The First State Celebrates Constitution Day 2010

Andrea Rocanelli

photo of Andrea Rocanelli

Author: Andrea Rocanelli
Hon. Andrea L. Rocanelli was appointed to the Court of Common Pleas in April 2009. Prior to her appointment, Judge Rocanelli was Chief Disciplinary Counsel for the Office of Disciplinary Counsel of the Supreme Court of Delaware. She received her undergraduate degree from Boston College and her law degree from Harvard Law School.

Waiver of Constitutional Rights to Participate in Court Drug Diversion

You are presumed innocent. You have the right to a jury trial. The State must prove you guilty beyond a reasonable doubt.

These are a few of the constitutional rights that apply when you are facing criminal charges. Why would you ever want to waive your constitutional rights?

If you are facing criminal charges, a Deputy Attorney General may offer to dismiss certain charges if you admit guilt to other charges. This is a plea offer.

In order to take advantage of the plea offer in exchange for the dismissal of some charges, you might consider waiving your rights and entering a plea of guilty. You might decide that it is better to accept the offer and plead guilty rather than to take the chance that you will be found guilty of all the charges at a trial.

What rights do you waive when pleading guilty?

If you enter a plea of guilty and admit that you did engage in criminal activity, you will be waiving all of your constitutional trial rights relate to that charge. By admitting guilt, you waive the presumption of innocence for that charge. By admitting guilt, you waive the right to a trial by a jury of your peers. You also waive the right to defend yourself against the charges. Finally, by admitting guilt, you relieve the State of its burden to prove you guilty beyond a reasonable doubt.

What happens when you plead guilty?

With very limited exceptions, once you plead guilty, you will be convicted of the criminal offense you admitted and sentenced. One exception is Probation Before Judgment which offers the opportunity to satisfy conditions of probation before a conviction enters on your record. Another exception is the DUI First Offenders' Program which offers the opportunity to complete a DUI education program and avoid conviction.

Participation in Drug Diversion is another exception to being convicted after pleading guilty.

If you are offered the opportunity to participate in the Court of Common Pleas Drug Diversion Program, you will admit guilt for a drug charge such as Possession of Marijuana, Possession of Drug Paraphernalia or Possession of a Hypodermic Needle Without Authority. Therefore, if you decide to participate in the Court of Common Pleas Drug Diversion Program, you will have to waive your constitutional trial rights. However, a conviction for the charge will not enter on your criminal record when you admit guilt. Instead, entry of judgment of conviction will be stayed while you are in the Program. If you successfully complete the Program, the charge will be dismissed. If you do not successfully complete the Program, you will be convicted and sentenced.

Who is eligible for Drug Diversion in the Court of Common Pleas?

If you are charged with Possession of Marijuana, Possession of Drug Paraphernalia or Possession of a Hypodermic Needle Without Authority and you do not have any felony convictions or any misdemeanor drug convictions, you may be offered the opportunity to participate in the Court of Common Pleas Drug Diversion Program.

Why would you want to waive your constitutional rights to participate in the Court of Common Pleas Drug Diversion Program? If you successfully complete the Court of Common Pleas Drug Diversion Program, you will not have a criminal conviction. Instead, the charge to which you pled guilty will be dismissed by the prosecutor.

What will your obligations be in the Drug Diversion Program?

You will be given the opportunity to demonstrate that you are not drinking alcohol or using any drugs by providing 14 consecutive weekly clean urine screens. Also, you will be required to attend education sessions or participate in a treatment program, as determined by your needs and level of risk, as well as to attend court hearings.

What will happen if you do not successfully complete the Drug Diversion Program?

If you do not successfully complete the Program, you will be terminated from the Drug Diversion Program and convicted of the criminal offense to which you pled guilty. Because you already admitted guilt by entering a guilty plea and waiving your trial rights, there will not be a trial. A judgment of conviction will be on your criminal record.

Does Drug Diversion Program work?

Between July 29, 1998 when the first client entered the Program and June 30, 2010, 3,098 clients graduated from the New Castle County Drug Diversion Program. So far, more than 3,000 people were able to achieve and maintain abstinence from drugs and alcohol for at least 14 weeks and, hopefully, have continued to do so.

If you do not successfully complete the Court of Common Pleas Drug Diversion Program and a misdemeanor conviction enters on your criminal record, what will this drug conviction mean for you?

A misdemeanor drug conviction can be quite disruptive to your ability to get a job. Many employers will not hire someone who has a drug conviction.

A misdemeanor drug conviction may also interfere with your opportunities to qualify for some federal benefits, including financial aid for school and federal housing benefits such as Section 8.

In Delaware, a conviction for the misdemeanor offense of Possession of Marijuana will result in the suspension of your driving privileges for two years.

These are just a few examples of the consequences of a misdemeanor drug conviction.

What does the Drug Diversion Program accomplish for our community? Why should this opportunity be made available?

The use of drugs and abuse of alcohol have tremendous and far- reaching negative impacts on our community. Drug use and alcohol abuse often lead to other criminal conduct and other negative behaviors. Many addicts end up in prison for various offenses, which is very expensive for our community and has many negative repercussions for those persons who are incarcerated as well as for their families. Every person who is assisted by the Court of Common Pleas Drug Diversion Program has the opportunity to acquire skills to avoid using drugs and alcohol. Every person who graduates from the Program has maintained abstinence for at least 14 consecutive weeks, which is an excellent start for a clean and sober lifestyle. Also, persons who graduate from a court-supervised drug diversion program are less likely to re-offend and be re-arrested.