In 2012, the Massachusetts legislature enacted the VALOR Act, which, among other things, amended the pretrial diversion procedures in the criminal courts so as to allow judges flexibility when dealing with military veterans.  Defense attorneys and prosecutors have been arguing over the correct interpretation and implementation of the statute ever since.

The most common disagreement that I encounter has been whether the new VALOR Act allows a judge to dismiss criminal charges, or merely gives judges the authority to delay the proceedings while the military veteran/defendant seeks treatment for, e.g., PTSD or substance abuse issues.  Prosecutors were generally of the opinion that the defendant was only entitled to a temporary stay of proceedings, after which the normal criminal procedures and penalties would apply.  Defense attorneys felt that the stature must mean more than that, and that it gave judges the authority to dismiss charges after a veteran/defendant completed treatment.

Another common disagreement was whether the VALOR Act allowed a judge to continue without a finding (“CWOF”) a second or subsequent OUI charge.  The OUI statute seems to state that a second (or subsequent) offense OUI cannot be continued without a finding.  The question was, which statute controls?

Finally, we have guidance from the Supreme Judicial Court, which allowed an application for direct appellate review to answer the following two reported questions, namely:

  1. “Under the VALOR Act, may a judge exercise discretion to enter a CWOF after an admission to an OUI-second offense?”
  2. “If a CWOF is not available, may a court dismiss the charge upon successful completion of diversion, over the Commonwealth’s objection?”

In the case of Commonwealth v. Morgan, the SJC answered both questions affirmatively.  So, a judge may CWOF a second offense OUI for qualifying veterans, and a judge may also dismiss certain criminal charges over the prosecutor’s objection after the veteran/defendant completes required programs.

For the purposes of my practice, the most important (because most likely to arise) issue that was “decided” in the case, was not even argued.  The issue is whether the VALOR Act can be employed to obtain pretrial diversion even after a defendant has been arraigned.  Most prosecutors that I have spoken with assumed that the Act only applied prior to arraignment.  That posed a problem, since most people do not seek an attorney’s advice until after their arraignment.  The Court did not even see this as an issue, and it appears that both the prosecution and the defense assumed that arraignment was immaterial, for example:

“Three months after arraignment . . . [the defendant] filed a motion, pursuant to the [VALOR Act], seeking dismissal of all charges should the pretrial diversion program prove successful.  In the alternative, he sought to admit to sufficient facts and have the case continued without a finding.  The prosecutor opposed both dispositions, contending that . . . the judge could not continue a second offense without a finding [and] that, in any event, the pretrial diversion statute did not permit a judge to dismiss a case involving a veteran or active duty member of the military. . . .”  Com. v. Morgan, SJC-12114 (April 18, 2017).

Going forward, defense attorneys should use the VALOR Act even if their client has already been arraigned, and even if the charge is a second or third offense operating under the influence charge.  Defense counsel should also keep in mind that a judge can dismiss some charges outright after their client is treated, even over the objection of the prosecutor.

This is great news for veterans and their lawyers, especially considering the difficulty that many veterans face getting evaluated and treated by the VA in a timely fashion.

Attorney Kevin D. Quinlan

2 South Main Street, Suite 201

P.O. Box 248

Uxbridge, MA  01569

(508) 723-6384


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