Pre-Trial Diversion - PowerPoint Presentation

Slide1

Pre-Trial Diversion

Infraction Deferral &

Bad Check Programs

Kristen E. McVey

CDPA, Tippecanoe CountySlide2

Pre-Trial

Diversion v. Infraction Deferral

Pre-Trial

Diversion – applies to misdemeanor and Level 5 and 6 felony cases

Infraction

Deferral - applies only to infraction cases – but is

NOT available

to CDL holders (driving commercial vehicles)

Pre-Trial

Diversion - I.C. 33-39-1-8

Infraction

Deferral - I.C. 34-28-5-1Slide3

Infraction

Deferral

Applies to all types of infractions.Slide4

What cannot be deferred?

Any

infraction involving the operation of a commercial motor vehicle.

Any

infraction committed by a probationary license holder that is <18 years of age. Slide5

Misdemeanor or Felony

Diversion

Applies

to

most

misdemeanors and

most

Level 5 and Level 6 felonies.Slide6

What cannot be diverted?

Murder, Level 1, 2, 3 or 4 felony cases.

Cases where a person has

a commercial driver’s license (CDL)

and

who has been charged with an offense involving the operation of a motor vehicle

in accordance with the federal

Motor Carrier Safety Improvement Act.

OWI of any kind.

Minor Consumption/Poss./Transportation of Alcohol in which the offender was driving.Slide7

What cannot be diverted?

An

offender that commits Criminal Mischief with a Vehicle while on a probationary license and being <18

yoa

.

Obstruction

of Traffic with a Motor Vehicle – Class A misdemeanor (but…).Slide8

Considerations

Consider:

nature of the offense

facts, circumstances

criminal history of the offender

victim input

existence of alternate consequences/programs

any mitigating or aggravating circumstancesSlide9

Requirements

These

are post-filing agreements.

Cannot

negotiate diversions prior to IH in front of judicial officer

Must

be in writing

Must

be filed as publicly available documents, no “secret” agreements

All

monies must be deposited directly into the clerk’s office

Your office cannot handle the money at all.

Use

local ordinance to create

separate

diversion and deferral funds in the auditor’s office if not already in place.

Requires

a local enabling ordinance that is non-reverting to create the fund. Slide10

Diversion Terms

See I.C. 33.37.4.1

pay prescribed fee to clerk’s office

restitution

maintain employment

get counseling

a no contact order

Includes

provision that any other term not described may be included

with court approval

Does

not discuss refraining from alcohol or drug useSlide11

Pitfalls

Lawfully

you can divert Level 5 felonies – which include things like Reckless Homicide

I would recommend NOT doing this.

Policy

– put a policy into place to guide your DPA as what they can and cannot divert

Spending

the money incorrectly. Be careful to spend it only on what is permitted under the statute.

Victim

notification is still required – don’t neglect.Slide12

What can you spend the money on?

(1)

Personnel expenses related to the operation of the

program

(2

) Special training for

: (

A) a prosecuting attorney

; (

B) a deputy prosecuting attorney

; (

C) support staff for a prosecuting attorney or

deputy prosecuting

attorney;

or (

D) a law enforcement officer

.

(

3) Employment of a deputy prosecutor or prosecutorial support staff

.

(

4) Victim assistance

.

(

5) Electronic legal research

.

(

6) Office equipment, including computers, computer software

, communication

devices, office machinery, furnishings,

and office

supplies

.

(

7) Expenses of a criminal investigation and prosecution

.

(

8) An activity or program operated by the prosecuting

attorney that

is intended to reduce or prevent criminal activity, including

:

(

A) substance abuse

; (

B) child abuse

; (

C) domestic violence

; (

D) operating while intoxicated;

and (

E) juvenile delinquency

.

(

9)

Any other purpose that benefits the office of the

prosecuting attorney

or law enforcement and that is agreed upon by

the county

fiscal body and the prosecuting attorney

.

These funds may

be used only

in accordance

with guidelines adopted by the prosecuting

attorneys council

under IC

33-39-8-5

.Slide13

Electronic Transmission to IPAC.

IC

33-39-1-1(c)(4) and IC 34-28-5-1(h)(6)

require

electronic transmission (via

ProsLink

) of certain information from each deferral or diversion once executed. Slide14

$Money

Strict rules as to how much you can charge.

Strict rules as to how much of it you receive.

Strict rules as to what you can spend it on.

You

CANNOT

pay yourself with it.

Do

not

budget based on anticipated receipts.

ALL expenditures have to be approved by the

county fiscal body BUT you are limited by the law about what you can spend it on – and they cannot make you spend it on statutorily unapproved things.Slide15

Bad Check Programs

Can just handle these as regular part of diversion program

Problem

 they

are high maintenance in terms of monitoring for payment of restitution.

Option

 a program that permits merchants to present bad checks directly to the program before review for charges.Slide16

Corrective Solutions

THIS is NOT an endorsement or advertisement of their services – just showing you what we do.

It is a program that permits merchants to directly submit bad checks to the program for review, processing.

YOU are in charge of the guidelines and details of the program.

15 counties in IndianaSlide17

Tippecanoe County

Bad Check Program

http://www.checkprogram.com/staticwebsites/tippecanoecountyin

/

Web site that merchants can directly visit and view:

It educations merchants as to good check acceptance practices.

It gives guidelines for acceptance of checks into the program

It provides info for getting restitutionSlide18

Tippecanoe County

Bad Check Program

Make guidelines for acceptance into the program very clear

Avoid post-dated checks, checks pursuant to contracts or civil agreements, rent check, checks pursuant to real estate or land contracts etc.

Be sure to include mechanisms by which subjects who have suffered identify theft can be removed (upon presenting a theft affidavit etc.)Slide19

Tippecanoe County

Bad Check Program

How does it work?

Merchants complete and submit Bad Check Report and provide all required and necessary documentation.

The program even instructs the merchants about how to write and send “bad check notices” to check-writers.

The program reviews the checks and documentation for compliance with program requirements.Slide20

Tippecanoe County

Bad Check Program

The program contacts the check-writers with a letter inviting them into the program as a way to avoid review for criminal charges.

The program requires that they:

Attend a class about financial responsibility

Pay restitution and any statutory service fees

Pay a fee (some of which goes to the program, some of which goes to you)Slide21

Tippecanoe County

Bad Check Program

What happens if the check-writer refuses or fails to complete the program?

The check and all documentation are sent to prosecutor’s office for review for filing of criminal charges.Slide22

Bad

Check Program – Things to Know

Tell the program if you want them to call or contact check writers by phone or email about compliance – be warned – they can get aggressive if you them.

Be sure to make it clear that check-writers can get out if they provide a theft affidavit or police report indicating they were victim of theft or identity deception. Slide23

Bad Check Program –

Things to Know

You will make less money doing this as compared to just regular diversion program.

But – the payoff is in not spending a lot of time and resources dealing with merchants, reviewing checks, chasing restitution etc.

This is a great benefit to merchants – they can avoid dealing with court.

This is a benefit to check-writers who can avoid prosecution.Slide24

Bad Check Program Logistics

Be sure to make your expectations for how the program works clear to program management.

Create a local ordinance that creates an account in your auditor’s office for the specific deposit of these funds.

Treat and track all expenditures the same way as other diversion funds

Slide25

Bad Check

Program Restitution Amounts

2013 = $8924.55

2012

= $

11,972.44

2011

= $

15,897.83

It is a good thing if your numbers decrease – and it makes sense as fewer and fewer people use checks anyway.Slide26

Bad Check Program Numbers

Number of Checks

2013 = 149 (172 screened out as ineligible)

2012

=

263 (249 screened out as ineligible)

2011

=

377 (244 screened out as ineligible)

Also

, the number of ineligible checks that get screened out gets smaller as merchants and others learn what is acceptable and not.Slide27

Bad Check Program

Number submitted for review

2013 = 8

2012

=

9

2011

=

14

So

given the amount of upfront work saved, it has been a benefit to our office.