In Florida, prosecutors created a "special diversion program" designed to offer first-time DUI arrestee a chance to get their lives back on track and avoid jail time and a criminal record. The program was created in 2013. The program is administered only at the option of county prosecutors handling the criminal case. In Florida, first-time offenders could obtain special benefits in the form of diversion. While Florida DUI diversion might help someone avoid steep penalties and avoid a DUI conviction, it is not a program for everyone.

What is Diversion?

First, what exactly is diversion? Generally speaking, diversion is an Assistant State Attorney-run program that circumvents prosecution. The Assistant State Attorney dictates the terms of the diversion program. If the defendant successfully completes the program, he or she may enjoy certain benefits, such as withdrawn charges, reduced charges, or reduced penalties. When a defendant enters diversion, the criminal case is placed on hold. The defendant is given a specific amount of time to complete the terms. If the defendant fails to complete the program, the case goes back before the judge.

Terms of diversion can include:

  • • Community service
  • • Fines
  • • Alcoholics Anonymous or Narcotics Anonymous classes
  • • Counseling or therapy
  • • Detox or treatment
  • • Self-help meetings
  • • Educational classes
  • • Probation or supervision
  • • Other restrictions

Pros of DUI Diversion in Florida

The first-time offenders program in Florida allows drivers who are arrested for DUI for the first time to avoid DUI prosecution by entering into diversion. This allows them to completely avoid a criminal record.

The program varies but may entail:

  • • Pleading guilty to reckless driving (a traffic violation)
  • • Paying a fine
  • • Completing probation, which may require community service, AA classes, self-help meetings, driving courses, or installation of an alcohol monitoring device

A DUI conviction in Florida may prevent you from keeping or obtaining a job, financially supporting your family, finding an apartment, and/or seeking custody or visitation rights of your children. By dodging a criminal conviction on your record, you can avoid the setbacks of having a criminal history, as well as the negative stigma.

In addition, many of the diversion program terms are less onerous than a sentence you would face if you were convicted. For example, fines can be lower, as well probationary terms.

Cons of DUI Diversion in Florida

Despite the apparent benefits of diversion, many first-time offenders have refused the program. Prosecutors are pushing people to enroll in order to reduce their caseloads, decrease court congestion, and aid first-time offenders. However, many of the terms of the diversion program can be quite burdensome. In addition, the terms vary wildly based on which prosecutor is assigned to your case and what happened during your arrest. Finally, it may make more sense to fight your case if the prosecution's evidence is weak.

For example, first-time offenders generally have to complete a DUI course offered by private driving schools. These courses are not free. A variety of fees must be paid in order to enroll. In addition, you must attend class three nights a week for three hours each night. This can be virtually impossible for those who care for children or work in the evenings.

In addition, the prosecutor may ask for an exorbitant number of community service hours to be completed in a short period of time. When you have a job, children, and home responsibilities, you don't have a lot of free time and may find it difficult to finish the required number of hours.

Constructive Versus Actual Possession of Drugs in Criminal and Drugged Driving Cases in Florida

In Florida, it is illegal to possess certain controlled substances, or drugs and chemical substances. To be convicted of possession of a controlled substance, the State must be able to prove that you were aware that the illegal substance was present and that you exercised ownership or control over the substance. Under Florida law, you do not necessarily have to "own" the controlled substance to be found to be in possession of the substance; as long as the State can prove that you exercised control over the substance, you can be convicted of possession.

There are basically two ways to exercise control over an illegal substance: actually possessing the substance and constructively possessing the substance. To actually possess a controlled substance means that you are aware that the substance is present and (1) the substance is in your hand or on you, such as in a coat pocket; (2) the substance is in a container in your hand or somewhere on you; or (3) the substance is so close to you and within reach that it is considered under your control.

On the other hand, to constructively possess a controlled substance means that you are aware that the substance is present, the substance is in a place over which you have control, and you have the ability to control the substance. Mere proximity to the substance is not sufficient to establish that you have control over the substance, particularly if you are in a place that you do not control. A hypothetical example of a constructive possession case is if you are riding in a friend's vehicle and that vehicle is stopped by law enforcement. If during that stop, law enforcement conducts a search of the vehicle and a small amount of meth is found in the center console, Florida law allows the State to pursue a case against both you and the driver of the vehicle, despite the fact that you did not actually possess the meth in your hand or your coat pocket. Because possession of the meth can be joint, meaning both you and the driver knew of its presence, and you jointly exercised control over the meth, you can each be considered to have been in possession of the meth. However, constructive possession cases are more difficult to prove than if you had actual possession as the State must be able to prove beyond a reasonable doubt that you knew the meth was present and that you had the ability to access the meth. If the State is able to prove both elements of constructive possession, then you can be convicted of possession of meth even though you never actually possessed the meth.

Regardless of whether you are charged with actual or constructive possession of a controlled substance, a drug offense charge is serious and should not be taken lightly. Penalties for any drug offense can include hefty fines, lengthy jail time, probation, and even license suspensions.

When a driver is charged with drugged driving in the State of Florida, the prosecutors in the case may not offer the "special diversion program" to a first-time DUI offender. Even if the offender has a clean criminal record.

This is one of the many reasons why individuals who have been arrest need an experienced attorney. To advocate on their behalf and help persuade the prosecution to allow the defendant to enter the "special diversion program." In addition, your attorney might be able to help you reduce or have your drug possession charge dropped by helping you enter into other special 1st-time drug offenders programs.

If you or a loved one have been charged with DUI, drugged driving, and or possession of a controlled substance, or any drug offense, it is critical that you speak with a seasoned and experienced criminal defense attorney right away. The attorneys at the Musca can review the facts and evidence in your case, are here to advise you of your rights and responsibilities, and can help you determine the best strategy for fighting your drug offense charge. Receive your free consultation with Musca Law by calling (888) 484-5057 and let a qualified and experienced Florida criminal defense attorney help you fight your drug offense charge today.

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