For individuals who have been charged with a DUI in the United States, it is likely that their conviction will result in criminal inadmissibility, which can prevent all travel to Canada.
Fortunately, many states have options that will allow for the person charged with a DUI to be placed on probation without a judgment being entered on their case, and upon the successful completion of the terms of probation the charges can be dismissed. When the charges are dismissed through one of these programs, there is no DUI conviction on the criminal record and individuals can travel to Canada freely.
These programs, often called conditional discharge programs, diversion programs, or pre-trial intervention, differ in each state. Consult the map and the list of states below to determine if a conditional discharge program for DUIs is available in your state!
For details about the programs available in your state, consult the list below:
Alabama: The Code of Alabama allows for certain charges, such as DUI charges or possession of a controlled substance, to use deferred prosecution as a sentencing option. Typically, probation conditions set out for a DUI charge include drug and alcohol screenings, community service, and participating in alcohol abuse classes. Deferred prosecution is particularly common with first-time DUI offenders, but unlike many other states, Alabama also allows individuals with multiple DUI convictions to use deferred prosecution. Individuals with controlled substances charges can also opt for deferred prosecution and undergo a drug abuse treatment program instead of facing a conviction.
Alaska: Alaska’s suspended imposition of sentence is available for almost all charges, although some crimes are ineligible, including particular murder, assault, and sexual assault charges outlined in the statutes. Suspended imposition of sentence is not available for individuals charged with operating a vehicle under the influence of alcohol or controlled drugs.
Arizona: Arizona offers a suspended imposition of sentence program and the opportunity to have the charges dismissed and to keep a criminal record clean, but not all offenses are eligible. For DUIs, sentencing is generally very strict and carries mandatory jail time, even for a first offense. DUI offenders cannot normally get suspended imposition of sentence.
Arkansas: The Arkansas Code sets out provisions that allow individuals to be sentenced to probation without a judgment being entered and to have their charges dismissed, without conviction, after the completion of the probationary conditions. Individuals convicted of sex offenses where the victim was under the age of 18 do not qualify for this option. A separate section of the Arkansas Code outlines a similar program for first time drug offenders that allow for probation without a judgment of guilt. Individuals charged with driving under the influence of alcohol are ineligible for probation prior to the adjudication of guilt.
California: California’s deferred entry of judgment statute allows for the dismissal of charges without a conviction after the successful completion of probation, but it is intended for first time offenders with minor drug crimes. Eligible crimes include certain violations of the California Health and Safety Code and possession of marijuana while driving charges. DUI charges are not eligible for deferred entry of judgment.
Colorado: In Colorado, some jurisdictions will offer diversion programs or deferred judgment that DUI offenders are eligible for. These programs are usually offered to individuals with lower blood alcohol levels that can be considered “borderline.” This program can be particularly valuable because in Colorado charges involving alcohol cannot be plead down to a non-alcohol related offense.
Connecticut: Connecticut does have a conditional discharge program, but it is important to note that this program does not result in a clear criminal record and it does not allow the person to escape the conviction. Under a Connecticut conditional discharge, the offender is convicted and is placed on probation, and the charges are not dismissed upon successful completion. Inside, Connecticut offers an Alcohol Education Program for first time DUI offenders. Instead of entering a plea for the charge, the offender applies to enter this program, attends classes, and successfully completes a probation period, and the charges are dropped. This program will also expunge the offender’s record. This program differs from the Canadian conditional discharge as the offender is not entering a guilty plea.
Delaware: Delaware’s “probation before judgement” statute allows an offender to plead guilty to a crime and be placed on probation without an entry of judgment, allowing for the person to be discharged without a conviction upon successful completion of the conditions. Individuals who hold a commercial drivers license and are charged with an offense involving a motor vehicle are not eligible for this program. There are also similar programs outlined in the statutes that apply to specific cases, including separate programs for first time offenders charged with domestic violence, first time offenders charged with the possession of controlled substances, and first time offenders for certain driving offenses. First time DUI offenders can receive deferred judgment under the “election in lieu of trial” statute that will allow for the dismissal of charges upon successful program completion.
Florida: The Pre-Trial Intervention Program in Florida provides an opportunity for a first time offender or any individual with one non-violent misdemeanor on their record who has been charged with a misdemeanour or a felony in the third degree to have their charges dismissed. In most cases DUI charges will be eligible for the program.
Georgia: For offenders with charges for possession of controlled substances and certain non-violent property crimes, a conditional discharge sentence is available. The court can defer the entry of guilt and place the offender on probation, and can dismiss the charge without a conviction if all of the conditions of the probation are met. Conditional discharge is not available for DUI charges.
Hawaii: The conditional discharge program outlined in the Hawaiian statutes is equivalent to Canada’s conditional discharge program, but Hawaii’s program only applies to individuals who have been convicted for the first time of a drug offense.
Idaho: Idaho statutes allow for the option of withholding a sentence in favour of probation that allows for the judge to set aside the guilty plea and discharge the defendant without a conviction after all of the terms of probation are complete. DUIs are eligible for this alternative sentencing measure in Idaho.
Illinois: In Illinois, conditional discharge programs that apply only to specific offenses (including prostitution and child abandonment) are outlined in the state statutes. Illinois recently passed a statute outlining a new Offender Initiative Program, which also gives offenders the opportunity to be placed on probation without an entry of judgment and eventually have their charges dismissed. There are a significant number of offenses listed in the statutes that are ineligible for participation in the Offender Initiative Program, and DUI charges are one of the many offenses not able to use this program.
Indiana: In general, Indiana statute and case law do not provide for withheld entry of judgment after a defendant pleads guilty to a charge, including DUIs. Indiana does have a discharge program outlined in statutes that is an exception to this rule, as it is only available for first time offenders charged with drug possession.
Iowa: Deferred judgments are available for first time offenders, and after being placed on probation without a judgment being entered the charges can be dismissed. Deferred judgments are available for first time DUI offenders so long as they meet certain conditions. To qualify, the offender must not have refused a DUI or breathalyzer test and their Blood Alcohol Content must not have been higher than 0.15. Individuals charged with a DUI causing injury do not qualify.
Kansas: In Kansas, individuals charged with a DUI are eligible for deferred prosecution through a diversion program. The program leads to the charges being dismissed after the completion of conditions, including fees and fines and attending alcohol treatment or alcohol education classes. The fact that the person participated in a diversion program remains permanently on their driving record, but not on their criminal record. Individuals who are charged with their first DUI in cases where the DUI did not cause bodily injury are eligible. Offenders holding a commercial driver’s license are ineligible for this program.
Kentucky: In Kentucky, pre-trial diversion programs are established at the county level, so whether or not a diversion program exists and which offenses are eligible for the program will differ in each jurisdiction. Most counties in Kentucky do not allow DUI charges to be eligible for diversion, but some countries, including Jefferson County, do allow DUIs to participate in diversion. Kentucky residents should consult their county attorney’s office to determine whether or not DUI offenders are eligible for diversion in that county.
Louisiana:As in Kentucky and many other states, district attorneys in Louisiana have the option of creating their own Pre-Trial Diversion Program. Pre-Trial Diversion availability and regulations can differ significantly between districts, and offenders considering participation in one of these programs should speak with their district attorney’s office to find out the details of program eligibility. Participants in these programs have the charge against them remain pending while they complete probation, and upon successful completion of the program have their charges dismissed. In regions where this program is available, first time DUI offenders who have never been convicted of any crime are almost always eligible.
Maine: Maine’s statutes outline both a deferred disposition program and a filing agreement program, both of which will result in the dismissal of charges after the successful completion of probationary conditions. Individuals charged with Class C, D, and E offenses can participate in these programs. Under Maine law, DUI offenses are Class D offenses are eligible for these programs.
Maryland: Maryland’s conditional discharge program is called “probation before judgment,” or “a PBJ.” When a defendant pleads guilty to a crime, the judge defers proceedings and places the defendant on probation, dropping the charges when the probation is completed successfully. Individuals charged with a DUI are eligible for a PBJ, and alcohol treatment or education programs and the installation of an Ignition Interlock Device could be imposed as a condition of probation.
Massachusetts: In Massachusetts, courts are able to use diversion programs for certain first time offenders between the ages of 18 and 22. While diversions programs used to be available to first time DUI offenders in Massachusetts, DUI charges are no longer eligible for these programs.
Michigan: Michigan has diversion programs that will allow for first time offenders to have their charges dismissed without conviction, but they only apply to certain offenses, such as possession of alcohol by a minor. In general, DUI (OWI) charges do not qualify for diversion programs in the state of Michigan.
Minnesota: Minnesota statutes require that every county attorney in the state whose county is governed by the Community Corrections Act must establish a pre-trial diversion program for offenders over the age of 18. While Minnesota offers a diversion program for some driving offenses, including Driving After Revocation and Driving After Suspension, diversion is rarely available for DUI charges. Individuals charged with a DUI should consult their county attorney’s office to determine if DUIs are eligible for the local pre-trial diversion program.
Mississippi: Mississippi’s pre-trial diversion programs are operated at the district level, so programs could differ significantly between districts. Under the Mississippi programs, the offender is not required to plead guilty in order to qualify for the program and have their charges dismissed without conviction. To be eligible for this program in any district, the individual must be a first time time offender charged with a non-violent offense. Whether or not DUI charges are eligible for this program will differ between districts.
Missouri: In Missouri, any person who has been found guilty of a felony, misdemeanour, or infraction has the opportunity for a suspended imposition of sentence, where they are placed on probation and upon completion of the conditions are discharged without a conviction. Additional requirements are imposed for individuals charged with a DUI. A person who plead guilty to a DUI charge must be placed on probation for at least two years and a record of their guilty plea must be entered into the state’s law enforcement database.
Montana: The deferred imposition of sentence provisions in Montana differ slightly from that of many other states, as incarceration in a detention centre is a possible probationary condition. After the individual completes all of the conditions of their probation, they can withdraw their initial guilty plea and have the charges against them dismissed. DUI charges are ineligible for a deferred imposition of sentence, even to first time offenders.
Nebraska: Nebraska has a provision in their state statutes that allows any county attorney and any city attorney in Nebraska to establish their own pre-trial diversion program. Pre-trial diversion programs place individuals on probation in lieu of entering judgment on the case, and after the conditions of probation are completed, the case is dismissed. The statute states that individuals in these programs will not have to enter a guilty plea in order to qualify. Individuals should consult their particular county attorney’s office to determine whether or not a pre-trial diversion program has been established and to determine if their offense qualifies for the program.
Nevada: The state of Nevada has a number of specialized programs that allow for probation without an entry of judgment and the eventual dismissal of charges without a conviction, but they only apply to specific groups. Nevada currently has a program to that effect for individuals who suffer from mental illness or have an intellectual disability, for veterans and members of the military, and for first time drug offenders. Nevada does have a program for individuals who have been convicted of DUIs to attend treatment and have a reduced sentence, but this program does not allow the sentence to be deferred or the conviction to be set aside in most cases. Only a third time DUI offender can have their entry of judgment deferred to enter a treatment program, and this program can only be used once. To qualify for this program, the offender must be diagnosed as an alcoholic by a physician or a drug and alcohol abuse counsellor.
New Hampshire: New Hampshire does have a conditional discharge program outline in their state statutes, but this program does result in a conviction on their criminal record that can only be removed through expungement.
New Jersey: New Jersey has a conditional discharge program for minor drug offenses, and a Pre-Trial intervention program for more serious indictable offenses, but DUI offenders do not qualify for either, as DUIs are considered traffic violations and not criminal offenses in New Jersey. This means a DUI offense would not appear on a criminal record. Unfortunately, even if the DUI is considered to be a traffic violation, it still results in inadmissibility to Canada. This places individuals with a DUI from New Jersey in a precarious position in terms of travel to Canada, because the DUI not being a criminal offense means it does not qualify for conditional discharge programs or for an expungement.
New Mexico: As in Nebraska, New Mexico’s state statutes empower district attorneys to establish a pre-prosecution diversion program for their jurisdictions. Offenders with no prior felony convictions for violent crime and no prior convictions at all in the previous ten years will qualify for this program. To determine if you may qualify for a pre-prosecution diversion program, individuals should consult their district attorney’s office to determine if a program is offered and which criminal offenses qualify. The offenses that qualify for these programs could differ from district to district.
New York: New York state does not currently have a diversion program of any type for offenders charged with a DUI. New York does have a Drinking Driver Program, but this education program is designed to help individuals charged with a DUI get their license reinstated, not to erase their conviction.
North Carolina: North Carolina does have a program for deferred prosecution, and this program technically does not exclude DWI charges from eligibility. One requirement of deferred prosecution in North Carolina is that the prosecutor agrees to the deferred prosecution, and in practice, prosecutors in this state will not agree to use this program for a DWI or an aiding and abetting a DWI charge.
North Dakota: North Dakota’s deferred imposition of sentence as a sentencing alternative is subject to certain restrictions. Unfortunately, the deferred imposition of sentence is not available to individuals who have been charged with a DUI in North Dakota.
Ohio: In Ohio, prosecuting attorneys have the option to establish a pre-trial diversion program for adults in their jurisdiction. The Ohio statutes list a number of offenses that are ineligible for pre-trial diversion, including vehicular homicide, compelling prostitution, endangering children, and perjury. DUI charges are also ineligible for pre-trial diversion programs in Ohio.
Oklahoma: Oklahoma also has a deferred judgment sentencing option, and upon completion of the conditions, the defendant is discharged without a conviction and the guilty plea will also be expunged from that person’s criminal record. Individuals charged with a DUI are eligible for the deferred prosecution program, but they will be required to participate in an alcohol and drug substance abuse evaluation program as a condition of the program.
Oregon: Oregon has a statute outlining the restrictions for probation without entering a judgment of guilt for misdemeanour first time offenses, but both driving under the influence of intoxicants and domestic violence charges make an individual ineligible for this program. Almost all other misdemeanour charges are eligible for this program. A similar conditional discharge program governed by a separate statute that allows for dismissal of charges after the completion of probationary terms is also available for many drug possession charges.
Pennsylvania: The State of Pennsylvania has created a conditional discharge program called Accelerated Rehabilitative Disposition (ARD) that gives some offenders the opportunity to have their charges dismissed without entry of judgment upon the completion of certain conditions. The program is an excellent choice for first time DUI offenders, and conditions of the program generally include fees, attendance at a DUI education program, a drug and alcohol evaluation, and a driver’s license suspension.
Rhode Island: Rhode Island’s deferment of sentence statute outlined a program whereby an individual can have their charges exonerated and the criminal record sealed after the completion of a five year deferment period. Individuals charged with a DUI while a child under the age of 13 was a passenger in the vehicle are ineligible for deferment of sentence. Rhode Island’s DUI laws are very strict, and DUI offenders must complete all aspects of the sentence outlined in statutes, which include alcohol treatment programs, community service, and courses on driving under the influence.
South Carolina: Pre-Trial Intervention programs are available for offenders to have their charges dismissed and expunged after they complete all of the terms of their 90 day probation. A number of offenses do not qualify for this program, including blackmail, crimes of violence, and DUI charges.
South Dakota: South Dakota’s suspended imposition of sentence program places a first time offender on probation without entering a judgment of guilt after they plead guilty to a crime. Both misdemeanors and felony offenses qualify for participation in this program so long as they are not punishable by life imprisonment or death. DUI charges are eligible for a suspended imposition of sentence.
Tennessee: The state of Tennessee has a deferral program that is popular among DUI offenders. Without making a guilty judgment, the court can place a defendant on probation and dismiss all proceedings against the person after they complete all of the conditions of their probation. The conditions for DUI offenders include participation in a rehabilitation program, restitution, drug and alcohol assessment and treatment, and participation in a DUI education program.
Texas: The Texas deferred adjudication program places defendants on community supervision with a chance to have their charges dismissed upon completion of their term without entering an adjudication of guilt. Individuals charged with certain offenses involving alcohol, including driving, boating, or flying while under the influence, are ineligible for deferred adjudication. In recent years Texas lawmakers have considered reinstating the deferred adjudication sentencing options for DUIs, but no legislation to that effect has been passed yet.
Utah: Utah has the options for offenders to make a “plea in abeyance,” where no judgment or conviction is entered and the individual is placed on probation. Upon the successful completion of the probation, the charges against the defendant will be dismissed. In Utah, DUI offenders are ineligible for pleas of abeyance.
Vermont: After pleading guilty, offenders in Vermont have the possibility of having their sentencing deferred and being placed on probation. When they successfully fulfill the terms and conditions of their probation, the guilty verdict is stricken and the defendant is discharged. This differs from the conditional discharge process in Canada and many other American states as there is an adjudication of guilt and a conviction. Some offenses are excluded from eligibility, including certain sexual assault charges. State statutes do allow a deferred sentence for a DUI charge, but in practice they are considered difficult to get as a sentencing option. Second, third, and subsequent DUI offenses do not qualify for deferred sentencing.
Virginia: Virginia’s deferred disposition has been the subject of quite a bit of confusion for offenders, as a court ruling that judges did not have the jurisdiction to defer a sentence, reducing options for sentencing. That ruling was then overturned by the Supreme Court of Virginia, allowing for deferred disposition to be re-instated as a sentence. While deferred disposition is now allowed, only certain offenses, including possession of alcohol by a minor, assault and battery, and domestic abuse, qualify for the program. Certain offenses against property and drug possession offenses can also qualify. DUI offenses do not qualify.
Washington: Washington state has a comprehensive deferred prosecution program that is available for individuals charged with crimes who are deemed to be dependent on drugs or alcohol or for individuals with a mental illness. For offenders with DUI charge, as a condition of the program the individual must be diagnosed as alcohol dependent and must get sober. It may not be advisable to use this program if the offender is unwilling to get sober, as a violation of the program will result in the charge moving forward.
West Virginia: West Virginia has a sentence deferral program specifically designed for individuals who have been charged with a DUI. Without entering judgment, the court can assign a defendant to probation, which must include participation in the Motor Vehicle Alcohol Test and Lock Program for at least 165 days. When the program and other conditions of probation are met, the court can dismiss the charges. This program can only be used once, and individuals with a commercial driver’s license or who have been charged with a DUI before are ineligible.
Wisconsin: Wisconsin has a deferred prosecution program both for adults and juveniles. It is important to note that in Wisconsin, a first DUI is not considered a criminal offense so long as no passenger in the car at the time of the offense was under the age of 16. The second and any subsequent DUI offenses are considered criminal offenses, but they are not eligible for deferred prosecution.
Wyoming: In Wyoming, offenders can get deferred prosecution in lieu of a conviction. The court does not enter a judgment of guilty, places the offender on probation, and after the conditions of the probation are completed the charges can be dismissed. Only first time offenders are able to take advantage of this program. As in many other states, individuals who hold a commercial driver’s license are not eligible for deferred prosecution.
DISCLAIMER: Each individual case is different, and the information provide on this page does not constitute legal advice. Individuals who have been charged with a DUI should always consult an attorney for advice relevant to their unique situation. Individuals using this resource should also keep in mind that conditional discharge and DUI sentencing laws in all 50 states are subject to change. FWCanada recommends always consulting the penal or criminal code of your state to confirm the accuracy of this information.
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