Stat. Ann. § 189A.120 (2014).	None
La.	None	None
Maine	None	None
Md.	None	None
Mass.	None	Alcohol screening is required for a first offense. Mass. Ann. Laws ch. 90 § 24(1)(a)(4) (2014).
Mich.	Limited. A person who is charged with driving while under the influence, driving while visibly impaired, or illegal per se offenses cannot enter a plea of either guilty or nolo contendere to driving with “any bodily alcohol content” in exchange for dismissal of the original charge. However, the court, upon the prosecuting attorney’s motion, may dismiss the charge. Mich. Comp. Laws Serv. § 257.625(16) (2014).	None
Minn.	None	None
Miss.	A DWI charge cannot be reduced. Miss. Code Ann. § 63-11-39 (2014). For subsequent offenses, mandatory sanctions cannot be suspended or reduced through a plea agreement. Miss. Code Ann. § 63 11-30(2)(b), (c) (2014).	None
Mo.	None	None
Mont.	None, but a DWI offender is not eligible for pretrial diversion. Mont. Code Ann. § 46-16-130(4) (2013).	None
Neb.	None	None, and pretrial diversion of DWI cases is prohibited. Neb. Rev. Stat. Ann. § 29-3604 (2013).
Nev.	A DWI charge cannot be reduced for a lesser charge in exchange for a plea or dismissed unless there is no evidence to support probable cause or such charge cannot be proven at trial. Nev. Rev. Stat. Ann. § 484C.030 (2014).	None
N.H.	None. The law requires the filing of reports on plea-bargaining agreements. Because these reports are public records, they are available for public inspection. N.H. Rev. Stat. Ann. § 265-A:21(II) (2014).	None
N.J.	None. However, a victim who sustains bodily injury or serious bodily injury shall be provided with the opportunity to consult with the prosecutor prior to dismissal of the case or the filing of a proposed plea negotiation with the court. N.J. Rev. Stat. § 39:4-50.12 (2014).	None
N.M.	N.M. Stat. Ann. § 66-8-102.1 (2013). If a guilty plea is entered, it must be to one of the subsections of the DWI statute when alcohol concentration is ≥0.08.	None. However, a driver must be charged with a DWI offense if he or she has an alcohol concentration ≥0.08. N.M. Stat. Ann. § 66-8-110(C) (2013).
N.Y.	Unless available evidence determines otherwise, plea-bargaining is allowed only to another DWI offense. N.Y. Veh. & Traf. Law § 1192(10)(a) (2014).	None, but unconditional discharge for a DWI violation is prohibited. N.Y. Veh. & Traf. Law § 1193(1)(e) (2014).
N.C.	None. However, the law does require the prosecutor to explain a reduction or dismissal of a DWI charge in writing and in open court. N.C. Gen. Stat. § 20-138.4 (2014).	None
N.D.	None	None
Ohio	None	None
Okla.	None	None
Ore.	A person charged with DWI shall not be allowed to plead guilty or no contest to any other offense in exchange for a dismissal of the offense charged. Or. Rev. Stat. § 813.170 (2013).	None
Pa.	None. However the presiding judicial officer at preliminary hearing or arraignment shall not reduce or modify an original DWI charge without the consent of the attorney for the commonwealth. 75 Pa.C.S. § 3812 (2014).	None
R.I.	None	None
S.C.	None	None
S.D.	None. But an illegal per se charge may be reduced or dismissed only when written reasons for such have been filed with the court. S.D. Codified Laws § 32-23-1.3 (2014).	None
Tenn.	None	Tenn. Code Ann. § 55-10-403(b)(1) (2014).
Texas	None	None
Utah	None. However, a court may not accept a plea of guilty or no contest to a DWI charge unless (1) the prosecutor agrees to the plea in open court, in writing or by any other means of adequate communication to record the prosecutor’s agreement; (2) the charge is filed by information; or (3) the court receives verification from law enforcement that the defendant’s driver’s license records shows no conviction of more than one prior violation within ten years, a felony DWI conviction, or automobile homicide. A prosecutor must examine a defendant’s criminal and driver’s records before entering into a plea. Utah Code Ann. § 41-6a-513 (2014).	None
Vt.	None	None
Va.	None	None
Wash.	None	None
W.Va.	None	None
Wis.	None. However, the court must approve dismissals of or amendments to DWI charges. Wis. Stat. § 967.055 (2014).	None
Wyo.	A DWI charge may not be reduced or dismissed, unless the state in open court moves or files a statement containing supporting facts to indicate that there is insufficient evidence to support the original DWI charge. Wyo. Stat. Ann. § 31-5-233(j) (2014).	No

SOURCE: NHTSA, 2011b.
NOTE: BrAC = breath alcohol concentration.