DUI Diversion Generally & Miami-Dade County “BOT” / Back on Track Program Specifically

Diversion & B.O.T. (Back on Track – the D.U.I. Diversion Program offered by the Miami-Dade County, State Attorney Office): A Practical Guide by Michael A. Haber, P.A.

1. What is “Diversion”?

   Diversion is a program – a mechanism – which is designed to make you think twice about future criminality by way of having you jump through a series of proverbial hoops, during a period of supervision, and the successful completion of which will result in a dismissal of your charge.

2. Who controls diversionary programs?

   Diversion programs are all exclusively owned and operated by the State Attorney’s Office, thus they (the State) enjoy absolute and unequivocal discretion as to whether to admit you, keep you or “graduate” you from their program.

3. How do I get into a diversionary program?

   You have no “right” to diversion and a Judge cannot Order you into a diversionary program. You only gain admittance if the program is offered to you by the State Attorney.

4. What are the criteria for admission into diversion?

   Each State Attorney’s Office sets it own criteria, and the criteria can vary not only from jurisdiction to jurisdiction, but also within the same jurisdiction (i.e. different counties may have different criteria for same offense, or the SAO may offer programs with varying criteria within its own jurisdiction).

5. How do I know whether to enter a diversionary program?

   Even though successful completion of diversion will result in a dismissal, it behooves you to be sure that diversion is right for you, given the facts and circumstances of your unique case. There may or may not be viable defenses to the charges, affirmative or otherwise, or there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges without going through diversion. You are not likely to get diversion twice, so if you have a viable alternative to taking diversion then you should consider the same, and the only way that you will know is to first discuss the case with a skilled and experienced criminal defense lawyer.

6. What is BOT?

   BOT, or “Back on Track”, is the Miami-Dade County State Attorney’s Office DUI diversionary program. Successful completion of BOT results in a dismissal of your DUI charge (and, almost always but not necessarily, also dismissal of all charges which were filed concurrent with your DUI). If you successfully complete the program then, instead of having a permanent criminal conviction for DUI on your record, you will receive a “withhold of adjudication” (no points / no conviction) for the reduced charge of “reckless driving”, which will naturally vanish off of your Florida driver history in due time.

7. What does BOT involve?

   There are 2 tiers for BOT known as Tiers 1 and 2 (the details will be listed below). Tier 1 applies to folks who are not disqualified (the details of disqualification will be listed below) and who’s breath reading was below .15. Tier 2 applies to folks who are not disqualified and who’s breath reading was between .15 and .25, or to folks who refused to provide a breath sample. Tier 1 is a 6 month program and Tier 2 is a 12 month program.

8. What are the “disqualifers” for BOT?

   If you had a prior DUI arrest, regardless of the outcome of that case, then you are not eligible for BOT. If your DUI involved an accident either for which you were “at fault” or in which someone (including you) was injured, then your are not eligible for BOT. If you had minor children in the car at the time of your DUI arrest then you are not eligible for BOT. If your breath was over .25 then you are not eligible for BOT. If you were driving on a suspended license at the time of your DUI arrest then you are not eligible for BOT. If you have any felony arrests which were not dismissed (this would include a withhold of adjudication) then you are not eligible for BOT. If you have more than 2 misdemeanor convictions then you are not eligible for BOT. If you have completed more than one diversionary program before, regardless of the underlying offense, then you are not eligible for BOT. If you have any history of “aggressive driving” (i.e. prior reckless, fleeing and eluding, leaving the scene of an accident, etc.) then you are not eligible for BOT. In a nutshell, BOT is offered to first time, non-complicated, plain Jane DUI arrestees.

9. Why is getting into BOT important to me?

   The Florida Legislature has made DUI convictions a lifelong stigmata which can never be sealed or expunged and which will follow you through out your life, wherever you go and whatever you do. The permanent criminal conviction can effect you in many ways, including but not limited to: insurance premiums, work, housing, loans, education, professional licensing, and so on.

10. What can I do if I do not qualify for admission into BOT?

    Sometimes it is possible to secure a waiver and get someone who is initially disqualified admitted into BOT nonetheless. This process involves negotiation and in depth persuasive discussions with the State by a skilled and experienced criminal defense lawyer. While there are no guarantees in either life or litigation, Michael A. Haber, PA has successfully assisted seemingly ineligible client’s to secure admission into BOT not withstanding at fault accidents, exaggerated breath readings and concurrent possession charges. Again, a skilled and experienced lawyer can make all the difference in the world.

11. What does BOT involve?

    The Miami-Dade SAO has essentially made completing BOT the functional equivalent of performing the various “minimum mandatory” penalties associated with a DUI conviction prior to your case being closed. In Miami-Dade County the SAO uses 2 different private companies to administer the program. They are called “The Advocate Program” and “Court Options”. Following are the conditions for the various Tiers.

12. What does Tier 1 involve?

    As of November, 2014, Tier 1 is a 6 month program for non-disqualified persons with a BAC (breath reading) of less than .15. Monetarily there is a $500 cost of supervision, a $300 “donation”, $252 for DUI School and a mandatory substance abuse evaluation (note that “treatment” is usually required and each “session” involves additional costs which are generally in the $250-$500 range), $40 for the “Victim Impact Class”, $50 for “costs of prosecution” and potential “costs recovery” for the arresting police department (yes, you can be required, as a condition to successfully completing BOT, to reimburse the cops who arrested you). The total costs associated with Tier 1, EXCLUDING LEGAL FEES, FEES ASSOCIATED WITH DMV and COURT COSTS, is usually $1,500-$2,000.00. In addition to the financial costs you must complete the DUI school, the Victim Impact Panel, the substance abuse evaluation and treatment if required, plus complete 40 community service hours and also survive 90 days with an Ignition Interlock Device installed on your vehicle.

13. What does Tier 2 involve?

    As of November, 2014, Tier 1 is a 12 month program for non-disqualified persons with a BAC (breath reading) of in between .15. and .25 or for anyone who refused to provide a breath sample. Monetarily there is a $650 cost of supervision, a $500 “donation”, $387 for DUI School and a mandatory substance abuse evaluation (note that “treatment” is usually required and each “session” involves additional costs which are generally in the $250-$500 range), $40 for the “Victim Impact Class”, $50 for “costs of prosecution” and potential “costs recovery” for the arresting police department (yes, you can be required, as a condition to successfully completing BOT, to reimburse the cops who arrested you). The total costs associated with Tier 1, EXCLUDING LEGAL FEES, FEES ASSOCIATED WITH DMV and COURT COSTS, is usually $2,250-$3,000.00. In addition to the financial costs you must complete the DUI school, the Victim Impact Panel, the substance abuse evaluation and treatment if required, plus complete 60 community service hours and also survive 180 days with an Ignition Interlock Device installed on your vehicle.

14. What else do I need to know?

    BOT is only 1/2 of the DUI equation. Picking up a DUI charge in Florida simultaneously begins 2 processes, one in court (involving the Constitution and “rights”) and the other in DMV (involving the Administrative Code and “privileges”). There are both immediate and after-the-fact DMV-related consequences of a DUI arrest which effect your driving privilege, and which must be addressed in a timely fashion. Michael A. Haber, PA will assist you with both aspects of your DUI arrest, making things as simple as possible, but ultimately it all falls upon you to both do what you are supposed to do when you are supposed to do it and, equally importantly, to not do what you are not supposed to do while you are in BOT. In this sense you will either be your own best friend or your own worst enemy.