Using a Plea in Abeyance to Get Criminal Charges Dismissed

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When faced with criminal charges, a defendant may enter a plea of guilty, not guilty, or nolo contendere, meaning “no contest.”  But what is the less commonly known “plea in abeyance,” and how does it affect the charges being filed against you?  Salt Lake City criminal defense lawyer Darwin Overson explains.

What Does “Plea in Abeyance” Mean?

“Guilty” and “not guilty” are straightforward terms, but “plea in abeyance” is less self-explanatory. In plain English the word abeyance refers to a temporary state of suspension, and in legal terms, making a plea in abeyance essentially means that the prosecuting attorney will agree to dismiss your charges in exchange for certain conditions being met.  This means that if your plea in abeyance is successful, you will not be convicted, and will not have to go to jail or prison.

Alternatively, rather than getting the case dismissed, a plea in abeyance can be used to reduce the degree of the offense.  This means that, for offenses that might be a felony, a plea in abeyance could be used to reduce it to a misdemeanor, or for misdemeanors, the plea in abeyance could be used to reduce it to a simpler infraction.  Because a felony conviction may affect your life in surprising ways, such as by making you ineligible for certain jobs or barring you from owning a gun, you should probably talk to a lawyer about a plea.  Even though a plea to a reduced degree may still require jail time, a plea in abeyance may be your best option.

Regardless, this can be an absolutely tremendous opportunity for defendants.  The purpose of a plea in abeyance is not to punish, but to rehabilitate and try to ensure that the defendant will not make the same mistakes again in the future.

What Are the Requirements for Entering a Plea in Abeyance?

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Because these pleas are so forgiving where successful, pleas in abeyance are not necessarily guaranteed or available to all defendants. These pleas are generally a special one-time offer, and are typically reserved for defendants who do not have a record of prior offenses.

Only defendants charged with certain crimes are permitted to enter pleas in abeyance before court clerks, which can shorten and simplify the court process, while others must go before a judge.   Charges which qualify for acceptance by a clerk tend to be minor traffic violations, such as making improper U-turns or failing to signal, or commercial or environmental violations.  More serious offenses typically require an appearance before a judge, including but not limited to:

  • Drug possession, including marijuana possession (less than one ounce).
  • Use or possession of drug paraphernalia, such as pipes or bongs.
  • Soliciting or engaging in prostitution.
  • Certain weapons crimes.
  • Stalking and harassment.
  • Reckless or negligent child abuse.
  • Certain sex offenses, such as unlawful sexual activity with a minor, lewdness, and voyeurism. Defendants cannot enter a plea in abeyance if the victim of a sex crime was younger than 14 years old.
  • Criminal trespass, criminal mischief, and graffiti violations.
  • Assault (actual or attempted).

To check the status of your specific criminal charges, view the state judiciary’s full list of offenses under the Uniform Bail/Fine Schedule.  Start at the violation code and/or description of the charge, and move right toward the “Man Appr” column. If you see an N, a clerk is sufficient.  If you see a Y, you need to go before a judge.  Note that under new laws enacted in 2008, DUI is no longer eligible.

You should also know that once you enter a plea in abeyance, it’s not as if the case is closed and you can simply walk away without consequence.  In order to successfully avoid a conviction, you also need to make it through a probationary period without any further charges or arrests.  If you violate the terms of your agreement, you will be back at square one: facing your original charges and your original sentence.  In addition to completing this period of time without incident, under Utah law you may also need to:

  • Pay a non-refundable fee.  This fee cannot be any greater than the fee associated with the original charge.
  • Pay restitution to the victim(s) of the crime.
  • Pay for any rehab the court orders you to attend.
  • Comply with required terms for the original offense, such as abstaining from drugs and alcohol and passing urine tests.

Caveats and Limitations: Your Criminal Record

It’s important to think carefully about whether you wish to enter such a plea, because once you do, the plea cannot be withdrawn.  The only exception to this is if you did not make the plea knowingly or voluntarily, and even then, you must file a motion for withdrawal within 30 days.

Additionally, you need to understand that pleas in abeyance have their limits.  While you will not receive a conviction (which is the most important factor for many defendants), you will still have a record indicating your plea and the associated charges with the Utah BCI, or Bureau of Criminal Identification.  If you wish to seal this record, you will need to go through the process of obtaining an expungement.

What Does a Plea in Abeyance Entail?

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Since the goal of a plea in abeyance is to rehabilitate, rather than to punish or get criminals off the street, much of the terms of the agreement will involve rehabilitation and similar programs.  Typically, the programs that a defendant must participate in are related to the specific crime charged.  Additionally, the terms might change based on the individual person.

For instance, if a defendant is charged with Assault, expect the plea in abeyance to involve some sort of anger management classes.  If another defendant is charged with Assault, but it appears to be related to a drinking problem, expect that that defendant may have to go to some sort of alcohol rehabilitation classes in addition to the anger management classes.

While these requirements may sound like they are “just classes,” they should still be taken very seriously.  A plea in abeyance is not an “easy way out” of a criminal charge, and completing the requirements of the plea may be some of the most difficult work a defendant has ever done.

Aside from rehabilitation and other programs, and depending on the nature of the crime, there may be required money that needs to be paid.  Often when there was property stolen or damaged, or people injured by the crime, paying restitution is a requirement of the plea in abeyance.  This means that the defendant, in order to avoid incarceration, must “make the victim whole” by paying for damage or injury they caused.

Because of court costs, restitution, and the price of rehabilitation, entering into a plea in abeyance may be expensive.  It is still important, in order to avoid a conviction and time in jail or prison, to contact a lawyer to help you with your options.  Ultimately, being able to keep your freedom and avoid further crime is priceless.

What Happens if I Violate the Terms of a Plea in Abeyance?

Entering into a plea in abeyance is not something to be taken lightly.  While it may be a chance to avoid jail or prison, it is not intended to be an easy way out of a criminal charge.  Depending on the terms of the abeyance, you may find it too difficult to complete.  This is definitely something you should talk to your lawyer about before entering into a plea in abeyance; he will be able to help you understand the specifics of your case and the potential terms of your plea in abeyance.

It is important to note that, per Utah Code, Title 77, Chapter 2a, Section 4, the violation of any term in the agreement violates the whole agreement.  Even something as simple as failing to check in with your bail agent as required can mean that the entire agreement is broken.

Ultimately, you may still be able to recover.  It is important to contact a lawyer to help you navigate the procedure that goes with a violation, and to seek representation for the hearing.

First, after the prosecutor makes a motion to find you in violation, you should be awarded an evidentiary hearing.  This is a chance to prove to the court why they should not find you in violation.

If, after the hearing, the court finds you are still in violation, they will enter a conviction and sentence for the offence the plea was for.  Additionally, if the violation was because you committed another crime, you may still be prosecuted for that new crime.  Any money already paid in the attempt to follow the agreement (such as the plea in abeyance fee) should be credited toward any fines the court orders for this conviction.

What is My Status While I Work on My Plea in Abeyance?

A plea to a misdemeanor may be held in abeyance for up to eighteen months, and a plea to a felony may be held in abeyance for up to three years.  During this time, you are in a confusing legal status.  Some statuses are:

  • “On bail” – when you are awaiting trial, but not kept in jail
  • “Probation” – supervised release used as an alternative to jail time
  • “Parole” – supervised release from prison, after you have already been convicted and already served some of your prison sentence

Since a plea in abeyance delays any conviction or sentence until after you complete (or fail to complete) the terms of the agreement, you are not “on probation” nor “on parole.”  Technically, you should be considered out “on bail” and must check in as required as if you were awaiting trial.  If you have any doubts about your current legal status, or whether you have been convicted, placed on parole, or placed on probation, you should contact a lawyer for clarification.

If you’ve been charged with a misdemeanor or felony crime in Utah, call Salt Lake City criminal defense attorney Darwin Overson at (801) 733-1308 for a free and private legal consultation.