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  • Writer's pictureChris Zachar

Your options for resolving an arrest without a criminal conviction

Updated: Sep 23, 2023


Now I need a diversion!

Many clients come to us after being arrested for the first time terrified by the prospect of going through life with a criminal record. A criminal record can have significant consequences ranging from the loss of a job, inability to travel overseas (we'll have more on getting into Canada after your first OWI conviction in a subsequent post), discharge from military service, ineligibility to gun hunt or possess a firearm, loss of student financial aid eligibility, and the loss of a professional license. With the collateral consequences of a criminal conviction only becoming worse, it is more important than ever for attorneys to be aware of the options for resolving a criminal case without a criminal conviction and to aggressively pursue non-criminal outcomes at the beginning of a case.


Non-prosecution / Dismissal


The obvious best outcome to an arrest or criminal investigation is to resolve the matter without any criminal charges being filed at all. In more cases than people might imagine, this is a realistic outcome. Early investigation and intervention by a criminal attorney could be the difference between a charge issued on a police officer's request or no charges being issued at all if a prosecutor is convinced that the allegation can't be proven in court, the alleged victim is not interested in resolving a complaint in the criminal justice system, or there is another solid moral basis (like protecting a person's reputation or career) for not pursuing charges. But the key to this outcome is early intervention shortly after an arrest, because once a criminal charge is issued and appears on CCAP, then it is far more likely that some of the other options will apply.


Deferred Prosecution Agreement (DPA)


A deferred prosecution agreement or "DPA" is almost as good as a decision to not prosecute in that it avoids criminal charges being filed and appearing on CCAP. Formal and informal options might be available. In La Crosse County, we have a formal DPA program for many offenses including drug possession, non-domestic misdemeanor offenses, and other cases that would have otherwise resulted in a criminal prosecution. During a DPA a client agrees to stay out of trouble and perform some basic programming. Oftentimes this can be as simple as a few hours of community service, writing a letter of apology, or doing worksheets on responsible decisionmaking and turning them back in. After a short period of time, normally four months or less, the DA agrees to not file any criminal charges. In other counties this process isn't handled formally, but can often be arranged in exchange for completing an AODA or anger assessment, agreeing to see a counselor, or paying restitution up front for any property that was stolen or damaged. The huge benefit of a DPA is that nobody will ever know that you've been arrested for a criminal offense, and it avoids the prospect of a criminal conviction altogether.


Diversion Agreement


Once a criminal case has been charged, a good option for many first-time defendants is a diversion agreement. These are widely available in our area of practice, with varying degrees of formality. A diversion agreement is almost always post-plea, meaning that a client will enter a plea of guilty or no contest to an offense, but the conviction is not entered. Instead, you agree to stay out of trouble and comply with certain conditions over a period of months, or in some cases, longer, with the expectation that the criminal conviction will be dismissed upon successful completion. This ultimately results in a clear criminal record, but it takes awhile longer than other options and requires good behavior in the meantime. The downside is that if you don't comply with the terms of a diversion agreement they are easy to revoke and you are automatically convicted of a crime when that happens; there isn't an option to go back and demand a trial when that happens, so it is definitely in a client's interest to ensure that they understand and comply with the terms of a diversion from moment one. The nice thing about a diversion is that it can be applied in any number of circumstances that aren't otherwise eligible for a DPA. Diversions can be used in cases involving domestic violence, felony charges, certain sex offenses, or other cases that come with severe collateral consequences like a lifetime firearms ban or sex offender registration. Once a case is dismissed pursuant to a diversion agreement, the charge will ordinarily come off of CCAP after two years, and a client can come see us to wipe their arrest record from the Wisconsin Criminal Information Bureau and the National Criminal Information Center database (where the Department of Justice keeps tabs on your criminal record).


Expungement


In other cases expungement may be the most appropriate means of limiting your criminal record. Expungement means that the public record of a criminal conviction disappears, but the fact that you were convicted of a crime does not. For all practical purposes, people will not be aware of your criminal conviction, but it still exists in the more formal sense, so if you're asked to report criminal convictions, even though it's not available to the public, you should still do so, because it still exists. Expungement is available to certain youthful offenders under the age of twenty-five and for many misdemeanor and low-level felony offenses.

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