In Arizona, deferred prosecution pauses a criminal case while the defendant completes a rehabilitation program and pays any restitution. If the defendant successfully completes the program, the charges will be dismissed. If unsuccessful, the prosecution will resume and any statements the defendant made can be used against them.
1. What is deferred prosecution in Arizona?
In Arizona, deferred prosecution is a voluntary program that diverts a criminal case out of the criminal justice system. It is only an option for minor offenses, usually for drug possession, and for defendants with eligible criminal backgrounds – usually first-time offenders. Prosecutors can offer it after filing a criminal complaint or receiving a grand jury indictment.1
If offered, the defendant can choose to accept deferred prosecution or go through the normal criminal justice system.
If accepted, the defendant does not plead guilty to the crimes being charged. However, statements that they make in accepting deferment can be used against them, if they fail to complete the program. Instead, the prosecutor and court agree to delay the case while the defendant pursues treatment and abides by the term of the program.
The terms of deferred prosecution depend on the defendant and the nature of the criminal charge. For example, the terms for a drug offense will be different than those for a shoplifting charge. The terms are often similar to the terms of probation, and focus on counseling and rehabilitation. Common terms include:
- passing random drug and alcohol testing,
- completing drug or alcohol rehabilitation,
- going to counseling,
- passing educational courses,
- paying victim restitution,
- covering the costs of the program, which is usually around $75 per month, and
- not committing another crime.
These rehab, education, and counseling sessions have to be done at a court-approved program.
Many deferred prosecution programs last between 3 and 6 months. During this time, prosecution is deferred, or suspended, or paused, while the defendant makes his or her way through the program.
Offering deferred prosecution is in the discretion of the county attorney. Only if it is offered by the prosecution can the defendant elect to accept the opportunity. Different counties have different criteria for whether a case is eligible to go through deferred prosecution. The local county attorney’s office is supposed to screen and evaluate each case for possible deferred prosecution. However, sometimes it takes the specific request of a criminal defense attorney to make it available.
2. What happens if the program is completed?
If the defendant completes all of the terms of the program, then their criminal charges are dismissed.2 The defendant benefits from:
- not having a criminal conviction on their record,
- not going through the stressful and rigorous trial process,
- not potentially having to stay in jail pending trial or posting bail,
- resolving the criminal charges quickly, and
- the rehabilitation and recovery program.
3. What happens if a term of the program is violated?
If the defendant violates a term of their deferred prosecution or fails to complete the program, the case against them will be resumed. Any progress that was made in the program will be disregarded. Additionally, the county attorney can use any statements that were made to get into the program against the defendant.
The program supervisor is often the first person to discover that a violation occurred. He or she will then notify the county attorney, who will then file a motion to resume prosecution in superior court.3 The court will then notify the defendant of the resumption and schedule a trial date within 90 days.4 The case will pick up where it left off, with 2 important exceptions:
- the prosecutor may not have to prove probable cause at the preliminary hearing, as the defendant will have likely waived their right to this hearing in order to be accepted in the program, and
- any other statements made by the defendant in the deferred prosecution agreement can be used against them.
Typically, criminal law holds that statements are not admissible if made by the defendant during plea discussions that did not end with a plea agreement.5
However, the Arizona Supreme Court ruled that deferred prosecution is a special supervision or pretrial diversion program, not a plea discussion. This means that statements made by the defendant during discussions about deferred prosecution can be admitted as evidence against them, should prosecution resume.6
This is important because the motion to suspend the proceedings and defer prosecution has to state sufficient facts to show the court that the defendant is eligible for the program.7 This often requires admitting to an essential element of the offense being charged. Having a lawyer from a reputable law firm there to protect your rights at this juncture is critical.
4. How is this different from a diversion program?
Deferred prosecution is a type of pretrial diversion program. However, it is different in that diversion programs are generally open to any defendant who matches certain criteria. It is in the discretion of the county attorney to offer deferred prosecution in Arizona.
5. How is it different from a plea agreement?
Under Arizona law, deferred prosecution is different from a plea agreement because, technically, the defendant does not have to plead guilty or no contest to the offense in order to receive the benefits of the agreement.
Plea deals require the defendant to make a guilty plea in order for their sentence to be reduced. Deferred prosecution merely pauses the case to afford the defendant an opportunity to go through a treatment program that, if completed, leads to dismissal of the charges.
However, the evidence of guilt that the defendant usually has to provide in order to prove eligibility for deferred prosecution can often have the same effect as a normal guilty plea.
6. What offenses are eligible for deferred prosecution?
County attorneys have wide discretion in whether to offer to defer prosecution for a certain charge. However, most prosecution deferments are offered for the following minor offenses:
- possession of marijuana or dangerous drugs,
- possession of drug paraphernalia,
- criminal charges related to substance abuse,
- first-offense of driving under the influence (DUI),
- minor theft offenses,
- minor in possession of alcohol,
- domestic violence, and
- non-domestic violent crimes, like assault.
If it was a drug charge, then the amount of drugs must not have been over the threshold for possession with intent to sell.
7. What defendants are eligible?
The defendant also has to be eligible for deferred prosecution. Again, because the county attorney has lots of discretion in whether to offer the option of deferment, identical defendants may have the option to defer prosecution in one county but not in another.
However, defendants typically need to have the following traits to be offered a deferment:
- a clean criminal history, or at least one without a felony conviction, especially for a dangerous offense, a sexual offense, or a dangerous crime against a child, and
- substance abuse problems.
Generally, defendants have to be a first-time offender to be given the option of a deferred prosecution. However, a skilled criminal lawyer from a local law office may be able to convince the county attorney to defer prosecution on a defendant with a criminal record.
- Arizona Rules of Criminal Procedure 38.1(a).
- Arizona Rules of Criminal Procedure 38.3(b).
- Arizona Rules of Criminal Procedure 38.2(a).
- Arizona Rules of Criminal Procedure 38.2(b) and (c).
- Arizona Rules of Evidence 410.
- State v. Gill, 241 Ariz. 770 (2017).
- Arizona Rules of Criminal Procedure 38.1(b).