Diversion for Traffic Offenses[Note: Effective January 1, 2010, people charged with DWI or DUI in Washington, D.C. will no longer be eligible to participate in the D.C. diversion program. While there has been no formal announcement or anything in writing, the assistant chief for criminal within the Public Safety Division has informed me that the OAG now considers these offenses as too serious to allow non-prosecution. The next best option, as described below, would be a Deferred Sentencing Agreement, which is now offered for first-time offenders with a blood alcohol level no greater than 0.10.]
“Diversion” is generally defined as a program which enables first-time offenders facing misdemeanor criminal charges or traffic offenses to perform community service or undergo job training or substance abuse treatment in exchange for the postponement of prosecution. If the defendant successfully completes all requirements under the agreed upon terms of the program, the prosecution will dismiss the case. If the defendant fails to complete the requirements, the case is referred back to criminal court for prosecution.
There are a number of different diversion programs in Washington, D.C. with eligibility depending on the nature of the charged offenses and the defendant’s prior criminal history. All of the programs are operated out of the D.C. Misdemeanor and Traffic Community Court. The Office of the Attorney General (OAG) for the District of Columbia has sole discretion to determine a defendant’s participation.
Substance Abuse Driving Diversion
Under the Substance Abuse Driving Diversion program, defendants charged with drinking-and-driving and certain other offenses can get criminal charges dismissed after participating in an alcohol counseling and treatment program.
People charged with the following offenses are eligible to participate in the D.C. diversion program for driving offenses involving alcohol:
- Driving While Intoxicated (DWI)
- Driving Under the Influence (DUI)
- Operating While Impaired (OWI)
- Possession of an Open Container of Alcohol in a Vehicle
- Drinking in Public in a Vehicle
In addition, the defendant must meet each of the following requirements in order to qualify: (1) the defendant does not have any prior driving offenses involving alcohol or drugs, (2) the incident leading to criminal charges did not involve an accident causing injury or property damage to another person, (3) the driver does not possess a commercial driver’s license, (4) there was no minor present in the person’s vehicle at the time of the incident, (5) the defendant has not failed to appear for any court appearance on the case for which he/she is seeking diversion, (6) the defendant has not failed to “post and forfeit” collateral on another offense, and (7) the defendant provided a low blood-alcohol sample at the time of arrest.
The program includes an alcohol counseling and treatment program in which participants learn about the effects of drinking and driving. Classes can include group therapy or individual sessions. The defendant must pay all fees prior to beginning participation in the program, although the court can waive fees for indigent defendants.
The length of the program for people charged with DWI, DUI, or OWI depends on the severity of the defendant’s drinking problem. Defendants who are deemed to be “social drinkers” undergo a 12-week program of alcohol education. “High risk” drinkers are enrolled in a 12-week program of education with another 8 weeks of group therapy. “Severe drinkers” receive 12 weeks of alcohol education and another 18 weeks of group therapy.
Each week of the alcohol education consists of a single 2-hour class that addresses the “various myths and misconceptions” about alcohol and educates participants on alcohol’s addictive and destructive effects. The group therapy session is conducted by a licensed addiction specialist or social worker and includes an hour and a half of instruction and a half hour for individual questions.
Defendants charged with Possession of an Open Container of Alcohol in a Vehicle or Drinking in Public in a Vehicle are required to attend an abbreviated education program consisting of three 1.5-2 hour classes.
Community Service Diversion
In the Community Service Diversion program, eligible participants complete a period of community service in exchange for the dismissal of criminal charges. Eligibility for community service diversion is restricted to those people who have committed “quality of life” and minor criminal traffic offenses. Offenses qualifying under this category include:
- Possession of an Open Container of Alcohol
- Drinking in Public
- Misrepresentation of Age to Enter an Alcohol Beverage Control Establishment
- Counterfeit Tags
- Unregistered Vehicle
- Vending Without a License
- Indecent Sexual Proposal
- Indecent Exposure
- Urinating in Public
- Exceeding Speed Limit by Over 30 MPH
- Misconduct on Metro System
Defendants perform community service through different organizations, including the Downtown Business Improvement District (BID) and the Department of Public Works (DPW).
Certain offenses include additional requirements. For diversion on indecent exposure cases, for example, the defendant must complete 40 hours of community service within 90 days. For the violation of driving at over 30 miles per hour over the speed limit, defendants complete two days of community service and are required to make a contribution to the Crime Victims Fund.
Defendants charged with certain license-related offenses can “remedy” the offense by obtaining the necessary license, usually within 60 days, and by, in some cases, paying restitution. In exchange, the Office of the Attorney General will dismiss the charges. Offenses eligible for treatment under this diversion program include:
- Operating with suspended license
- Operating with revoked license
- Driving without a permit
- Operating a business without a license
- Vending without a license
“Post and Forfeit”
The D.C. Superior Court Board of Judges, in conjunction with the Metropolitan Police Department and the Office of the Attorney General, has developed a list of offenses for which the defendant may post and forfeit collateral in exchange for the prosecution’s agreement to dismiss the charges. The defendant pays a certain amount, ranging from $25 to $100 for criminal traffic charges and from $25 to $1,000 for certain misdemeanor charges.
Social Service Referrals
In the case of drinking in public, disorderly conduct, panhandling, and possession of an open container of alcohol, the D.C. Misdemeanor and Traffic Community Court case manager can refer the defendant to alcohol and substance abuse treatment, job training, mental health services, medical care, material assistance, housing assistance, and/or educational programs. Eligible participants are granted a continuance of at least 45 days to take advantage of the program. If the defendant can provide proof of participation at the next status date, the prosecution may dismiss the case.
Deferred Sentencing Agreement
Defendants who are not eligible for any other diversion program may be eligible for a Deferred Sentencing Agreement (DSA). According to this arrangement, the defendant enters a plea of guilty to the offense and the court sets a date for sentencing 6 months to a year later. If the defendant can complete an agreed set of terms before the sentencing date, the court will allow the defendant to withdraw the guilty plea and the prosecution will dismiss the case. Terms may include participating in drug or alcohol treatment, paying restitution, making a payment to the Crime Victims Fund, performing community service, or completing a traffic safety program. If the defendant fails to abide by the terms of the agreement, the court will impose an appropriate sentence.
Source: Superior Court of the District of Columbia, D.C. Misdemeanor and Traffic Community Court, Program Manual of Policies and Procedures, April 2007.