“Pay to Play” Deferred Prosecutions

A district attorney generally has discretion in structuring his or her approach to deferred prosecutions. The DA could have a broad program, allowing deferrals for all defendants who might be eligible as a matter of law. Or there could be no program at all (aside from the handful of diversions that are mandatory in certain circumstances). Regardless, whatever program the State has must not discriminate against defendants based on an improper classification. Characteristics like religion and race obviously are not permissible bases on which to condition access to a deferral program. A more difficult question, though, is what role a defendant’s financial situation may play in the State’s decision to defer prosecution.

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“Revoking” Deferral Probation

Do the Justice Reinvestment Act’s limitations on a judge’s authority to revoke probation apply in deferred prosecution and conditional discharge cases? Defendants can be placed on probation as part of a deferred prosecution or conditional discharge. The statutes governing that probation don’t spell out every detail of what it looks like. Instead, they typically incorporate … Read more

Is G.S. 90-96(a) Mandatory or Discretionary?

Whether or not to grant a conditional discharge for an eligible defendant under G.S. 90-96(a) used to be within the discretion of the trial judge. In 2011, Justice Reinvestment made G.S. 90-96(a) mandatory for eligible defendants who consented to it. Two years later, it was once again made discretionary. Or was it?

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Deferred Prosecutions and Guilty Pleas

Local procedures vary when it comes to deferred prosecutions. In general, there’s nothing wrong with that; the district attorney has broad discretion in the deferred prosecution realm. Lately, though, several people have asked me a particular question related to deferred prosecution procedure: Does the defendant actually plead guilty when the deferral is entered?

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Hurry Up and Have that DWI Expunged

If you’ve been dragging your feet about having an old DWI expunged, you had better hurry up. A law enacted last week removes convictions for offenses involving impaired driving from the types of convictions that may be expunged. The change is effective for petitions filed or pending on or after December 1, 2015. So if you are eligible for such an expunction, your window of opportunity is closing fast.  Read on to find about the other changes S.L. 2015-150 makes to the state’s DWI laws.

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90-96 for Everything

G.S. 90-96 sets out a conditional discharge option for certain drug offenses. A conditional discharge is different from a deferred prosecution. In a conditional discharge program, the defendant is convicted (either after a trial or by pleading guilty), but then placed on probation without the court actually entering judgment in the case. If the defendant … Read more