TOP 10 Mistakes People Make While In Diversion
Diversion is a program that can keep the DUII case from becoming a conviction. Diversion does not erase the arrest or come off the record (DUII arrest can’t be expunged if the case was dismissed through a diversion program). Not all cases are eligible for diversion and not every case should be handled through the diversion program. The attorney has an ethical obligation to review the possible defenses, both legal and factual defenses that a person accused of DUII may have. The diversion obligations are set by statute but not all diversions are the same. Here are the top ten mistakes a person can make while in the diversion program.
- Entering diversion without taking the requirements seriously. For example, drinking or using non-prescribed drugs while in diversion is against the rules and can lead to revocation. The lawyer should discuss the diversion obligations with the client before entering diversion to make sure the client knows what is required.
- Most judges/courts do not do a good job of explaining where to go to make sure the diversion starts on the right track. Knowing how to pay, where to pay, what to attend and who to contact can help the client get in a routine to ensure success.
- Failing to keep the court appraised of your address. This is important because the court will mail a letter of non-compliance if something is missing. Sometimes the court simply needs the treatment provider to re-send the completion certificate to the evaluator. If the client doesn’t receive the letter, there could be a missed court date and that can lead to revocation of diversion.
- Testing positive on the ignition interlock device can lead to revocation. Diversion requires absolute sobriety but the ignition interlock device is there to catch people who consume alcohol (sometimes the night before) and then blow into the device to start their car.
- Not asking for an extension within the last 30 days of diversion if an extension is needed. Sometimes the court will extend diversion if the client has shown a good faith effort to complete the diversion but hasn’t completed. This needs to be filed before the end of the diversion period.
- Having an open container such as a bottle of wine that has been opened and is within reach of the driver or passenger. To avoid problems, it is better to transport the alcohol containers in the trunk.
- Going to the victim impact panel (2 hour class) without cash payment. Most victim impact panels require the fee to be paid in cash. If the victim impact panel is missed then it is a good idea to reschedule and appear with the money. There can be a breath test given to attendees at the victim impact panel.
- Making diversion a priority is a requirement. If the client knows they will not follow through or won’t follow the rules, the client should consider that when evaluating if diversion is the best course of action. If a person is revoked from diversion it becomes a DUII conviction.
- Not filing a motion to dismiss if the jurisdiction requires a motion to be filed to get the case dismissed.
- Contacting the lawyer as soon as possible if there are problems in the diversion such as false positive tests on the ignition interlock devices. For example, if there is a false positive it is helpful to rinse your mouth with water and re-take the test. Having a urine test to show the client was not drinking can avoid a revocation hearing.