A new bill passed last month extends the option of conditional discharge to a wider range of crimes than was available before. A conditional discharge is when a defendant is found guilty by a judge or jury but is placed on probation without the judge entering a judgment in the case. If the defendant successfully complies with the conditions of probation, the court dismisses the charges and the defendant has no conviction. If the defendant does not comply with the terms of his probation, the court can enter an adjudication of guilt and then sentence the defendant.
This option has been available for certain drug offenses under G.S. 90-96. However, S.L. 2014-119, passed last week and effective December 1, 2014, extends this option to a Class H or I felony and any misdemeanor that would be eligible for deferred prosecution. The new law will found in G.S. 15A-1341(a4), which will state
Whenever a person pleads guilty to or is found guilty of a Class H or I felony or a misdemeanor, the court may, on joint motion of the defendant and the prosecutor, and without entering a judgment of guilt and with the consent of the person, defer further proceedings and place the person on probation as provided in this Article for the purpose of allowing the defendant to demonstrate the defendant's good conduct if the court finds each of the following facts:
(1) Each known victim of the crime has been notified of the motion for probation by subpoena or certified mail and has been given an opportunity to be heard.
(2) The defendant has not been convicted of any felony or of any misdemeanor involving moral turpitude.
(3) The defendant has not previously been placed on probation and so states under oath.
(4) The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.
To figure out which misdemeanors are eligible for deferred prosecution, we look at G.S. 15A-1341(a1). It provides that
A person who has been charged with a Class H or I felony or a misdemeanor may be placed on probation as provided in this Article on motion of the defendant and the prosecutor if the court finds each of the following facts:
(1) Prosecution has been deferred by the prosecutor pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct.
(2) Each known victim of the crime has been notified of the motion for probation by subpoena or certified mail and has been given an opportunity to be heard.
(3) The defendant has not been convicted of any felony or of any misdemeanor involving moral turpitude.
(4) The defendant has not previously been placed on probation and so states under oath.
(5) The defendant is unlikely to commit another offense other than a Class 3 misdemeanor.
Impaired driving offenses are specifically excepted from the structured sentencing provisions of Article 81B pursuant to G.S. 15A-1340.10 which states that “This Article applies to criminal offenses in North Carolina, other than impaired driving under G.S. 20-138.1.” However, the conditional discharge statute, G.S. 15A-1341, is contained in Article 82 which contains no such specific exception. Therefore, it appears that impaired driving offenses would be included in the offenses eligible for conditional discharge.
But it is important to note that both conditional discharge and deferred prosecution require the consent of the prosecutor and the court. Although it appears that impaired driving offenses would be eligible under the new language of the statute for conditional discharge, it seems unlikely that a prosecutor or judge would agree to a conditional discharge in the case of an impaired driving offense, especially since the trend has been to be tough on impaired driving offenses.
One argument a prosecutor or judge might use in opposing a conditional discharge in the case of a DWI defendant would be the possibility of recidivism or recurrence of a DWI, the associated risks of which might outweigh the defendant’s chance to “demonstrate [his] good conduct.” A study prepared for the North Carolina General Assembly in December 2011 looked at the recidivism rates for DWI offenders who completed both short-term and long-term substance abuse treatment programs. After one year, only 4.5% of those who had completed the short-term program and 4.7% of those who had completed long-term programs had been re-arrested for DWI. When the period was extended to three years after completion, the percentages increased to 13.4% and 12.0% for those who completed the short-term and long-term programs, respectively.
However, the study noted that “[a] large proportion of those driving while impaired go undetected and estimates based on roadside surveys suggest that the number of times a person drives drunk before being arrested has ranged from 300 to 2,000.” This figure might be used to argue that simply because a DWI defendant has not been re-arrested for DWI does not mean that he has not driven while impaired after completing the treatment program.
Another interesting statistic is contained in a report prepared by the DHHS for the North Carolina General Assembly in February 2014, which looked at data obtained from the NC Judicial Branch. This data showed that of the people who were assessed and recommended for treatment under North Carolina statute, only about 60% completed their treatment. The low recidivism rates quoted in the December 2011 study do not include all of those arrested for DWI, only those who have completed treatment, and exclude 40% of those who were recommended for treatment. We don’t know the recidivism rates for those who don’t complete treatment, but remember that under the conditional discharge provision, if a defendant does not comply with the terms of probation (which could include completion of a treatment program), a judge then enters an adjudication of guilt and sentences the defendant.
Regardless of the numbers and data, however, it might be difficult to use any of these statistics to convince a prosecutor or judge to apply the new conditional discharge provision in a DWI case simply because it would not be popular to do so.
If you have been arrested for DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.