So, you have just been arrested for the first time. You go to court. You are advised that you are eligible for a diversion program offered to first-time offenders that will result in a dismissal of your charges. No big deal right? You do a few months of probation, pay a few hundred dollars, complete some community service hours, and the charges are dismissed!
However, if you are an undocumented alien or legal permanent resident, accepting certain diversion programs could result in your inadmissibility or removal from the United States. For example, a conviction for a controlled substance violation or a crime involving moral turpitude could result in deportation from the United States.
The critical question is whether the terms of your pretrial intervention or diversion agreement results in a “conviction” under immigration law. A conviction in immigration law is defined much more broadly than in criminal law. Under INA 101(a)(48), a “conviction” is defined as a formal judgment of guilt entered by the court or, if adjudication has been withheld, where:
- A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
- The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Because a pre-trial intervention or diversion agreement can result in a conviction under immigration law while resulting in a dismissal under criminal law, it is important to have the pre-trial intervention or diversion contract reviewed by an experienced criminal defense and immigration attorney. If you accept a diversion program to a crime that renders you deportable or inadmissible, you could negatively impact your immigration status.
Here are some examples of how common diversion programs in Miami-Dade, Broward, and Palm Beach counties can affect immigration status. Please understand that these are just general examples and each person’s case must be reviewed independently by a qualified attorney.
Misdemeanor Pre-Trial Diversion (PTD) And Felony Pre-Trial Intervention (PTI) Programs
The Misdemeanor Pre-Trial Diversion and Felony Pretrial Intervention programs are generally offered to first-time offenders. The program must be offered by the State Attorney’s Office and generally, the applicant must have no prior criminal record. The requirements of PTD and PTI are similar to probation and relate to the type of crime charged. If you successfully complete the requirements, the State will dismiss your charges at the end of the probationary period. Here are the general requirements that are associated with common misdemeanor and felony charges:
- Theft– Shoplifting Class
- Drug Charges– Drug and Alcohol Education Classes
- Child Neglect and Abuse – Parenting Classes
- Battery and Assault– Anger Management Classes
- Weapons and Firearms Charges– Carrying a Concealed Weapon Class
- Multiple Arrests or Convictions – Faulty Thinking & Values Clarification Class
- Boating, Fishing, and Wildlife Charges – Florida Fish and Wildlife Class
- Driving While License Suspended Canceled or Revoked – DWLS class
- Criminal Transmission of HIV – HIV/AIDS Class
- DUI – Back on Track Program
PTI and PTD are offered in Miami-Dade, Broward, and Palm Beach Counties. However, each county’s diversion program is run differently. The different procedures could have a huge impact on your immigration status if you are not a United States citizen.
In Palm Beach County, offenders are typically required to sign a form admitting guilt to the charges as a requirement of entering the program. In Broward County, the procedure is even worse. In Broward County, offenders not only must admit guilt to the crime, but must also provide a sworn affidavit detailing the specific facts that occurred in their case. Miami, on the other hand, has no requirement that the offender admit to guilt prior to entry into PTI or PTD.
The admission of guilt can have a significant impact on immigration status. Remember, in immigration law, a conviction can occur even if your charges are dismissed! If you sign an admission of guilt, or admit to sufficient facts constituting a crime, that is a “conviction” in the eyes of immigration.
Therefore, if you are not a United States citizen, you should be careful about accepting the Pretrial Intervention Program or the Pretrial Diversion Program.
Deferred adjudication is a type of diversion where you physically go to court and formally enter a plea of guilty to the charge. However, instead of sentencing you, the Judge will reset the case long enough for you to complete a probationary sentence that satisfies the State Attorney’s Office. After you complete all conditions of probation successfully, the case will go back to court for sentencing. Instead of receiving a conviction at sentencing, however, the State will allow you to withdraw your guilty plea and they will dismiss the charges.
Broward and Palm Beach Counties offer this type of program. Palm Beach refers to it as a “Plea and Pass”. Broward reserves this option for out of state Defendants.
Deferred adjudication almost certainly will result in a conviction for immigration purposes. Under immigration law, a person may not withdraw a plea for rehabilitative or immigration purposes. There must be some procedural or substantive constitutional error during the plea process to overturn the conviction for immigration purposes. Therefore, if you agree to this option in your criminal case, and you are not a U.S. citizen, you will more than likely have a conviction on your record in the eyes of immigration.
Drug Court is a type of diversion program offered to people with serious drug addictions. Drug Court is offered in Miami-Dade, Broward, and West Palm Beach Counties pursuant to Florida Statute 948.08. To qualify for Drug Court, a defendant must generally be charged with a drug crime involving possession for personal use, rather than a drug crime where there is evidence of trafficking, selling, or intent to sell. Drug Court applicants can have prior criminal records, however, applicants with violent felony records, prior convictions for drug sale or trafficking, or multiple felony non-drug related offenses, are ineligible.
Drug Court lasts a minimum of 12 months and the requirements are more intensive than regular probation. Defendants will be required to complete programs, extensive evaluations and treatment, and random urine screens. However, the Drug Court will generally be more sympathetic to violators than with regular probation. The goal of Drug Court is rehabilitation rather than punishment.
Just like the previously mentioned diversion programs, Drug Court can have a negative effect on immigration status. First, many Drug Court programs require a plea or an admission of guilt prior to entering the program. This would result in a controlled substance violation and would make the defendant immediately deportable. Second, Drug Court programs often require the offender to admit that they have a drug problem or are addicted to drugs. Under INA 212, an alien is inadmissible who is determined to be a drug abuser or addict. Therefore, an admission to an addiction to drugs could result in inadmissibility if you leave the United States or certain bars to immigration relief if you are placed in removal proceedings.
Miami Attorney for Pre-Trial Intervention Programs and Pre-Trial Diversion Programs
Each pre-trial intervention and pre-trial diverison has its own eligibility requirements, advantages, and disadvantages. It is important to consult an experienced criminal defense attorney like the team at Hubbs Law in Miami.
Miami Diversion Programs Information – Advocate Care Program – http://advocateprogram.com/pretrial-diversion-and-probation-supervision/
Miami Diversion Programs Information – Court Options – http://www.courtoptions.org/pretrial.html
Miami Drug Court – http://www.miamidrugcourt.com
Broward County Diversion Programs – http://www.sao17.state.fl.us/diversion-programs.html
Broward County Felony Pretrial Intervention Guidelines – http://www.sao17.state.fl.us/felony-pti.html