DUIs and Conditional Discharge Programs
If your record includes a DUI charge in the United States, you may be criminally inadmissible to enter Canada. This article will outline your options, depending on the laws of the state in which your DUI occurred.
Several states have programs for DUI-holders to be placed on probation without any judgment entered on their case. Once the terms of probation are fulfilled, the charges can be lifted with no DUI conviction remaining on the criminal record, and no further restrictions on traveling to Canada.
These state-conditional programs have various names, including pre-trial intervention, suspended imposition of sentencing, deferred prosecution, diversion, and conditional discharge. The following list identifies which programs are available in which states, and what conditions and restrictions they impose on DUI offenders. Depending on the state, the laws refer to DUI offenses (driving under the influence), DWI offenses (driving while intoxicated), or both. Although most states provide options for DUI/DWI offenders to overcome criminal inadmissibility to Canada under the right circumstances, the programs and policies in other states pose more difficult barriers.
Please note that the information below is subject to change with the passing of new statutes, and that you should refer to the penal code of your state for the most up-to-date details. Consulting this webpage is only a starting point, and not a substitute for proper legal counsel. Each DUI case is different, and if you have been charged, you should consult a qualified attorney about your unique situation.
Alabama: In Alabama, deferred prosecution is a sentencing option for such charges as DUI or possession of a controlled substance. A DUI usually entails probationary conditions including drug and alcohol screenings, alcohol abuse classes, and community service. While many states frequently sentence first-time DUI offenders with deferred prosecution, Alabama allows deferred prosecution for offenders with multiple DUI convictions on their record. Controlled substance charges are also eligible for deferred prosecution, along with the option of undergoing a drug abuse treatment program in lieu of a conviction.
Alaska: Alaska offers suspended imposition of sentencing for most criminal charges, excluding such crimes as murder, assault, and sexual assault. Suspended imposition of sentencing is not an option, however, for DUIs involving alcohol or controlled drugs.
Arizona: In Arizona, suspended imposition of sentencing is available for some offenses, as is the chance for charges to be dismissed without any criminal record. DUI offenses are generally ineligible, and incur strict sentencing and mandatory prison time, even for first-time offenders.
Arkansas: Under the Arkansas Code, offenders may receive probation without any judgment entered. After they complete the probationary conditions, their charges may be dismissed without conviction. This option does not extend to convicted sex offenders whose victims were under the age of 18. Under a separate section of the Arkansas Code, first-time drug offenses may be eligible for probation without judgment. DUIs involving alcohol may not receive probation prior to judgment.
California: California has a statue for deferred entry of judgment for first-time minor drug offenses, including certain Health and Safety Code violations, and marijuana possession while driving. Under the statute, charges may be dismissed after the successful completion of probation. The statute does not cover DUIs.
Colorado: Deferred judgment or diversion programs are available to DUI offenders in some jurisdictions in Colorado, where an alcohol-related offense cannot be plead down to a non-alcohol related offense. Offenders with lower or “borderline” blood alcohol levels are generally eligible for these programs.
Connecticut: Connecticut’s conditional discharge program does not clear the offender’s criminal record or allow the offender to evade conviction. Under this program, an offender faces conviction and must complete the terms of probation, after which the charges remain on the criminal record. First-time DUI offenders, however, may undergo an alcohol education program instead of entering a plea for their charge. Upon successful completion of this program and the probation period, the offender will have their charges dropped, and their record expunged. Unlike the Canadian conditional discharge, this program does not involve a guilty plea.
Delaware: Delaware has a “probation before judgment” statute, allowing offenders to plead guilty and face probation without an entry of judgment. Once the offender has successfully completed the probationary conditions, they may be discharged without a conviction. This program is not open to commercial driver’s license-holders who have been charged with an offense involving a motor vehicle. Other statutes outline case-specific programs for first-time offenses, including domestic violence, possession of controlled substances, and driving offenses. Under the “election in lieu of trial” statute, deferred judgment is open to first-time DUI offenders, whose charges may be dismissed upon successful completion of the program.
Florida: Florida’s pre-trial intervention program allows the dismissal of charges for the following: 1) first-time offenders, 2) anyone whose record has a single non-violent misdemeanor, or 3) anyone charged with a third-degree misdemeanor or felony. The program applies to most DUI charges.
Georgia: Conditional discharge sentencing is available for certain non-violent property offenses and possession of controlled substances, but not for DUIs. If all conditions for probation are met, the entry of guilt can be deferred, the offender placed on probation, and the charge dismissed without a conviction.
Hawaii: Hawaii’s conditional discharge program is similar to Canada’s, except the Hawaiian program is only available for first-time drug convictions.
Idaho: Under Idaho’s statutes, the sentencing of DUI offenses can be withheld to grant probation and set aside the guilty plea. Once the terms of probation are completed, the defendant may be discharged without a conviction.
Illinois: Conditional discharge programs in Illinois apply only to specific offenses designated in the state statutes. One recent statute established an Offender Initiative Program granting the possibility of probation without entry of judgment, and with the eventual dismissal of charges. This new program is not available to DUI offenders, however.
Indiana: According to Indiana’s statutes, the entry of judgment cannot be withheld after a defendant pleads guilty to most offenses, including DUIs. However, the state offers a discharge program that makes an exception for first-time drug offenders.
Iowa: First-time offenders have the option of deferred judgment, followed by probation and the dismissal of charges. First-time DUI offenders are eligible under certain conditions: 1) they cannot have declined a breathalyzer test, 2) their Blood Alcohol Content cannot have exceeded 0.15, and 3) their DUI cannot have caused injury.
Kansas: Kansas’s diversion program offers deferred prosecution to first-time DUI offenders who have not caused bodily harm, and who are not commercial driver’s license-holders. Charges are dismissed after the offender completes the conditions of the program, such as the paying of all fees and fines, and the attendance of alcohol education or treatment classes. The driving record will retain permanent evidence of participation in the program, but the criminal record will be expunged of the charges.
Kentucky: Kentucky’s pre-trial diversion programs operate at the county level, so the eligible offenses differ from county to county. DUIs are not eligible for diversion in most counties in Kentucky, with some exceptions such as Jefferson County.
Louisiana: Louisiana’s pre-trial diversion programs differ between districts, both in availability and regulations. Offenders can determine their eligibility by consulting their district attorney’s office. Charges remain pending while the offender completes probation, and are later dismissed. First-time DUI offenders who have no prior convictions are usually eligible for these programs.
Maine: Maine has a deferred disposition program as well as a filing agreement program, which are both open to Class C, D, and E offenses. DUIs are Class D offenses under Maine law, and therefore eligible for these programs. Successful completion of probationary conditions for both programs will result in the dismissal of charges.
Maryland: In Maryland, the probation before judgment program (PBJ) is available to DUI offenders. After pleading guilty to an offense, the defendant is placed on probation. Charges are dropped after the offender successfully completes the conditions of probation, which may include alcohol treatment or education programs, and the installation of an ignition interlock device.
Massachusetts: Massachusetts has diversion programs that are available to first-time offenders aged 18 to 22, but which are no longer open to DUI offenders.
Michigan: Under Michigan’s diversion programs, first-time charges can be dismissed without conviction. However, the programs are only available to certain offenses, including possession of alcohol by a minor, but not DUIs.
Minnesota: According to Minnesota statutes, all counties governed by the Community Corrections Act must have a pre-trial diversion program for offenders older than 18. In most counties, DUI offenses are not usually eligible for this program, but other driving offenses are, such as driving after suspension, and driving after revocation. DUI offenders should refer to the county attorney’s office to ascertain their eligibility.
Mississippi: In Mississippi, the pre-trial diversion programs are similarly administered according to district, and the eligibility of DUIs differs between districts. All of the districts require participants to be first-time offenders charged with non-violent crimes. Offenders do not have to plead guilty to participate in the programs. Successful participants will have their charges dismissed without conviction.
Missouri: Missouri grants suspended imposition of sentencing to offenders found guilty of a felony, misdemeanour, or infraction. After being placed on probation and completing the necessary conditions, the offenders are discharged without a conviction. DUI offenders must face at least two years of probation, and their guilty plea must be recorded in the Missouri law enforcement database.
Montana: Montana offers deferred imposition of sentencing, but does not extend it to DUI charges, even for first-time offenders. The program also requires a detention centre as a possible condition of probation. After all probationary conditions are fulfilled, the offender’s initial guilty plea can be withdrawn, and their charges dismissed.
Nebraska: In Nebraska, any county or city attorney can establish a pre-trial diversion program, which puts offenders on probation rather than entering judgment on their case, and then dismisses the case after the terms of probation are fulfilled. Offenders need not enter a guilty plea to be eligible for these programs, but they should consult their county attorney’s office to determine the availability and requirements of a pre-trial diversion program in the district.
Nevada: Nevada offers multiple programs granting probation without an entry of judgment, and dismissal of charges without a conviction. However, these programs are only available in special circumstances, including mental illness or disability, military service, or first-time drug offenses. One available program offers treatment and reduced sentencing for DUI convictions, but it does not usually enable the sentence to be deferred or the conviction to be set aside. DUI offenders must have their entry of judgment deferred to enter a treatment program. Only third-time offenders qualify, and they must also be diagnosed with alcoholism by a physician or drug and alcohol abuse counsellor. This program may only be used once.
New Hampshire: New Hampshire’s conditional discharge program results in a conviction on the criminal record that can later be expunged.
New Jersey: In New Jersey, a conditional discharge program handles minor drug offenses, while a pre-trial intervention program applies to indictable offenses. Neither program covers DUIs, which the state defines as traffic violations rather than criminal offenses. Consequently, DUIs do not appear on a criminal record, but they still make the violator inadmissible to Canada. Therefore, a DUI may neither qualify for conditional discharge, nor be expunged from the offender’s criminal record.
New Mexico: District attorneys in New Mexico can establish pre-prosecution diversion programs that are unique to their respective jurisdictions, which means that the qualifying offenses may differ between districts. In general, these programs are open to offenders without previous violent felony convictions, or with no prior convictions at all in the past ten years. Consult your district attorney’s office to determine if a program is available in your jurisdiction, and which criminal offenses are eligible.
New York: New York currently lacks any kind of diversion program for DUI offenders. While the state offers a drinking driver education program to help reinstate offenders’ licenses, it does not erase DUI convictions.
North Carolina: DWI charges are technically eligible for North Carolina’s deferred prosecution program. However, the program requires the agreement of the prosecutor, who will not likely condone the use of deferred prosecution for a DWI, or for aiding and abetting DWI charges.
North Dakota: North Dakota offers deferred imposition of sentencing, but not to DUI offenders.
Ohio: Ohio has pre-trial diversion programs established by the prosecuting attorneys of individual districts. However, DUI charges are among the offenses not currently eligible for pre-trial diversion, which also include perjury and vehicular homicide, as well as compelling prostitution, and endangering children.
Oklahoma: Under Oklahoma’s deferred judgment sentencing program, offenders are discharged without a conviction, and the guilty plea is expunged from their criminal record after they complete the required conditions. DUI offenders are eligible, but must undergo an alcohol and drug substance abuse evaluation program.
Oregon: In Oregon, probation without entering a judgment of guilt is available for nearly all first-time misdemeanours, except DUI offenses and domestic violence. A separate statute outlines an alternative conditional discharge program that covers drug possession, and enables the charges to be dismissed after the offender completes the terms of probation.
Pennsylvania: Pennsylvania’s conditional discharge program, Accelerated Rehabilitative Disposition (ARD) is open to certain offenses, such as first-time DUIs. Charges are dismissed without entry of judgment after the offender fulfills the required conditions, which usually include fees, a drug and alcohol evaluation, a DUI education program, and suspension of driver’s license.
Rhode Island: Rhode Island offers a deferment of sentence program that exonerates an offender’s charges and seals their criminal record after they complete a five-year deferment period. The program does not extend to DUI offenses involving a child passenger under the age of 13 in the vehicle. DUI offenders must meet all requirements of their sentence, including DUI education courses, alcohol treatment programs, and community service.
South Carolina: South Carolina has pre-trial intervention programs that allow the dismissal and expungement of charges after the completion of a 90-day probation period. Blackmail, violent crimes, and DUI offenses are not eligible.
South Dakota: In South Dakota, the suspended imposition of sentence program is open to first-time offenses, including DUI charges, misdemeanors, and felony offenses that are not punishable by death or lifetime imprisonment. Offenders must face probation after they plead guilty and the court refrains from entering a judgment of guilt.
Tennessee: Tennessee’s deferral program is available to DUI offenders, whose probationary conditions include participating in a rehabilitation program and a DUI education program, restitution, and drug and alcohol assessment and treatment. After these conditions are met, the court can dismiss all proceedings against the offender.
Texas: In Texas, the deferred adjudication program requires offenders to undergo community supervision, with the possibility for their charges to be dismissed after they complete their term without the court entering an adjudication of guilt. The program excludes alcohol-related offenses such as driving, boating, or flying under the influence. Despite recent discussions about opening the program to DUIs, no legislations have yet been passed to do so.
Utah: Offenders in Utah can put forth a “plea in abeyance,” after which the court enters no judgment or conviction, and the individual must complete the terms of probation in order for charges to be dismissed. However, DUI offenders are not eligible to make pleas of abeyance.
Vermont: Vermont allows offenders to have their sentencing deferred, and be placed on probation after they plead guilty. Once they complete all probationary terms and conditions, they are discharged, and their guilty verdict stricken. Since the process involves an adjudication of guilt and a conviction, it differs from conditional discharge procedures in several other states, as well as in Canada. Certain offenses are ineligible for deferred sentencing, including some sexual assault charges. While first-time DUI charges qualify, it is difficult to obtain deferred sentencing for them. Second, third, and subsequent DUI charges are not eligible at all.
Virginia: After being restricted by previous rulings, deferred disposition is now allowed in Virginia for several offenses, such as alcohol possession by a minor, drug possession, certain property offenses, domestic abuse, and assault and battery. The program does not include DUI offenses, however.
Washington: Washington’s comprehensive deferred prosecution program applies to offenders with mental illnesses, and drug or alcohol dependence. The program requires DUI offenders to be diagnosed with alcohol dependence, and to get sober. Participants unwilling to recover are considered to be violating the terms of the program.
West Virginia: West Virginia offers a sentence deferral program specifically for DUI offenses. After the court defers entering a judgment, the offender faces probation, which requires at least 165 days of participation in the Motor Vehicle Alcohol Test and Lock Program. Once all of the probationary conditions are fulfilled, the charges can be dismissed. The sentence deferral program may be used only once, by a first-time DUI offender. Previous DUI charges disqualify an offender from the program, as does the possession of a commercial driver’s license.
Wisconsin: While Wisconsin’s deferred prosecution program is open to both adult and juvenile offenders, the state does not consider a first-time DUI to be a criminal offense if there were no passengers under the age of 16 in the car at the time of the incident. Subsequent DUI offenses are considered criminal offenses, but they do not qualify for deferred prosecution.
Wyoming: Deferred prosecution is available to first-time offenders in Wyoming who do not hold a commercial driver’s license. Instead of a conviction, the court places the offender on probation, and then dismisses the charges after the conditions of the probation are fulfilled.