Lawsuit Threatens Deferred Prosecution Programs Statewide

A common practice in municipal courts throughout the state is to offer what is known as a deferred prosecution to first time DUI offenders. A deferred prosecution is a program whereby an offender agrees to participate in alcohol education and counseling, along with other requirements, in order to earn a dismissal of the DUI charge. While not appropriate in every case, a deferred prosecution is an attractive alternative to defending on the merits a case where the likelihood of success is low. However, the deferred prosecution program as we know it is in jeopardy of extinction, thanks to a lawsuit filed in federal court on September 7, 2012. The lawsuit alleges that the deferred prosecution in the Albertville Municipal Court, which is very similar to programs offered throughout the state, is unconstitutional, as the program requires participants in the program to pay $500 in “restitution” in order to participate in the program. Clearly, the restitution requirement is a farce-the sole reason for insertion of such a term in deferred prosecution agreements is to ensure that municipal bureaucrats will not object to such programs on the basis of lost revenue. But lawyers, as well as clients, have not complained, gladly paying the restitution in order to secure a dismissal. That is, until now.  A number of jurisdictions are now re-evaluating their deferred prosecution programs, and at least one court has already suspended their program pending the outcome of the Albertville litigation. This is unfortunate, as studies show that first time DUI offenders that participate in such programs have a surprisingly low rate of recidivism.