DPA as an Effective Criminal Defense Strategy

- Lotze Mosley

D.C. criminal defendants may have the opportunity to enter into a deferred prosecution agreement (DPA) with the government in certain situations. DPAs are increasingly used in situations of perceived difficulty in obtaining a criminal conviction or if a criminal conviction would result in unwarranted collateral consequences for the defendant and third parties.

Benefit of DPAs

A DPA will typically contain:

  • Admitted statements of facts
  • Conditions designed to promote compliance with relevant law/s and to deter future violations of the defendant
  • Time period for the agreement

A DPA provides a defendant an opportunity to demonstrate their good conduct and a chance to avoid conviction after completing the terms of the DPA. In the meantime, government does not lose its chance to prosecute provided that the necessary court orders are obtained under the Speedy Trial Act. If the defendant fails to abide by the DPA’s terms, government can prosecute based on the admitted facts of the agreement.

DPA and the Speedy Trial Act

The Speedy Trial Act provides time limits for prosecution to complete specific stages of a criminal prosecution. One of the requirements under the Speedy Trial Act is for government to start trial within 70 days of the filing of the information or indictment. It also provides for the exclusion of any period of delay resulting from a written agreement between the government’s attorney and the defendant, such as a Deferred Prosecution Agreement.

Filing of Charges and Court Approval of DPA

DPAs require the filing of formal charges but upon their fulfillment, the government will later move to dismiss all charges with prejudice. In the meantime, the government suspends prosecution and trial by moving to exclude the time for the DPA’s effectivity under Section 3161 (h)(2) of the Speedy Trial Act.

Can a District Court Deny the Motion for Exclusion of the DPA’s Time at Its Discretion?

A D.C. appellate court recently ruled against a lower court’s order denying the exclusion and the DPA. It held that courts cannot deny motions for exclusion of time in connection with a DPA based on concerns about the propriety of the DPA or lack of indictment against certain individuals. In other words, courts cannot question the Executive branch’s discretion in initiating and dismissing criminal charges.

In the District of Columbia, the experienced attorneys at Lotze Mosley, LLP help clients raise strategic criminal defenses in a wide range of cases such as violent crimes, white collar crimes, fraud, gun crimes, and DUI cases. Learn more about how we can help you. Call us today at (202) 393-0535.