Q. “Why can’t I get a ‘diversion’ deal on a DUI, when guys are getting “pretrial diversion” or “pretrial (“PTI”) intervention and eventual dismissals on felony drug cases?!” A. “Great question,” and get the answer from Fort Lauderdale criminal defense lawyer John M. Castellano:

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Sometimes your well-intentioned friends– who wouldn’t know this, unwittingly mislead you with tales of other cases and the results in other cases. Any 1st year lawyer or public defender can score a “drug court” “PTI” (“Pre Trial Diversion”) program for any defendant who stands accused of felony drug possession, whether it’s heroin, cocaine, regardless; and yet they may tell you they scored an unbelievable deal, because their lawyer was especially dug-in with the prosecutor or “knew the judge.”

I had a client who shared with me that his friend had a heroin case and “his lawyer got him diversion” and “knew the prosecutor,” etc. (Hopefully the lawyer didn’t hype this in a very disingenuous way and sell the client on this fiction, as though the “drug court PTI” diversion program had anything to do with the lawyer “knowing the prosecutor.”) This is a very routine result, ie, the felony drug charge/prosecution is dismissed after a year of compliance, then sealed etc.

(Again, to make it very clear, this result is available to many thousands of personal use felony amounts of heroin, cocaine, or any felony drug possession — even large amounts just under a “trafficking” weight.)

A first (1st) DUI, on the other hand — though a “misdemeanor” and not a felony, cannot be legally resolved by any “diversion” program. No lawyer or judge even discusses this as a potential result or plea, because it is illegal and there is no such program available for DUI defendants. This is by statute disallowed inasmuch as there are certain “statutory mandatory minimums” applicable to any DUI “adjudication.” There is only one other crime among all crimes in Florida that “mandates” this “adjudication” (which is the fancy word for “conviction”) and that crime is “bookmaking,” due to the legislature’s capitulation to law enforcement’s arguments that “bookmaking” is inextricably connected with organized crime.

Just as powerful as law enforcement’s lobby, is the huge lobbying strong-arm of “M.A.D.D.” (“Mothers Against Drunk Drivers”) as evidenced by the huge pressure they successfully leveraged in the State Senate and House, creating Florida’s draconian DUI statute that mandates a conviction on a plea (ie, there is no “adjudication” “withheld” available for this crime, though crazy as this sounds, adjudication “withheld” is available for first time offenders in much more serious felonies like burglary, robbery, indecent sexual assault, you name it!)

As horrifying as this ludicrous anomaly may seem, it is what it is, the veritable truth and reality in Florida. There is no way around it, unless the charge itself gets changed by a prosecutor to another type of criminal traffic, eg, “reckless driving,” and though everyone pitches for this and tries to score this “Change of (“C.O.C.) Charge” to “reckless driving,” perhaps 4 or 5 out of 100 cases wull eventually yield that result — and that happens typically *only when the prosecutors have “witness problems.”

Typically, “witness problems” refers to the unavailability of the officers at trial, or of a certain civilian “wheel witness” who is needed by the prosecution to “put the defendant behind the wheel” of the car to establish the “element” of “driving,” assuming the police show up only *after an accident and the defendant is already “out of the car,” for example … or if the arresting officer of breathalyzer operator is under investigation for other reasons, or again “unavailable” for whatever reason … and the Judge won’t give the prosecution a second continuance to get that needed officer witness into court, etc.

Therefore, the only way to “beat a DUI” in Florida — assuming the prosecution will NOT do a “C.O.C.” and change the charge (“amend”) to “Reckless driving,” is to take the case all the way to a jury verdict, and score an acquittal from a jury.

DUI’s are simply much more punishing than the average run of the mill, 3rd degree felony, with far less discretion afforded the prosecutors and judges — who often wish they could be more benevolent, prosecutors and judges alike!

That’s the reality in Florida. If you or a loved one possessed a lot of drugs — and yet there is proof that the amount of drugs were for “personal use” to feed an addiction,your lawyer can score a sweet diversionary deal with an eventual dismissal and a sealing of the arrest record (sealing also not statutorily allowed for DUI!) and not just me, any decent lawyer who does criminal defense and knows how to find the courthouse.

We will continue to do the next right thing for all our clients, not to worry my friends.

I am,

Committed to get all my clients the best possible results,




About the Author:

John M. Castellano is a Fort Lauderdale criminal defense attorney who has helped thousands of clients throughout Florida. While building a reputation as a premiere Fort Lauderdale DUI attorney, Mr. Castellano has worked tirelessly to develop strategies to best protect the rights of those arrested for DUI in Broward, Dade and West Palm. However, Mr. Castellano is not just a drunk driving lawyer. He has been a successful domestic violence attorney, drug trafficking attorney, as well as all other Felony and Misdemeanor cases.

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