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A deferred prosecution agreement (DPA) in Wisconsin allows some defendants to have criminal charges reduced or dismissed if they plead guilty, comply with court-ordered conditions, and avoid new legal violations during a supervision period. Because eligibility is limited and violating the agreement can lead directly to sentencing on the original charges, an experienced criminal defense attorney can help determine whether accepting a DPA is the right choice.
A deferred prosecution agreement (or DPA) is where a defendant is given the opportunity to have their criminal charges amended or even dismissed if the defendant can be compliant with the terms set out by the District Attorney’s Office. This is an opportunity that arises during the criminal legal process for a charge, but it is not offered to everyone. The defendant would need to be willing to be monitored for a certain period of time, would need to be willing to complete certain conditions as outlined by the State, and be able to avoid any further law violations while the DPA is pending.
Upon successful completion of the DPA the defendant’s charges would be amended to a lower criminal charge, a non-criminal citation, or even dismissed. However, if the defendant fails to successfully complete terms of the agreement, the DPA would be revoked and the defendant would be sentenced on the original charges.
In a deferred prosecution agreement a defendant would first be required to enter a plea on the record to a criminal charge or charges. Then instead of proceeding towards sentencing, the State motions for the court to keep the case open for a specified period of time, called the deferral period. The time the case is held open is typically between six to twelve months, but it can be longer.
During this time the defendant would be required to do a combination of certain tasks that are laid out in the agreement. These tasks could include:
Every DPA is different and the conditions are typically tailored to the alleged crime and facts of the case. During the pendency of the deferred prosecution agreement the defendant is also required to not commit any new crimes that rise to the level of probable cause. This is important because a defendant does not necessarily need to be found guilty of a new crime for the DPA to be revoked. If a defendant is charged with a new crime, this is usually enough to be seen as a violation of the DPA.
If all conditions and requirements are met by the end of the DPA term without any violations, then the defendant’s charge would be amended to a lower level charge, or amended to a citation, or dismissed. The terms of the DPA are different each time but would be made known to the defendant prior to entering the agreement. The terms of the DPA can also be negotiated prior to entering into the agreement.
Whether or not to enter into a DPA depends on the facts of the case, the strength of the evidence in the case, and the defendant’s goals for their case. A defendant would need to consider:
This is a balancing act. A defendant will also need to weigh out the likelihood of successfully challenging the case via trial or motion hearing versus the benefit of accepting the State’s terms as laid out in the DPA. There is always a certain risk when taking a case to trial.
A deferred prosecution agreement allows the defendant to have much more control over the outcome. However, at the same time a DPA requires a plea to be entered on the record and so the right to challenge the case through a motion hearing or trial is then forfeited. This means that there is no going back once the DPA is in place.
One final thing the defendant should consider is which route is the most cost effective way of getting to the ultimate goal. Trials and motion hearings can be expensive and it may prove to be much more cost effective to complete a DPA instead of litigating the case. Once again, whether it would be prudent to enter into a DPA will vary from case to case, and a thorough discussion with a skilled defense attorney can help determine the best path forward.
In Wisconsin, in order to enter into a deferred prosecution agreement, a defendant is required to enter a guilty plea to the alleged crime. Although the DPA may result in charges getting amended or dismissed, the defendant is still first required to admit to the elements of the crime charged in writing. This means that a defendant does have to admit to the conduct alleged in order to enter into a DPA.
DPA agreements are generally reserved for first time offenders and the District Attorney’s Office has discretion on when these offers are made. Additionally, according to Wisconsin Statute 967.055(3), the District Attorney’s Office does not have authority to extend a DPA for any offenses involving the operation of a motor vehicle while under the influence of alcohol or other drugs, homicide by intoxicated use of a vehicle, or injury by intoxicated use of a vehicle.
The District Attorney’s Office has the authority to ask the court to revoke a deferred prosecution agreement if the participant violates the agreement’s terms. If revoked, it is important to note that since a plea has already been entered on the charges, the defendant would proceed directly to sentencing. This means that the defendant could be sentenced by the court on all the charges he or she already pled guilty to. The court would then have discretion to sentence the defendant to the maximum penalties on these charges.
The primary difference between a deferred prosecution agreement and a diversionary agreement comes down to timing. If charges have not yet been filed against a defendant, then a diversion agreement can be extended. Typically no charges would be filed if the participant completes the required programming and or conditions.
If charges have already been filed then a DPA could be extended to the defendant. Both agreements allow defendants the opportunity to potentially avoid criminal charges by completing certain programming or conditions. However, the diversion agreement is oftentimes the more desirable one. The diversion agreement prevents charges from being filed in the first place and it therefore does not require a guilty plea to be entered on the record. Failure to abide by the conditions of the diversion agreement usually results in charges being filed against the defendant. However, since no pleas have been entered on those charges, the defendant still has the right to challenge their case via a motion hearing or trial.
