As a defense lawyer, I have to realistically assess my clients and ask the hard questions to insure that I do not let them enter into a plea agreement that they can’t comply with. For example, although a conditional discharge is available for most first time drug offenders (or PTI), the defendant admitted into the program will be sentenced to a year of probation, random drug testing and other unpleasantness. If the defendant successfully completes the program the charges will be dismissed.
If a defendant is sentenced to probation, the trade-off is avoiding jail time, but a conviction nonetheless. In addition, probation carries with it all the other requirements that PTI or a conditional discharge does, such as drug testing, probation officer reporting, no subsequent arrest while on probation, etc.In addition, a guilty plea to most drug offenses can result in a 6 month loss of driving privileges. If you are accepted into the PTI or conditional discharge programs, there is not ordinarily a loss of license, unless a conditional plea is made a condition of acceptance.
If you violate probation you will frequently be sentenced to jail time, but not always. If you violate PTI or a conditional discharge, you will either have to go to trial, or plead guilty, typically with an offer of probation.
But not every defendant is a suitable probation or conditional discharge/PTI program candidate. There are a number of reason why this may be the case. Yet it is surprising how frequently a defendant will accept a plea agreement knowing he can not comply with it. I certainly would never dissuade a client who feels he is willing and capable of complying with a diversion program or probation. However, if someone explicitly tells me that they don’t think they can do it, I must proceed accordingly.
This requires a careful consideration of many factors, including available defenses to the charges, exposure to jail time if convicted, likelihood of a not guilty verdict, prior record, custodial plea offers with no probation, client’s family life and job situation, etc.
In some instances, if a client will not be able to comply with probation, then I will work with that client to either make the decision to go to trial, or fashion a plea agreement that works best for the defendant, and does not require probation. There is always a trade-off, but given the right circumstances, the best strategy is to limit future exposure to court proceedings that could be more harmful.