Deferred prosecution in Wisconsin is an agreement with the district attorney that pauses your criminal case while you complete a set of conditions, and if you finish them, the charges are dismissed. Wisconsin doesn’t run these programs through a single statute. Several laws authorize them for specific situations, and prosecutors have broad discretion to offer them in other cases. The details change based on the county, the offense, and the type of agreement you’re offered, and some of those differences carry long-term consequences that aren’t obvious at the signing table.
How It Works in Practice
A deferred prosecution agreement, often shortened to DPA, is a written contract between you and the district attorney. You agree to meet certain conditions over a set period. The prosecutor agrees to hold the case in abeyance and dismiss the charges if you comply. No defendant has a right to one; the offer is entirely at the DA’s discretion.
The most detailed authorizing statute is Wisconsin Statute 971.37, which governs deferred prosecution for domestic abuse and child sexual abuse cases. It requires the agreement to be in writing and signed by both the district attorney and the defendant, requires monthly written compliance reports, and provides that successful completion results in dismissal with prejudice, meaning the charges can’t be refiled. That statute also explicitly preserves the use of deferred prosecution for offenses outside its scope, stating it “does not preclude use of deferred prosecution agreements for any alleged violations not subject to this section.”1Wisconsin State Legislature. Wisconsin Code 971.37 – Deferred Prosecution Programs; Domestic Abuse and Child Sexual Abuse
A separate statute, Wisconsin Statute 971.39, applies in counties with populations under 100,000. The Department of Corrections monitors the agreement, and the defendant must admit in writing to all elements of the crime charged. Charges are dismissed with prejudice upon successful completion.2Wisconsin State Legislature. Wisconsin Code 971.39 – Deferred Prosecution Programs
Wisconsin courts have treated these as enforceable contracts. In State v. Daley, the Court of Appeals held that both sides must follow the agreement’s terms and that prosecutors and defendants can negotiate tailored conditions as long as any statutory minimums are included.3Justia. State of Wisconsin v Sean M Daley (2006 WI App 81)
Deferred Prosecution vs. Deferred Conviction
This is the distinction that catches people off guard, and it matters.
In a true deferred prosecution, the charges are typically dismissed upfront without prejudice. You don’t enter a guilty plea. The case sits on hold while you complete your conditions. If you fail, the prosecutor has to refile and start over.4Wisconsin Department of Justice. Post-charge Diversion and Deferred Prosecution Program
A deferred conviction works differently. You enter a guilty or no-contest plea, but the court holds the plea open and delays entering a judgment of conviction. Complete the program and the plea is withdrawn and the charges dismissed. Fail, and the court can enter the conviction based on the plea you already gave, without a trial. Under 971.39, the written admission to all elements of the offense functions similarly.2Wisconsin State Legislature. Wisconsin Code 971.39 – Deferred Prosecution Programs
The practical difference is risk. A deferred conviction leaves you much less room if things go wrong, because your plea is already on file. A true deferred prosecution gives you more protection. Which type you’re offered depends on the county, the prosecutor, and the offense. Before signing anything, confirm in writing which type the agreement is.
Who Can Get One
Eligibility comes down to the offense, your record, and the prosecutor’s judgment. DPAs are most commonly offered for non-violent offenses like drug possession, retail theft, criminal damage to property, and worthless check charges. First-time offenders and people with minimal criminal histories are the strongest candidates. Serious violent crimes and repeat felonies rarely qualify.
One category is completely off the table. Wisconsin Statute 967.055 prohibits prosecutors from placing anyone in a deferred prosecution program if the person is accused of or charged with an OWI offense. If someone with prior OWI convictions picks up a different, non-OWI charge, the DA can still offer a DPA on that separate offense and may require participation in monitoring programs as a condition.5Legal Information Institute. Wisconsin Administrative Code Jus 19.07 – Conditions of Deferred Prosecution
Simple drug possession cases are among the most common DPAs, especially when the defendant agrees to substance abuse treatment. Property crimes often qualify too, though aggravating factors like a weapon or a large financial loss can disqualify someone. Juvenile offenders generally have broader access, consistent with Wisconsin’s emphasis on rehabilitation for younger people. Steady employment, community ties, and willingness to engage in treatment all help your case, and an experienced defense attorney can sometimes negotiate eligibility even when the initial offer is traditional prosecution.
What You Have to Do
Every DPA has conditions tailored to the case, but some requirements show up across the board. Under 971.37, the agreement must be written and signed, you waive your right to a speedy trial, the statute of limitations is tolled for the duration, and you file monthly written compliance reports with the DA’s office.1Wisconsin State Legislature. Wisconsin Code 971.37 – Deferred Prosecution Programs; Domestic Abuse and Child Sexual Abuse
Beyond those baseline items, conditions commonly include:
- Treatment programs: substance abuse counseling, mental health treatment, or anger management, depending on the offense.
- Restitution to victims in theft or property damage cases.
- Community service. Wisconsin Statute 971.38 allows the DA to require work for a public agency or nonprofit, with hours proportional to the seriousness of the alleged offense.2Wisconsin State Legislature. Wisconsin Code 971.39 – Deferred Prosecution Programs
- Supervision and testing: regular check-ins, drug and alcohol testing for substance-related offenses, and employment verification.
- No new criminal activity. A new arrest during the agreement can end it.
Agreements typically run anywhere from six months to two years, depending on the severity of the offense and the conditions involved. Some counties charge administrative fees for entering the program, and supervision costs add up over time. These out-of-pocket costs vary by county, so ask about the full financial picture before you sign.
Travel While You’re in the Program
If your DPA includes supervision, leaving the state may be restricted. Under the Interstate Compact for Adult Offender Supervision, people under deferred sentences can transfer supervision to another state, but only if a plea of guilt has been entered and the arrangement qualifies as a deferred sentence rather than a pretrial release.6Interstate Commission for Adult Offender Supervision. Rule 2.106 – Supervised Individuals Subject to Deferred Sentences For a true deferred prosecution without a plea, interstate transfer may not be available at all. Get written permission from your supervising agency before any out-of-state travel.
What Happens If You Violate
Consequences depend on how serious the breach is and which statute governs. A late monthly report might draw a warning or modified conditions. Repeated noncompliance or a new arrest is different.
Under 971.37, either party can terminate the agreement with written notice before the completion period ends.1Wisconsin State Legislature. Wisconsin Code 971.37 – Deferred Prosecution Programs; Domestic Abuse and Child Sexual Abuse Under 971.39, the district attorney can resume prosecution upon the defendant’s failure to meet any condition.2Wisconsin State Legislature. Wisconsin Code 971.39 – Deferred Prosecution Programs If the agreement is revoked, the case resumes and you face prosecution on the original charges.
There’s one important protection. Under 971.39, if a DPA is revoked and the case goes to trial, your willingness to enter the agreement cannot be used as evidence against you.2Wisconsin State Legislature. Wisconsin Code 971.39 – Deferred Prosecution Programs Without that safeguard, agreeing to a DPA could be spun as an implied admission of guilt. Note that this protection is about the agreement itself. If you entered a plea as part of a deferred conviction, that plea is a different matter and already sits in the file.
What It Means for Your Record
Successful completion means the charges are dismissed and no conviction appears on your record. On employment applications, licensing paperwork, and housing screenings that ask about convictions, you can truthfully say you were not convicted. That’s the headline benefit.
The less obvious issue is that the original charge may still be visible. Wisconsin’s Circuit Court Access Program, known as CCAP, is a public online database of court records, and the fact that charges were filed will appear there even after dismissal. A recent change in Wisconsin administrative rules allows criminal cases ending in dismissal or acquittal to be removed from CCAP two years after the date of disposition. Before that window closes, anyone running a background check can see the charge and its resolution. Dismissed charges also remain on file with the Department of Justice’s Crime Information Bureau, which shows up on DOJ background checks used by certain employers and licensing agencies.
Some employers ask about arrests and charges, not just convictions. Being ready to explain that you completed a deferred prosecution program and the charges were dismissed is worth thinking through before the question comes up.
Expungement Is a Different Process
Expungement applies to convictions, not dismissed charges. Wisconsin law allows it when the defendant was under 25 at the time of the offense and the maximum possible sentence is six years or less. The court must order expungement at sentencing, not after the fact, and the record is expunged only on successful completion of the sentence. Certain Class H and I felonies are excluded, particularly violent offenses and cases involving a prior felony conviction.7Wisconsin State Legislature. Wisconsin Code 973.015 – Special Disposition If your DPA results in dismissal, expungement is not the right mechanism, because there’s no conviction to expunge. The CCAP two-year removal rule is currently the primary path to reducing public visibility of a dismissed charge.
If You’re Not a U.S. Citizen
This is where deferred prosecution gets genuinely dangerous, and where the most serious mistakes happen. Federal immigration law defines “conviction” differently than Wisconsin courts do. Under 8 U.S.C. ยง 1101(a)(48), a conviction for immigration purposes exists when a person enters a guilty or no-contest plea and a court orders any form of punishment, penalty, or restraint on liberty.8Office of the Law Revision Counsel. 8 USC 1101 – Definitions
A true deferred prosecution with no plea generally does not trigger this definition. A deferred conviction where you plead guilty or no contest and then complete conditions for dismissal can still count as a conviction for immigration purposes, even after the state court dismisses the charges. If a plea was entered and any supervision, community service, or other restraint was imposed, USCIS and ICE may treat it as a conviction that triggers deportation, inadmissibility, or bars to relief.
The U.S. Supreme Court held in Padilla v. Kentucky that defense attorneys must advise non-citizen clients about the immigration consequences of a guilty plea.9Justia. Padilla v Kentucky, 559 US 356 (2010) If you’re not a citizen and a DPA is on the table, the type matters enormously. Push for a true deferred prosecution without any plea rather than a deferred conviction, and have an immigration attorney review the agreement before you sign anything.