What is Intervention in Lieu of Conviction?
Intervention in Lieu of Conviction or ILC is a program in which an eligible offender charged with a low-level non-violent felony offense, who committed the offense due to drug or alcohol usage or mental illness or intellectual disability, has the opportunity to obtain a dismissal of the charge(s) after completing court-ordered treatment.
Can you participate in ILC if you have a prior record?
Prior to October 29, 2018, eligibility for ILC depended on the prior conviction(s). If the prior conviction(s) is/are misdemeanor offense(s), then the person would be eligible. If the person has a prior conviction to a “felony offense of violence”, then the person would not be eligible for ILC. If the person has a prior felony conviction that is not an “offense of violence” then the person may be eligible for ILC, but only if the prosecuting attorney recommends it. If the person “has been through” ILC in the past, then they are not eligible to participate in ILC again in the future on a subsequent case.
Effective October 29, 2018, if otherwise eligible, a person may participate in ILC so long as he/she has not previously plead guilty to or been convicted of any “felony offense of violence”. If the person has a prior felony conviction that is not an “offense of violence”, the person is still eligible for ILC, and the recommendation of the prosecutor is no longer required. A person can still be eligible for ILC in a subsequent qualifying offense, even though the person “has been through” ILC in the past. Ultimately, the judge has the discretion as to whether to grant an Application for ILC for otherwise eligible offenders.
What types of offenses are excluded from participation in ILC?
Prior to October 29, 2018, Felonies of the 1st, 2nd, or 3rd degrees were ineligible. Offenses carrying mandatory terms of incarceration were ineligible. Persons charged with Corrupting Another with Drugs, Illegal Manufacture of Drugs, Illegal Cultivation of Marihuana, Methamphetamine Offenses, or Illegal Administration or Distribution of Anabolic Steroids were ineligible. Persons charged with Trafficking in Drugs that was a felony of the 1st, 2nd, 3rd, or 4th degree were not eligible. Persons charged with offenses of violence were not eligible.
Effective October 29, 2018, ILC may be granted subject to the following:
- The present offense is not any of the following:
- A felony of the 1st, 2nd, or 3rd
- An offense of violence.
- A violation of divisions (A)(1) or (2) of the Aggravated Vehicular Homicide statute.
- A violation of division (A)(1) of the Aggravated Vehicular Assault statute.
- An OVI offense.
- Any offense for which the sentencing court is required to impose a mandatory prison term.
- The offender is not charged with any of the following:
- Corrupting Another with Drugs
- Illegal Manufacture of Drugs, Illegal Cultivation of Marijuana, Methamphetamine Offenses
- Illegal Administration or Distribution of Anabolic Steroids
- Trafficking or Aggravated Trafficking in Drugs that is a felony of the 1st, 2nd, 3rd or 4th degree
- Possession of Drugs that is a felony of the 1st or 2nd degree
- The alleged victim of the offense was not 65 years of age or older, permanently or totally disabled, under 13 years of age, or a peace officer engaged in the officer’s official duties at the time of the offense.
- If the person is charged with Tampering with Drugs, the alleged violation did not result in physical harm to any person.
- The offender possesses a Commercial Driver’s License, and the present offense would result in the offender being disqualified or subject to any other sanction under Chapter 4506.
Is just having a drug or alcohol problem or mental illness or intellectual disability enough to qualify a person for ILC?
No. The drug or alcohol problem, mental illness, or intellectual disability must have been “a factor leading to the criminal offense with which the offender is charged”.
Who has the burden of proving eligibility for ILC?
The defendant petitions the trial court and has the burden of establishing eligibility.
Do I have to admit my guilt to participate in ILC?
Yes. The Defendant must admit to guilt to the adult probation department during the screening process and in open court before the trial judge. ILC is not a program for people who refuse to accept responsibility for their conduct.
Who determines the type of treatment that I receive?
Professionals in the substance abuse or mental health fields assess the Defendant and recommend appropriate treatment to the trial judge.
I have a job and don’t want to do inpatient treatment. Can I still participate in ILC?
Yes. There are a wide variety of treatment options available that can accommodate people who, for some reason or another, cannot participate in residential treatment. Be sure to mention the concerns to the assessor during the evaluation process. In some extreme situations, inpatient treatment may be required, even if it is against the Defendant’s wishes.
Can I choose the program that I participate in?
That decision is ultimately made by the trial judge. However, if there is a particular program that you would be interested in attending, make that known to the adult probation department during the interview and assessment stages so that they can gather information about the program to determine whether it would satisfy the recommendations of the treatment plan.
Can I be placed on an electronic GPS monitor as a requirement of participating in ILC?
Yes. However, when required, it is usually for no more than 90 days at the beginning of the term of ILC.
How long does ILC usually last?
Although ILC can last for up to 5 years, many people can satisfy the conditions of ILC within 1 to 1.5 years. The minimum period of time that ILC last is 1 year.
Should I participate in Diversion or ILC? Which is better?
It depends on the circumstances. Meet with an experienced criminal defense attorney and discuss your options, as well as the pros and cons of each.
I’m not sure whether I want to fight the case, but I appear to be eligible to participate in ILC. What should I do?
Consult an experienced criminal defense attorney as soon as possible, so that you can properly weigh your options.
Can I be permitted to participate in ILC even if the prosecuting attorney opposes?
Yes. That decision is for the trial judge. Prior to October 29, 2018, a recommendation from the prosecuting attorney was required for those applicants having a prior felony conviction for a single non-violent offense. Effective October 29, 2018, applicants with prior felony conviction(s) for non-violent offense(s) with or without the prosecuting attorney’s recommendation. The decision is left to the trial judge.
I am not a U.S. citizen. Can my participation in ILC affect my immigration status?
Yes. A guilty plea in an ILC case, although it is not filed and the Defendant is not convicted, may be used as an “adjudication of guilt” and “conviction” for immigration purposes. Non-U.S. citizens should consult with an immigration attorney, in addition to a criminal defense attorney, to protect against any adverse consequences from participating in ILC.
What happens when I’ve completed all the conditions of my ILC?
The Court dismisses the case. If there is a dispute as to whether the conditions have been satisfied, an experienced criminal defense attorney may file a motion with the Court and have a hearing, in which the trial judge determines whether all the conditions have been satisfied.
What are the steps in pursuing a Motion for Intervention in Lieu of Conviction?
- The defense attorney examines the case and interviews the defendant to determine whether the pending charge are eligible offenses, whether the defendant has prior cases that forbid him/her from participating in Intervention in Lieu of Conviction, whether drugs, alcohol, mental illness, or intellectual disability were a factor in the pending criminal charges, and whether participating in ILC outweighs going to trial in the matter.
- The defense attorney files an Application for Intervention in Lieu of Conviction with the Court.
- The Defendant and defense attorney appear in Court. The trial judge refers the case to the adult probation department to conduct an investigation and perform assessments on the Defendant and submit a written report to the Court with recommendations regarding the Defendant’s eligibility and participation in the program. The Defendant is directed to meet with the probation department to start the process. The Defendant is given a date 4-6 weeks out to return to Court for the results of the ILC evaluation process.
- The Defendant meets with the adult probation department. The defense attorney is not present. The adult probation department questions the Defendant about their background, history of substance abuse and/or mental illness, and about the pending offense. If the Defendant denies committing the offense, the Defendant is not permitted to participate in ILC. If the Defendant denies that drugs, alcohol, mental illness, or intellectual disability were a factor in the offense, then the Defendant is not permitted to participate in ILC. If the Defendant is uncooperative or fails to appear at the appointments, then the Defendant will not be permitted to participate in ILC.
- The Defendant meets with professionals in the fields of substance abuse or mental health and completes assessments to determine the gravity of the problem and treatment recommendations.
- The prosecuting attorney and victim are contacted for their input.
- A written report with recommendations are prepared and submitted to the trial judge.
- The Defendant and his/her attorney appear in Court. The trial judge informs the Defendant as to the recommendations of the ILC Report. If the Defendant is determined to be ineligible to participate in ILC, the Defendant pleads guilty to the charges, has the case set for trial, or files a Motion to Suppress Evidence or other motion. If the Defendant is determined to be eligible, the Defendant pleads guilty to the charges in the Indictment. The Court holds the guilty plea and does not file it. The Court suspends the criminal proceedings and orders the Defendant into ILC, to be supervised by the adult probation department. The Defendant must comply with the rules of probation and the treatment plan adopted by the Court.
- If the Defendant completes all the conditions of ILC, the pending charges are dismissed by the Court and the written guilty plea is destroyed. The Defendant can then immediately file a motion to have his/her record expunged. If the Defendant violates the terms of his/her Intervention in Lieu of Conviction, then the Defendant is brought back to Court, he/she can admit to the violation or have the matter set for a ILC violation hearing. If the person is found to have violated the terms of his/her ILC, then his/her prior guilty plea is filed, and the Defendant is officially convicted of the offense. The Court then proceeds to sentencing.