3.2 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.

A survey of prosecutors found that of defendants who plead guilty, 67% negotiated a plea agreement resulting in a reduced penalty (Robertson & Simpson, 2002). 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 DWI offenses and to have their penalties reduced or eliminated. Offenders pleading guilty to lesser offenses are of concern to prosecutors, judiciary, and advocacy groups because avoiding the original DWI charges result in no conviction records for the offenders (Walden & Walden, 2011). However, deferred adjudication provides other sentencing options but keeps convictions on record temporarily. Thus, in the case of a second offense, sanctions can still be increased as long as the deferred conviction is still in the record.

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 offender records (Hedlund & McCartt, 2002; Goodwin et al., 2005; NTSB, 2000; Robertson & Simpson, 2002). Otherwise, offenders who recidivate will receive less severe penalties than if the original charges had been retained on their records.

Use: As of 2006 there were 33 States that provided for diversion programs in State law or statewide practice. Local courts and judges in some additional States also offer diversion programs (NHTSA, 2006c). The Century Council (2008) documented diversion programs restrictions in several States. As of December 2014 there were 22 States that had laws limiting plea agreements in certain cases (NHTSA, 2016a).

Effectiveness: The evidence for the effectiveness of diversion programs has been mixed (Voas & Fisher, 2001). Although a few studies have shown diversion programs reduce recidivism, others have shown no benefits. However, there is substantial anecdotal evidence that by eliminating the offenses from the offender records, diversion programs allow repeat offenders to avoid being identified (Hedlund & McCartt, 2002). Eliminating or establishing limits on diversion programs should remove a major loophole in the DWI control system.

Another component of the plea agreement is the duration of pre-trial elapse time that offenders take to accept charges. Prolonged pre-trial procedures involving conviction avoidance and “not guilty” pleas can result in high court costs. (Ma et al., 2016). In an evaluation performed in Ontario, first-time alcohol-impaired offenders were compared according to whether they pled guilty before (early) or after 90 days. The comparisons between groups of offenders in the “early” and the “after-90 day” plea groups did not demonstrate differences in recidivism. However, the evaluation showed a reduction in the duration of pre-trial process, reductions in court costs, and increases in installation rates of ignition interlocks under the Reduced Suspension With Ignition Interlock Conduct Review program.

Wagenaar et al. (2000) reviewed 52 studies of plea agreement restrictions applied in combination with other DWI control policies and found an average reduction of 11% across  outcome measures such as rates of crashes/fatalities/injuries, alcohol-involved crashes, and roadside BACs. 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 & Koons, 1989; NTSB, 2000). It found that plea agreement restrictions reduced recidivism in all three study communities.

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, some charges may be dismissed or some offenders may request full trials, resulting in significant costs.

Time to implement: Eliminating or limiting diversion programs and restricting plea agreements statewide may require changes to State's DWI laws. Once legislation is enacted, policies and practices can be changed within 3 months. Individual prosecutor offices and courts may change local policies and practices without statewide legislation.