THE FIRST OFFENDER ACT—Ark. Code Ann. §§16-93-301—16-
93-303 (Act 346 of 1975)

The First Offender Act is a rare and special way to enter a plea of guilty or no contest and then after a period of probation, if you apply properly, the judge dismisses and expunges the charges against you.

Just because you were (or are) a first time offender does not mean that you plead under the First Offender Act. Not every first offender qualifies, and even when they do qualify, the judge or prosecutor may not let you get this special treatment. You are very lucky if your lawyer is able to convince a prosecutor during plea negotiations to let you plea into the First Offender Act.

How Many Times Can You Use the First Offender Act?

The Arkansas First Offender Act can only be used one time.

Can You Plead Not Guilty and Still Qualify Under the First Offender Act?

No, the Act is applicable where the disposition (result) is a plea of guilty or nolo contendere (no contest).

Can You Go to Trial and Still Get the Judge to Sentence You Under the First Offender Act?

The Arkansas First Offender Act cannot be utilized in cases where there was a bench or jury trial. The First Offender Act (or Act 346 as many attorneys and judges refer to it) can be used for felonies and misdemeanors.

Which Criminal Charges Are Ineligible for the First Offender Act Plea Deal?

Sex offenses with minor victims are ineligible to be expunged under this act, if the Defendant plead into the First Offender Act program AFTER July 30th, 1999. If the Defendant plead in BEFORE July 30th, 1999 then they are eligible to expunge the sex offense.

See: §§16-93-303, 16-93-305 and McBride v. State, 2007: http://caselaw.findlaw.com/ar-court-of-appeals/1490069.html

Some violent felony offenders, as is the case with some sex offenders, are not going to be eligible for expungement for they could not be sentenced pursuant to any Act authorizing expungement. For example, offenders convicted of murder in the first degree or aggravated robbery would never be eligible for expungement because they have to go to prison. If you spend time in prison, you are ineligible to get an expungement under this act. There are plenty of other statutes, like A.C.A. 5-73-119 (Possession of a Handgun on School Property) that also specifically disqualify eligibility to plead under the First Offender Act. Please just call us and we can look up if your charge can be expunged.

Those charged with Driving While Intoxicated are not allowed to plea into the First Offender Act. If you are charged with DWI there are only two options: 1) Plead Guilty or 2) Go To Trial and get found Not Guilty or Guilty. See: https://law.justia.com/codes/arkansas/2010/title-5/subtitle-6/chapter-65/subchapter-1/5-65-108/

This does not apply to those under the age of 21 who are charged with DUI, the prosecutor and judge MAY allow these people to use the first offender act, but the judge and prosecutor do not have to offer this.

What Happens After My First Offender Probation is Up?

If you complied with probation (which lasts at least one year, up to $3,500 in fines not including restitution), after you apply the right way the judge has to dismiss and expunge your charges after finding you NOT GUILTY.

Am I Considered a Felon During Probation?

Yes, for the purposes of firearm possession, habitual offender, criminal history scores and sentencing, and impeachment when being questioned under oath.

If you are currently on probation, an attorney may be able to terminate the probation early.

Am I Considered a Felon After the Charges are Dismissed and Expunged?

Upon expungement of the record for a felony offense the offender is not considered as having a felony conviction except for purposes of habitual offender, criminal history scores and sentencing, and impeachment when being questioned under oath. See: A.R.E. Rule 609. §16-93-303.

Act 1491 of 2009 provided that those receiving a discharge and dismissal were not prohibited from possessing a firearm under the felon in possession of firearm statute Arkansas Code Annotated § 5-73-103(b)(2).

How Do I Know if I Plead Under the Arkansas First Offender Act?

The Court will have a record and somewhere in the documents there should be references to “Act 346” and “the First Offender Act.”

If I Have Previously Plead Into Another State’s First Offender Program, May I Use the Arkansas First Offender Act for My Arkansas Charges?

Yes. The Arkansas Supreme Court held in Montoya v. State, 2010 Ark. 419 that a first offender type of deferred plea in New Mexico did not constitute a prior use of Act 346 of 1975. Thus the previous conviction could not serve to disqualify a person from utilizing the provisions of Act 346 in Arkansas for a subsequent offense.

How Do I File the Application to Dismiss My Charges Under the First Offender Act?

You have to file a petition that states you’ve complied with probation. If you qualify, the judge HAS to grant your petition. Call one of our Van Buren, Fayetteville, or Fort Smith Arkansas Criminal Defense Attorneys at (479) 782-1125 for a FREE consultation to see if you qualify to dismiss the charges. I wish there was an easy way to explain this to you so you could do it yourself, but my advice is to hire an attorney and let us deal with it for you.