Although not commonly used throughout the state, there is a law which creates an avenue for somebody to have their OVWI/DUI case dismissed. The process is called conditional deferral, commonly called a Title 12 deferral and is allowed under Indiana Code 12-23-5. According to this law, if somebody is charged with a crime under IC 9-30-5 (generally, operating a vehicle while intoxicated or operating a vehicle with a BAC above .08), as long as it’s a misdemeanor-level offense, the court may defer the proceedings for up to a year. While the proceedings are deferred, the court may require the defendant to complete an alcohol and drug services treatment program if the use of alcohol or drugs was a contributing factor or a material element of the offense.
Likewise, if the court finds that a mental illness was a contributing factor, the court may order mental health treatment. The court may also order any other appropriate conditions while the case if being deferred. One of the requirements that the court must order when deferring a case involving charges under IC 9-30-5 is that the defendant’s driver’s license will be suspended for at least 90 days, but no longer than 2 years. The court may also allow probation driving privileges as well as ordering an ignition interlock device. If the defendant satisfies all of the requirements ordered by the court, the court shall then dismiss the charges once the deferral period is complete. A defendant is not eligible to have charges under IC 9-30-5 dismissed according to this law if they previously had charges under IC 9-30-5 dismissed pursuant to a conditional deferral.
Conditional deferral is actually available for any misdemeanor or infraction in which the use of alcohol or drugs was a contributing factor or material element of the offense or the defendant’s mental illness was a contributing factor. However, a conditional deferral is not available if any of the following conditions exist:
(1) The offense involves death or serious bodily injury;
(2) The defendant has a record of at least two (2) prior convictions of forcible felonies
(3) Other criminal proceedings, not arising out of the incident, alleging the commission of a felony are pending against the defendant;
(4) The defendant is on probation or parole and the respective authority does not consent to the defendant’s participation in the deferral; or
(5) The defendant fails to meet additional eligibility requirements imposed by the court.
While available to all courts throughout the state, many counties don’t allow conditional deferrals when it comes to drunk driving-related offenses because in order for a defendant to enter a conditional deferral, the prosecutor’s office for that county must agree and that’s just something a lot of prosecutor’s are not willing to do for OVWI/DUI cases. Those counties that do agree to conditional deferrals for OVWI/DUI cases oftentimes impose certain requirements before they’ll allow a defendant to enter the deferral such as not allowing a deferral if one’s blood alcohol is above a certain limit; not allowing a deferral if they refused a chemical test; not allowing a deferral if they caused an accident; or not allowing a deferral if the defendant has any other have any prior criminal history.
Even if a certain county doesn’t allow conditional deferrals, there are other options that may be available that would create the opportunity to get certain cases dismissed. These options are Pretrial Diversion Programs and Conditional Discharges, both of which have been discussed in separate blogs and depend heavily on the type of case along with the defendant’s prior criminal history.
If you or anyone you know is facing criminal charges, there may be a way to get that case dismissed, even if it’s a drunk driving case! Call the experienced Indianapolis DUI Lawyers at Banks & Brower, LLC today. We handle criminal cases throughout the state and can assist you in determining whether a conditional deferral is possible or whether a Pretrial Diversion Program or Conditional Discharge is an option. We are available 24/7 at firstname.lastname@example.org or 317.870.0019.