Prosecutorial Driver’s License Suspension Reinstatement Programs
Prosecutor-Led Collateral Consequence Diversion Overview
Collateral consequences are legal and regulatory limitations that affect employment, occupational licensing, housing, voting, education, and other rights, benefits, and opportunities for those convicted of crimes. The American Bar Association (ABA) currently estimates over 45,000 state and federal collateral consequences of conviction exist nationwide. Collateral consequences apply without regard to the relationship between the crime and opportunity being restricted, such as immigration issues or the revocation of a business license after conviction of any felony. Frequently, consequences also apply without consideration of the time passed between the conviction and the opportunity being sought or the person’s rehabilitation efforts since the conviction. While a conviction on the surface might seem like a cut and dry, consequence fits the crime punishment, in reality the ripples of an individual’s involvement with the criminal justice system span far and wide and permeate, in some way or another, almost every aspect of a person’s daily life.
Usually Not a Public Safety Question
Important to emphasize is that most collateral consequences that arise when an individual is arrested or convicted of a crime are not related to the underlying charge and do not have an impact on or in any manner achieve a safer public.
That is not to say that all collateral consequences fall under this umbrella. Certain collateral consequences from conviction are important to the maintenance of public safety, such as removing firearms from the possession of convicted domestic violence abusers, or preventing those convicted of assault or abuse from working with vulnerable populations such as children or the elderly.
That being said, other collateral consequences–the ones that prosecutors can and should address–are not related to the underlying offense and can seriously impact an individual’s ability to move forward in life by impeding their financial stability and means to make a living, their housing situation, and other crucial areas of their lives.
Examples where an unnecessary collateral consequence does not benefit public safety include:
- Driver’s license suspensions based upon nonpayment of court costs (discussed in detail in the latter part of this page);
- Loss of voting rights while imprisoned, on parole, or during probation, due to a felony conviction;
- Loss of an occupational license due to charges or conviction unrelated to the integrity or safety of the profession (for example, in Nevada a person with any felony conviction on their record is ineligible to sit for a barbering exam to get their barber’s license);
- Individuals with a felony conviction are often ineligible or have limited eligibility for public funds such as student loans;
- … and many more.
Furthermore, not only do collateral consequences not benefit public safety in most cases, but they may actually allow recidivism to flourish. When ex-offenders are released, they are often prevented from accessing certain areas of society necessary to succeed–housing, employment opportunities, not to mention the social stigma associated with a conviction or arrest–and thus they are less likely to move forward with their lives, support themselves and their families, and become law-abiding citizens.
Perpetuating Racial and Socioeconomic Inequities
Additionally, the inequity of collateral consequences arising out of the criminal justice system cannot be overstated. People of color are already disproportionately in contact with the criminal justice system, from more frequent and overpolicing of populations, to more aggressive prosecution and sentencing versus their white counterparts. This overpolicing and over-prosecution can lead to, among other things, an increased level of encounters with the criminal justice system over the course of an individual’s lifetime, general distrust of the legal system and its actors by communities of color, racialized trauma that can span generations and severely impact mental health, and a general failure by system actors to make persons of color feel safe and valued as members of their own communities. These already-existing concerns, connected with the umpteen collateral consequences that arise each time a person of color comes into contact with the criminal justice system, creates an almost insurmountable roadblock for many people of color when it comes to housing, employment, and general quality of life.
Why Prosecutors Should Care–and What We Can Do to Help
Prosecutors are uniquely situated to alleviate collateral consequences that accrue during an individual’s interaction with the criminal justice system. Through interventions such as pre- and post-arrest diversion programs, pre- and post-conviction diversion programs, and other actions such as records expungement or sealing, prosecutors have an opportunity to address a rampant problem that affects their communities and perpetuates punishment long after an individual leaves the criminal justice apparatus, and often disproportionately affects communities of color. This outcome does not benefit the public safety or the public good, and as such, alternatives can and must be explored.
The Four Stages of a Case Where Collateral Consequences May Arise
Prosecutor Decision Points
There are many points along the timeline of a case that prosecutors can intervene to possibly ameliorate the collateral consequences that arise from criminal cases. Consequences can arise even before a case is officially brought against a defendant, and can continue long after the case reaches a disposition. This project has identified four broad inflection points, or “decision points,” where a prosecutor may decide to intercede: Pre-Arrest or Pre-Charge, Post-Arrest or Post-Charge, Post-Conviction, and Post-Release.
While a majority of collateral consequences will occur after an individual’s formal entry into the criminal justice system via arrest and/or conviction, collateral consequences can also accrue before an individual “officially” enters the criminal justice system via a formal charge or arrest. For example, interactions with law enforcement may lead to an entry into the law enforcement agency’s internal reporting system, which keeps track of individuals and their interactions with police, any arrests made, and any other information about the interaction. These records are internal and are not removed if the police investigation proves that no arrest should be made.
Consequences that can arise at this stage are often fewer than at other stages, but even something as short-term as temporary police detention can, for example, prevent someone from getting to work or violate a company’s employment policy, which may result in the individual being fired. In states that are non-police-charging states, a prosecutor has the opportunity to intervene at this stage in the form of diversion or alternatives that result in a case/charges not being filed.
After a person is arrested or charged with a crime, their personal information is often entered into a database which is accessible by law enforcement and often prosecution and court personnel as well. Many jurisdictions track these arrests, regardless of outcome, and do not remove these entries or otherwise automatically expunge them if there is a dismissal, diversion, or non-plea/non-guilty verdict outcome (see “Post-Release” below), meaning that there is always a continuous record of how many times an individual is arrested or charged with a crime. Seeing the number of times a person has been arrested, particularly for certain crimes, can impact how the criminal justice system handles their case. For example, this can take the form of a harsher plea deal or higher sentencing from the court.
It is at this stage that prosecutors can intervene and divert the developing case before it becomes a permanent conviction on someone’s record, something that carries with it lifelong consequences. Additionally, required court appearances post-charge can begin to impact an individual’s employment and financial situations (as they may miss work, and coordinating transportation to and from court, paying for parking, and navigating other associated fees like hiring a private attorney or paying filing costs may impact someone’s finances). This intervention can be diversion either within or outside of the court system, arbitration, dismissal and expungement, waiver of fines and fees associated with court costs, and other remedies that intercede before additional collateral consequences can accrue.
Additional collateral consequences are compounded once an individual is convicted of a crime or their case otherwise reaches a disposition, such as a No Contest plea, a guilty verdict after trial, or other similar determination. At this juncture, the case is still under the jurisdiction of the court. If the case has an imprisonment or jail time element, the individual usually loses their employment, housing, and days, months, or years of their lives to incarceration. The disposition of the case is likely reflected in public records, unless there is an expungement statute or other agreed-upon outcome negotiated between the prosecution, the defense, and the court which involves some kind of expungement upon successful completion of certain requirements, such as anger management classes or substance abuse treatment.
At this stage, the individual is no longer under the supervision and jurisdiction of the court, and the case has a final disposition. The individual may have been just released from prison, or the case may be finalized a different way, for example, with the individual having completed any classes or programs on probation as ordered by the court. The case outcome will likely be reflected in public records available for viewing, thus giving rise to a slew of additional or expanded collateral consequences. This is the expungement/expunction/record sealing stage.
Driver’s License Suspensions
Driver’s license suspensions are a particularly ubiquitous source of collateral consequences, especially as relates to nonpayment of fines and fees. Every day around the country, driver’s licenses are suspended for reasons that do not have to do with that individual posing a public safety risk, such as failure to appear in court, failure to pay court fines and fees, and other situations often unrelated to the underlying charge. Driver’s license suspensions based on fines and fees nonpayment penalizes an individual for their financial status rather than for the crime committed, and therefore do not serve the greater purpose in keeping communities safe.
A majority of states, as well as the District of Columbia, employ some kind of debt-based suspension, revocation, or nonrenewal framework, which has resulted in over 11 million driver’s license suspensions nationwide. This, in turn, severely impacts the country’s workforce, as those who need to use car transportation to get to and from work every day are faced with the impossible decision of choosing whether to make a living or whether to drive with a suspended license.
The impact of these types of suspensions is manyfold. Not only does the debt itself impact individuals’ economic stability and make it difficult for individuals to financially support themselves or their dependents, but taking away someone’s (potentially only) means of transportation can negatively impact their ability to get to and from work, thereby trapping them in a further cycle of debt.
There are many ways that prosecutors specifically can intervene to address these collateral consequences. This project has articulated four key points in a case’s timeline where collateral consequences may arise.
Driver’s License Suspension Programs Case Study: Marion County, Indiana
More information about the Marion County Driver’s License Suspension programs can also be found in the webinar “A Second Chance.” You can find this webinar in the “Training Resources and Materials” section of this webpage.
Approximately 400,000 Indiana residents are subject to suspended licenses due to unpaid fines and fees. Marion County, Indiana–county seat Indianapolis–is home to roughly 964,500 people according to the 2019 United States census, and of those individuals, approximately 100,000 had outstanding driver’s license suspension cases prior to the inception of several programs aimed at reinstating drivers’ licenses and eliminating debt. The Marion County, Indiana Prosecutor’s Office has firmly stated its position regarding ending debt-based driver’s license suspensions, and has taken concrete steps to begin to address this issue.
- Jurisdiction: The Marion County Traffic Court has jurisdiction over “all traffic-related misdemeanors, infractions, and ordinance violations.”
- Components: the Court, the Prosecutor’s Office, the Public Defender Agency, and the Court Violations Bureau
If the individual is charged with:
- Driving While Suspended, or
- Operating without Ever Receiving a License;
… and the individual:
- receives a valid driver’s license or learner’s permit;
… the Marion County Prosecutor’s Office dismisses the case upon obtaining proof of valid license.
This does not require diversion, just proof of valid driving credentials.
This policy does not apply to reckless or aggressive driving cases.
Post-Conviction and Post-Release
The focus of Marion County’s Second Chance Workshops is license reinstatement, as the most common suspension reason was “failure to pay,” or FTP, fees and costs arising from Traffic Court. This is an indefinite suspension by the court.
The program helps those with driver’s license-related fines and fees manage their payments and connect them with legal representation to assist them with filling out and filing the necessary paperwork to waive reinstatement fees. Since the inception of the program in 2019, there has been a drop of almost 20,000 suspended licenses in Marion County.
The Second Chance workshops in particular have served over 950 individuals and hosted over 7 workshops (as of October 2020). This program has continued through the COVID-19 pandemic, conducting virtual seminars to provide individuals with information about how to reinstate their licenses and processing over 300 cases in the year 2020–all despite court and clerk’s office closures and other setbacks due to the pandemic.
How it Works
- Participant Eligibility:
An individual is eligible for the Second Chance program if they:
- Have a current license suspension, or
- Have a suspension as a Habitual Traffic Violator (HTV)
An individual is not eligible if they:
- Have an active/pending alcohol-related suspension,
- Have a prior conviction for hit & run with death or serious injury,
- Have a pending felony case, or
- Have an active arrest warrant.
- Intake & Workshop Preparation
- Someone from the prosecutor’s office contacts the individuals eligible to register to sign them up and get their information, or the individual contacts the MCPO staff
- The individual is then registered for a workshop
- MCPO reviews their driving record and criminal history, as well as doing a public case search
- MCPO paralegals draft “Participant License Worksheets” based on the individuals’ records
- This worksheet includes a checklist for what the individual has to do in order for things to become valid
- The deputy prosecutor then goes through the worksheet and determines whether each FTP case should be dismissed, waived, or paid, and indicates such on the worksheet (those cases that are within the jurisdiction of Marion County only)
- Remote Workshop
- Worksheet sent to participant by email or mail, volunteer attorneys are also provided a copy as well as the participant’s record
- Volunteer attorneys call participants and provide instructions on how to get a valid license
- Deputy prosecutor makes themselves available during the workshop to answer any questions from participants
- Participant agrees or disagrees with proposed worksheet outcomes
- After Remote Workshop
- Volunteer attorneys communicate with MCPO about what happened at the workshop
- MCPO staff e-file the agreed-upon dismissals
- Court staff lets the Bureau of Motor Vehicles know to lift the suspensions
COMMON WORKSHOP ISSUES
Some issues that have cropped up with this program include:
- Habitual traffic violators (HTV) can clear their Traffic Court FTP suspensions but have to get specialized driving privileges in order to clear the HTV status itself
- Participants still need to address their out of county or -state suspensions–the Marion County Prosecutor’s Office does not have jurisdiction over those
- BMV fees and insurance requirements
- Civil judgments in auto-accident cases and the suspensions that arise from them
- The majority of suspensions arise from FTP and are resolvable
- Participants who may have long ago given up on ever getting their license–sometimes decades ago–finally able to get valid DLs
- The Indianapolis Legal Aid Society guides these individuals through the process
- Encourages public safety by maintaining valid licenses and insurance
Pre-Charge (Pre-Filing Diversion)
Project Valid is a new pre-filing diversion program that was launched May 29, 2020. The Marion County prosecutor’s Office is currently working with law enforcement and the community to encourage defendants to sign up for the program.
How it Works
- An individual receives a summons for Driving While Suspended or Operating a Motor Vehicle Without Ever Receiving a License.
- Normally, the MCPO would wait until after the case is filed for the individual to get a valid license in order to dismiss the case. Instead, the MCPO allows the person to sign up (voluntary and free participation) and agree to get their valid license within one year.
- If the person is successful, the MCPO no-files the case and expunges the summons early.
- Free for the participant
- Participant avoids costly and multiple court appearances while working to get their driver’s license reinstated
- If successfully completed, no record of summons and individual has a valid license
- Reduction in caseload for court and attorneys involved
Driver’s License Suspension Programs Case Study: Durham, North Carolina
More information about the Durham County Driver’s License Suspension programs can also be found in the webinar “A Second Chance.” You can find this webinar in the “Training Resources and Materials” section of this webpage.
Court costs in North Carolina have risen steadily for decades. In 1995, the District Court fee was $41. As of 2020, it is $147.50–a 260% increase. If someone had an unpaid traffic ticket or failure to appear, their license was suspended indefinitely. To address this issue, the DEAR program, along with the public defender’s office, the private bar, and the district attorney’s office partnered up to create a monumental change in Durham. DEAR stands for Durham Expunction & Restoration Program.
How Suspensions Impacted People in Durham County
Below is an excerpt from the presentation “A Second Chance,” in which the Durham Expunction & Restoration Program and the Durham County Prosecutor’s Office participated. These are just some of the examples of how suspensions impact the community, described by the individuals themselves:
Slide copyright Daniel Bowes and the Durham Expunction & Restoration Project.
In addition to the anecdotes from Durham County residents impacted by their driver’s licenses being suspended, the data also demonstrates how catastrophic failure to pay traffic cases were in North Carolina, particularly for individuals of color.
Slide copyright Daniel Bowes and the Durham Expunction & Restoration Project.
How the DEAR Second Chance Mobility Pilot Functions
The DEAR Second Chance Mobility Pilot is a collaboration with the Durham County Prosecutor’s Office to eliminate traffic court debt. It has two models to eliminate this fines- and fees-based debt, thus allowing offenders to begin the process to reinstate their licenses. The models are based upon the relevant North Carolina statutes that allow for debt remittance.
MODEL 1: Defendant-initiated motion
- Defendant makes the motion to waive debt based on inability to pay (must be documented)
- Prosecutor consents to the motion
- Judge approves
This resulted in the elimination of over $200,000 in traffic court debt, across 9 jurisdictions, for over 500 people. The court granted over 90% of these motions.
MODEL 2: Mass relief motion
- Prosecutor makes motion to remit debt
- Batches can between 250-1000 motions per week
- This motion based upon
- Length of suspension, and
- Nature of traffic offense
Over $5mil in traffic court debt has been eliminated by this model, benefitting over 15,000 people in Durham, Mecklenburg, and Pitt counties–99% of these motions to the courts have been granted.
Training Resources & Materials
External Online Resources
- Fines and Fees Justice Center Free to Drive Campaign
- National Inventory of Collateral Consequences of Conviction (NICCC)
- DEAR Durham
- UNC School of Government Collateral Consequences Assessment Tool
This list will grow as more resources are added!
A Second Chance: Driver’s License Suspension Programs in Durham, NC and Marion County, IN
Prosecutors Engaging with People with Lived Experience
This page will continue to be populated with more content and resources as they are generated.
- Criminal Justice Section. n.d. “Collateral Consequences of Conviction Project.” American Bar. Accessed January 30, 2021. http://web.archive.org/web/20210118150232/https://www.americanbar.org/groups/criminal_justice/niccc/.
- Welcome to the NICCC. n.d. “What are collateral consequences?” National Inventory of Collateral Consequences of Conviction. Accessed April 30, 2021. https://perma.cc/F245-M55D.
- See, for example, the Federal Student Aid website, which outlines the restrictions associated with criminal convictions. Note, for example, that drug-related offenses are considered grounds for ineligibility and/or revocation of current student loan aid: https://studentaid.gov/understand-aid/eligibility/requirements/criminal-convictions. Drug convictions, especially drug convictions that have occurred outside the timeline of receipt of student loans, have nothing to do with a person’s desire to get financial assistance with their education and therefore serve no purpose in achieving public safety goals.
- John Malcolm and John-Michael Seibler. 2017. “Collateral Consequences: Protecting Public Safety or Encouraging Recidivism?.” The Heritage Foundation. Last modified March 7, 2017. https://www.heritage.org/crime-and-justice/report/collateral-consequences-protecting-public-safety-or-encouraging-recidivism.
- National Association of Criminal Defense Lawyers. 2021. “Race and Collateral Consequences.” Stay Informed: Racial Disparity. Last modified April 16, 2021. https://perma.cc/D3A8-YGH8; see also, e.g., Washington Lawyers’ Committee for Civil Rights & Urban Affairs, “The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and Virginia Law.” (October 22, 2014), https://www.washlaw.org/pdf/wlc_collateral_consequences_report.PDF.
- Fines & Fees Justice Center. 2019. “Driver’s License Suspension.” Free to Drive: National Campaign to End Debt-Based License Restriction. Last modified June 25, 2019. https://finesandfeesjusticecenter.org/campaigns/national-drivers-license-suspension-campaign-free-to-drive/.
- See, for example, https://www.wrtv.com/news/local-news/marion-county-prosecutor-issues-statement-supporting-end-of-debt-based-license-suspension-in-indiana, describing the statement Marion County Prosecutor Mears issued regarding driver’s license suspensions in his jurisdiction, specifically, “Approximately 400,000 Indiana residents have suspended driver’s licenses due to unpaid fines or fees, resulting in a cyclical poverty trap; those who can’t pay the fees lose their means of transportation to their jobs, complicating their ability to ever pay the fees necessary to reinstate their license. In true nature of helping the constituents of Indiana, reinstatement fees must be eliminated or lowered.”
- United States Census Bureau. 2019. “Marion County, Indiana.” Quickfacts. https://perma.cc/7HY5-423H.
News & Updates
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About this Project
This resource was developed and made possible with the support of the Charles Koch Institute and is part of the North Carolina Collateral Consequences project initiative. CKI believes an effective criminal justice system protects people and preserves public safety, respects human dignity, restores victims, removes barriers to opportunity for people with criminal records, and ensures equal justice for all under the law. To advance that cause, the institute partners with social entrepreneurs working across the key institutions of society — including education, communities, business, and government — and supports applied research to turn ideas into practical solutions. To learn more, please visit their website.