Limits on Diversion Programs and Plea Agreements
Many states have policies that allow diversion programs or plea agreements for driving while impaired (DWI) offenders.1 Diversion programs allow DWI offenders to be diverted out of court procedures while they complete education or treatment, after which charges are dropped or the conviction is removed from the offender’s record in some states.1 Plea agreements allow DWI offenders to plead guilty to a lesser offense, and in some states the consequence is lighter and the DWI offense is removed from the record.1,2 One of the interventions in MV PICCS is to place limits on diversion programs and plea agreements for DWI offenders, such as making sure alcohol-related traffic offenses remain on an offender’s permanent record. These limits on diversion and plea agreements would increase the number of DWI arrestees who go on to be convicted of DWI-related charges.2
Diversion programs are implemented with the goal of reducing recidivism (continued alcohol-impaired driving, as measured by re-arrest) and are usually restricted to first-time offenders.3 The negotiation of plea agreements is necessary for DWI prosecution and adjudication to be efficient and effective.1 However, diversion programs and plea agreements frequently result in lower severity punishments for DWI offenses, which might not deter offenders from driving while impaired in the future.2 In addition, allowing for the removal of alcohol-related traffic offenses from DWI offenders’ records enables some DWI offenders to be tried as first-time offenders for subsequent offenses, when they should be tried as repeat offenders and be eligible for heavier consequences.2-4 A key recommendation for effective DWI court systems is for all alcohol-related traffic offenses to remain in an offender’s permanent record even if the jurisdiction allows for diversion programs and plea agreements.1,2
Evaluating diversion programs is challenging because of variability in the types of education or treatment offered and a lack of record keeping in the programs.3,4 The evidence available indicates that the effectiveness of diversion programs themselves is mixed, with some studies showing no reduction in recidivism.1,3 However, diversion programs that result in no record of the DWI offense can prevent the identification of repeat offenders. Limiting diversion programs could mitigate this potential loophole in a state or local DWI court system.1-4
Evidence indicates that limits on plea agreements are effective. A U.S. study evaluated the effects of the introduction in 1983–1984 of limits on plea agreements, along with other changes to DWI sanctions, in three communities. In each of the communities, the study found less recidivism and no evidence of negative impacts on the court system operations.5 A 2000 literature review on DWI control efforts (including limits on plea agreements in combination with other policies) found an 11% average reduction in alcohol-involved crashes, roadside blood alcohol concentration levels, and rates of crashes/deaths/injuries.1,6 While neither of these studies were able to study the effects of limits on plea agreements in isolation, the results indicate these limits can be part of an effective suite of policies.
States vary in their legislation on diversion programs and plea agreements. For example, as of 2015, Kansas had an anti-plea-bargaining statute with an exception for certain diversion programs.7 In contrast, as of 2015, Montana had no anti-plea-bargaining statue, but DWI offenders in the state were not eligible for pre-trial diversion.7
Please see the most recent NHTSA Digest of Impaired Driving and Selected Beverage Control Lawsexternal icon for recent information on diversion program and plea agreement laws by state.7
Costs for limiting diversion programs and plea agreements will vary by state. To determine expected costs for a state, the cost per offender for the current diversion program or plea agreement policies will need to be compared to the cost per offender for the sanctions that would be imposed if the state instituted limits on diversion or plea agreements.1 Limits on plea agreements might result in an increased number of full trials and the accompanying costs.1
Some states might need to change their statewide DWI laws to impose limits on diversion programs and plea agreements.1 Implementation can occur within three months after legislation is enacted.1 Local jurisdictions can change policies and practices related to diversion programs and plea agreements in the absence of state-level legislation.1
You can read Chapter 1, Section 3.2 of NHTSA’s Countermeasures that Work: A Highway Safety Countermeasure Guide for State Highway Safety Officespdf iconexternal icon (Tenth Edition, 2020) to learn more about the topics above or other issues related to placing limits on diversion programs and plea agreements.1 More information is also available in Strategy 5.1 C3 in Guidance for Implementation of the AASHTO Strategic Highway Safety Plan―Volume 16: A Guide for Reducing Alcohol-Related Collisionsexternal icon.8
You can read the RAND Corporation’s final reports for MV PICCS 1.0/2.0external icon and MV PICCS 3.0external icon for more information about how effectiveness and costs were incorporated into the MV PICCS tool for this intervention.
In 1984, the National Transportation Safety Board recommended that DWI offenders should be unable to have alcohol-related traffic offenses lessened to non-alcohol-related traffic offenses through plea bargaining.9 As of December 2014, 22 states had laws in place limiting plea agreements in some cases.1,10 See above for recent legislation.
- Venkatraman, V., Richard, C. M., Magee, K., & Johnson, K. (2021). Countermeasures that work: A highway safety countermeasures guide for State Highway Safety Offices. (Report No. DOT HS 813 097). Washington, DC: National Highway Traffic Safety Administration https://www.nhtsa.gov/sites/nhtsa.gov/files/2021-09/15100_Countermeasures10th_080621_v5_tag.pdfpdf iconexternal icon
- National Academies of Sciences, Engineering, & Medicine. (2005). A guide for reducing alcohol-related collisions. Washington, DC: The National Academies Press https://www.nap.edu/catalog/23419/a-guide-for-reducing-alcohol-related-collisionsexternal icon.
- Voas, R. B., & Fisher, D. A. (2001). Court procedures for handling intoxicated drivers. Alcohol Research & Health, 25(1), 32–42. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6707116/external icon
- National Academies of Sciences, Engineering, and Medicine. (2018). Getting to zero alcohol-impaired driving fatalities: A comprehensive approach to a persistent problem. Washington, DC: The National Academies Press. https://www.nap.edu/catalog/24951/getting-to-zero-alcohol-impaired-driving-fatalities-a-comprehensive-approachexternal icon
- Surla, L. T., & Koons, S. M. (1989). An evaluation of the elimination of plea bargaining for DWI offenders. (Report No. DOT HS 807 435). Washington, DC: National Highway Traffic Safety Administration https://rosap.ntl.bts.gov/view/dot/1500external icon
- Wagenaar, A. C., Zobek, T. S., Williams, G. D., & Hingson, R. (2000). Effects of DWI control efforts: A systematic review of the literature from 1960–1991. Minneapolis, MN
- National Highway Traffic Safety Administration. (2017). Digest of impaired driving and selected beverage control laws; 30th edition: Current as of December 31, 2015. (Report No. DOT HS 812 394). Washington, DC: Author https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/812394-digest-of-impaired-driving-and-selected-beverage-control-laws.pdfpdf iconexternal icon
- Goodwin, A., Foss, R., Hedlund, J., Sohn, J., Pfefer, R., Neuman, T. R., . . . Hardy, K. K. (2005). Guidance for implementation of the aashto strategic highway safety plan―Volume 16: A guide for reducing alcohol-related collisions. (NCHRP Report 500). Washington, DC: Transportation Research Board https://www.nap.edu/catalog/23419/a-guide-for-reducing-alcohol-related-collisionsexternal icon.
- National Transportation Safety Board. (2000). Actions to reduce fatalities, injuries, and crashes involving the hard core drinking driver (Safety Report NTSB/SR-00/01). Washington, DC: Author https://www.ntsb.gov/safety/safety-studies/Documents/SR0001.pdfpdf iconexternal icon
- National Highway Traffic Safety Administration. (2016). Digest of impaired driving and selected beverage control laws, 29th edition: Current as of December 31, 2014. (Report No. DOT HS 812 119). Washington, DC: Author https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/812267_2014-impaireddrivingdigest.pdfpdf iconexternal icon