Hot off the presses, here are the U.S. Attorney’s new, published eligibility requirements for Deferred Prosecutions Agreements (DPA’s). DPA means 32 hours of community service and your marijuana charge is dismissed.
But, Deferred Prosecution Agreements are written and controlled by the U.S. Attorney’s office. No one has a “right” to a DPA. The government has the option of offering DPA or not on a case-by-case basis. Likewise, even if you don’t technically qualify, your attorney can still go to bat for you in your individual case.
To review, a Deferred Prosecution Agreement (DPA for short) means that your case is place on the inactive docket (usually for 120 days). If you complete what you agree to do (usually 32 hours of community service), and don’t get arrested on a new case, the case will be dismissed.
This procedure is similar to “adjournment in contemplation of dismissal,” used in Virginia marijuana cases, and the “stet docket” in Maryland. Be of good behavior, do some community service, and your out of there.
A big advantage of the DPA deal is that now you never have to admit that you did anything wrong, enter a guilty plea, or be found guilty by the judge – requirements for another first-time offender program, §904.01(e) probation. With section 904, you have admit your guilty, then ask the judge to withhold entering the guilty verdict.
On the other hand, the big disadvantage of DPA in marijuana cases is that you also don’t get the automatic expungement provisions of §904. If you complete your section 904 probation, the expungement is automatic. With DPA, you have to wait 3 years and file a motion to clear your name.
Which is best for you, in your particular circumstance, can only be determined through consultation with your own attorney, based on your life, and the circumstances of your case.
- Here’s the U.S. Attorney’s Office Published DPA Program Requirements:
For a defendant to be eligible to DPA, you need two or fewer prior convictions in the past 10 years. DPA is not available for PCP, possession with the intent to distribute (PWID), distribution, or a firearm offense. However, I have been successful in having PWID marijuana reduced to simple possession with the aim of meeting DPA guidelines.
A defendant cannot have been convicted of any firearm offense, sex offense (except solicitation of prostitution) or violent felony within the past 10 years.
A defendant cannot get a DPA if he/she has previously been given diversion in DC in a case brought by the U.S. Attorney’s office. (Attorney General cases apparently do not disqualify, i.e. DWI diversion doesn’t count)
A defendant cannot currently be on probation, parole or supervised release, or be currently charged with a dangerous offense (as defined in D.C. Code §23-1331).
A defendant cannot have two or more pending cases in Superior Court (except, again, those brought by the Attorney General), or be in the Mental Health Community Court. (Other diversions options are available there)
In cases which charge simple assault, threats, or assault on a police officer (APO misdemeanor), DPA is only available with the permission of a U.S. Attorney supervisor.
During the 120 day DPA period, a defendant must seek or obtain employment, or continued education, and abide by any applicable curfew or stay-away orders, if these were entered earlier.
If your circumstances have changed, and a previously imposed a curfew or stay-away order is non-longer practical, you must have the order changed prior to entering into DPA.
You must test negative for drugs at arraignment, or if positive, produce 3 consecutive negatives before eligible. As reported earlier, Pretrial Services is no longer routinely screening for Marijuana, but is for cocaine, opiates and PCP.
Please be aware that these eligibility requirement has changed at least twice in the past 12 months, so there is no guarantee that the prosecutor will follow these rules in the future. Whether this program is available or appropriate for you can only be decided by you in consultation with your own attorney.