Intervention in Lieu of Conviction

December 17, 2018

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?

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.  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?

ILC may be granted subject to the following:

  • The present offense is notany of the following:
    1. A felony of the 1st, 2nd, or 3rd
    2. An offense of violence.
    3. A violation of divisions (A)(1) or (2) of the Aggravated Vehicular Homicide statute.
    4. A violation of division (A)(1) of the Aggravated Vehicular Assault statute.
    5. An OVI offense.
    6. Any offense for which the sentencing court is required to impose a mandatory prison term.
  • The offender is notcharged with any of the following:
    1. Corrupting Another with Drugs
    2. Illegal Manufacture of Drugs, Illegal Cultivation of Marijuana, Methamphetamine Offenses
    3. Illegal Administration or Distribution of Anabolic Steroids
    4. Trafficking or Aggravated Trafficking in Drugs that is a felony of the 1st, 2nd, 3rd or 4th degree
    5. 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 enough to qualify a person for ILC?

No.  The drug or alcohol problem, must be “a factor leading to the criminal offense with which the offender is charged”.

Do I have to plea guilty to participate in ILC?

Yes.  The Defendant must admit to guilt to the adult probation department during the screening process and enter a plea of guilty in open court before the trial judge.  If you do not wish to plea guilty to the offense, ILC will not be a program that works for you.  

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.  Your concerns about inpatient treatment should be mentioned to your attorney, and to the professional performing your ILC evaluation.  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 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.  If you are already in treatment, the trial judge might be willing to allow you to continue that treatment if it appears to be working.  

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.

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?

This is always a difficult question when it comes to ILC.  You should consult with an attorney to review all of your possible options before deciding to participate in ILC.  

What happens when I’ve completed all the conditions of my ILC?

The Court dismisses the case.  

What are the steps in pursuing a Motion for ILC?

  • 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 ILC, 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 a motion for ILC with the 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 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.  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 guilty plea is never entered against the Defendant. The Defendant can then immediately file a motion to have his/her record expunged.  If the Defendant violates the terms of his/her ILC, then the Defendant is brought back to Court, for a violation hearing on the terms of ILC.  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.  At the time of sentencing, all options will be available to the trial court.  The Defendant could receive standard community contro/probation, or be sentenced to the Department of Corrections. 

ILC can be very beneficial to certain Defendants, but it is not right for everbody.  If you are facing criminal charges, or have a question about ILC please contact one of the criminal defense attorneys at Schuh & Goldberg.  We will be happy to review your situation, and determine if ILC is appropriate in your case.  

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