Conditional Deferment (Title 12) for Drunk Driving OffensesDecember 21, 2011
Conditional Deferment, sometimes referred to as the Title 12 Deferral Program, is used in some Indiana counties to address Operating While Intoxicated Charges (OWI/DWI/DUI, etc.). It can also be used to address other crimes, but usually other misdemeanor charges, if deferred, are done so via a Diversions Program. The specific Indiana Code section that applies to the Title 12 Deferral of Drunk Driving cases is IC 12-23-5.
Title 12 of the Indiana Code is entitled “Human Services”. Article 23 is entitled “Addiction Services”. And Chapter 5 is entitled “Conditional Deferment of Judicial Proceedings After Commission of Misdemeanor or Infraction” This Title-Article-Chapter hierarchy explains a lot of what the program is about; treatment/education in lieu of prosecution.
Each Indiana County is different in its approach to the prosecution of Drunk Driving cases. Some counties do not offer Conditional Deferment (Title 12) on drunk driving charges at all, some counties have limitations relating to the Defendant’s blood alcohol level, some counties will not allow a Conditional Deferment (Title 12) if the Defendant refused the breath test. Also, some counties will disqualify an applicant if they have any criminal history whatsoever, while other counties will allow a Conditional Deferment in spite of prior criminal convictions.
Generally speaking a Title 12 Deferral Program (Conditional Deferment) will have the following components:
1. Required Pleadings stating that the abuse of alcohol or drugs played a role in the commission of the offense. (Yes, you admit that you did it and attribute it to an addiction to drugs and/or alcohol). Some courts treat the pleadings as an admission of guilt while others do not. This can become very important if a participant violates a term of the program and is removed therefrom.
In a scenario where the Judge treats the pleadings as an admission and the Defendant is removed/revoked from the Program all that is left to do is Sentence the Defendant (they are already found guilty). In a scenario where the Court doesn’t treat the Pleadings as an outright admission the Defendant, even if removed from the Title 12 Program, can still defend the Drunk Driving Case on other bases (e.g. unconstitutional traffic stop, uncertified chemical test results, etc.)
2. A Deferral period (usually one year). This is a time period in which the Defendant is monitored by the county’s probation department to ensure that the participant completes all requirements and does not engage in any further unlawful activity.
3. At a minimum, completion of a substance abuse program will be required. Depending on the Defendant’s level of substance abuse (or use) Outpatient Treatment or In-Patient/Out-Patient Treatment may be required. Attendance at Alcoholics Anonymous or Narcotics Anonymous may be required.
4. Driver’s License Suspension. Title 12-23-5-5 requires that the participant driver’s license be suspended just as if the Defendant were convicted. Options include Ignition Interlock, a ninety (90) outright suspension, and a thirty (30) day suspension followed by one hundred and eighty (180) on driving probation. This last option is oftentimes referred to as “30/180”.
5. Community Service. Most counties offering Conditional Deferment (Title 12) as an option to resolve Drunk Driving Offenses require this, but not all. Forty (40) hours is oftentimes required.
6. Payment of Fees. All counties must charge fees associated with the program. The fees range from county to county as each county is a little different as to whether it charges all applicable probation user fees (initial, monthly, final). The cost of the substance abuse education and/or treatment will vary. Whether the probation department requires random urinalysis will cause the fees to vary. And whether the county requires community service will cause the fees to vary. There are no fines and court costs technically because there is NOT a conviction. Remember, the proceedings are deferred! Fees typically vary from $500-$1000 all of which are normally payable over the course of the deferral period.
7. Attendance at Victim Impact Panel. This is just what it sounds like. Some counties require the participant to attend a meeting whereat tragedies relating to Drunk Driving are discussed.
Title 12 Consequences:
1. The Indiana Bureau of Motor vehicles will require SR-22 insurance (about 2X expensive as non-SR22 insurance) for three years after the driver’s license suspension terminates. There is no way around this unfortunate outcome other than to challenge the Drunk Driving case on its merits.
2. The Indiana Driver’s Record will always have reference to the Court Ordered license suspension. It is clear on the record that it was a suspension for a Drunk Driving charge.
3. The United States Military looks at a Title 12 Deferral as a CONVICTION. Their rationale is that if the Defendant did something punitive in nature in exchange for the dismissal, then it is a conviction. To make matters worse, the military will treat each charged count that is dismissed as a conviction. Many counties plead their Drunk Driving Charges in an alternative form (one relies on Breath Test, on doesn’t). In these counties if the participant does the Title 12 (Conditional Deferment) on both/all charges, then all are viewed as convictions by the military. This is obviously very important to anyone with a career or considering a career in the military!
4. Also, the case stays pending for the deferral period (usually one year). The pending nature of the charges can sometimes cause problems with internships (elementary education majors) or Clinicals (nursing majors). The pending charges can cause employment problems as well.
Question: “Will this be on my Record?”
I get this question a lot! The question itself is always well intended and a very good one to ask. All too often though, the short answer given “NO”, turns out to be incomplete/incorrect later.
First of all it is important to understand that there isn’t a “record”. The fact that a Defendant was arrested, charged, participated in a Conditional Deferment Program, etc. resides in several places (records).
1. BMV: As stated above the court-ordered suspension, which is clearly associated with a Drunk Driving Case (including specific court, case number, etc.), will be on the BMV report forever if Title 12 is chosen as method by which to handle a Drunk Driving Charge. Oftentimes the SR22 requirement and/or reference of this suspension on the BMV report can have a negative impact on employment opportunities.
2. Arrest Records: Once finger printed, a record of the arrest is placed into an FBI maintained database. If the Defendant had no FBI profile before this, they do after being printed at the jail.
3. Court Records: The courts are NEVER required to destroy their case dockets (chronological case summaries). The docket of any given Drunk Driving case resolved via Title 12 would indicate that a particular person was charged with a Drunk Driving Offense(s), that the Defendant Petitioned onto the Title 12 Deferral Program, and that, if successful, the Defendant’s case was subsequently dismissed.
4. Indiana State Police Criminal Repository: A record of the arrest, criminal charges, and subsequent dismissal will appear when an Indiana Limited Criminal History background check is performed. This is mandatory for Elementary Education majors, Nursing majors, and several other professions. Also, as employers can be much more selective due to the recession, oftentimes a positive search result can have a negative impact on employment opportunities.
NOTE: Current law allows dismissed charges to be sealed as to everyone except law enforcement agencies. The current law, which was recently enacted, does not distinguish between cases dismissed via Conditional Deferment (Title 12) versus cases otherwise dismissed by the prosecutor.
If you feel you need the above records expunged or sealed, please contact my office for a consultation. There are a lot of particular details involved as to whether a dismissed case can be expunged (best option) or sealed (next best option). My office doesn’t charge for expunging or sealing in advance of the outcome, but you should know ahead of time what your options will likely be. (Remember Indiana Law can change).
Is the Title 12 Deferral the best/only option? This depends on several factors and the only way to make a determination is via a consultation.
If you find the above information helpful and need a consultation regarding a drunk driving arrest, please contact my office at your convenience.
As a former deputy prosecutor for Delaware County Indiana I am well equipped to assist you with a drunk driving case or any other criminal matter. I try to pay particular attention to the effects on my clients’ futures. Ball State University Students make up a majority of my current case load, and as a Ball State Alum (95, 02) and current MBA student, I am quite familiar with the campus, the Ball State University Police Department, the presence of the Indiana State Excise Police on the Ball State Campus, and the administrative processes that apply if/when BSU finds out that a student has allegedly engaged in criminal activity.
It is my policy, that once I am retained, every single client has my cell phone number. I look forward to hearing from you!