Deferred Prosecutions Under RCW 10.05

Deferred Prosecutions Under RCW 10.05

A Deferred Prosecution may enable one accused of a DUI to avoid a conviction and jail time. However, a Deferred Prosecution requires one to comply with a variety of conditions. A Deferred Prosecution can also take a substantial amount of time, cooperation, and it may be costly.

Nevertheless, with proper planning, a Deferred Prosecution can result in a client successfully avoiding conviction and becoming rehabilitated.

Basic Deferred Prosecutions

A basic Deferred Prosecution (hereinafter "DP") can result in a dismissal of DUI charges pending against a defendant. A basic DP consists of a two year treatment program. Three years after the court receives proof of successful completion of the two-year treatment program and proof that the defendant has complied with the conditions imposed by the court, the court will dismiss the DUI charges against the defendant. A total of at least five years must pass following the court's order of DP before the court will dismiss the DUI charges against the defendant.1

Eligibility for DP:

A person charged with a DUI who desires to seek a deferred prosecution must file a petition with the court at least seven days before the date set for trial.2 A defendant seeking a deferred prosecution will not be eligible for a DP if the defendant has already entered into a DP program on one or more occasions in the past.3 If a defendant fails to complete a DP program, he or she will not get another shot at it--the defendant only gets "one bite at the apple." State v. Hahn, 83 Wn.App 825 (1996). A defendant can only have one DP in their entire lifetime. City of Spokane v. Whitehead, 128 Wn.App 145 (2005).

Additionally, the court must make specific findings before a defendant will be eligible for a DP.4 The defendant must allege under oath that the DUI for which they are charged is the result of or caused by alcoholism, drug addiction, or mental health problems for which the defendant is in need of treatment and unless treated, the probability of future recurrence is great.5 The defendant must also state under oath that he or she agrees to pay the cost of diagnosis and treatment of the alleged problem(s) if financially able to do so.6 The petition for DP must also contain a case history and written assessment prepared by an approved alcoholism treatment program.7 A court will not accept a petition for DP from a defendant who: (i) sincerely believes that he or she is innocent of the charges; (ii) sincerely believes that he or she does not, in fact, suffer from alcoholism, drug addiction, or mental problems.8

Thereafter, the court must make specific findings that: (a) the defendant has stipulated to the admissibility and sufficiency of the facts contained in the written police report; (b) the defendant has acknowledged the admissibility of stipulated facts in any criminal hearing concerning the DUI held subsequent to revocation of the order granting deferred prosecution; (c) the defendant has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; and (d) the defendant's statements were made knowingly and voluntarily.9

Nevertheless, the entry of a DP is not a conviction.10

Treatment Requirements:

Ultimately, a defendant should be enrolled in treatment before a petition for a DP is brought before the court. The defendant should seek to comply with as many of the required conditions as possible before bringing a petition for DP before the court.

The treatment center utilized by the defendant must have an approved alcoholism treatment program.11 The treatment center must initially conduct an investigation and examination to determine whether the defendant suffers from the problem described; whether the problem is such that if not treated there is a probability that similar misconduct will occur in the future, whether extensive or long term treatment is required, whether effective treatment for the defendant's problem are available, and whether the person is amenable to treatment.12

After conducting the initial examination described above, the treatment center will then prepare a written report for the court which states its findings and recommendations.13 If the treatment center's findings and recommendations support treatment, the treatment center will recommend treatment plan that sets forth: (a) the type of treatment; (b) nature of treatment; (c) length of treatment (d) a time schedule; and (e) the approximate cost of the treatment.14

This report will then be filed with the court and a copy will be given to the defendant, defendant's counsel, and should also be given to the prosecutor.15 Thereafter, the treatment center will provide the court with a statement every three months for the first year and every six months for the second year regarding (a) the defendant's cooperation with treatment and (b) the defendant's progress or failure in treatment.16

The deferred prosecution program for alcoholism will be for a two year period.17 The program will specifically require the following: (1) total abstinence from alcohol and all other nonprescribed mind-altering drugs; (2) participation in an intensive inpatient or outpatient program recommended by the approved treatment center; (3) participation in a minimum of two meetings per week of an alcoholism self-help recovery support group, as determined by the approved treatment center, for the duration of the treatment program; (4) participation in an alcoholism self-help recovery support group, as determined by the approved treatment center, from the date of court approval of the plan to enter into intensive treatment; (5) no less than weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment; (6) no less than monthly outpatient contact, group or individual, for the remainder of the two year deferred prosecution period.18 Also, the approved treatment center may decide to include the use of prescribed drugs.19

The defendant will be responsible for the cost of treatment, which can range from $2,500.00 to $4,000.00. However, this may not be the case if the defendant is determined to be an indigent.

Deferred Prosecutions and Licensing

As mentioned above, the entry of a DP is not a conviction. However, licensing ramifications will arise as a result of a DP. In order to avoid an administrative suspension, the defendant must deliver an "Intent to Seek Deferred Prosecution" form to the DOL within 60 days of the date of the violation. This will effectively put a "stay" on any administrative suspension for 150 days after the charges are filed or two years after the date of arrest, whichever is sooner.

Once the DOL is notified that the defendant has entered into a DP program, the DOL will issue the petitioner a probationary license and the defendant's driver's license will be on probationary status for five years.20

However, this does not mean that the defendant cannot drive. The court will order the defendant to not operate a motor vehicle without a valid operator's license and proof of liability insurance.21 In order to drive the defendant will be required to install an ignition interlock device on all motor vehicles operated by the defendant.22 The ignition interlock device will be calibrated to prevent the motor vehicle from being started when the breath sample provided has an alcohol concentration of .025 or more.23

The court will establish the period of time for which the interlock use will be required.24 However, the period of time of the restriction will be no less than the following:

(a) One year for a person who has not previously been required to use an ignition interlock device;
(b) Five years for a person who has previously been required to use an ignition interlock device for one year;
(c) Ten years for a person who has previously been required to use an ignition interlock device for five years.25

The use of an ignition interlock device will be required until the DOL receives a declaration from the defendant's ignition interlock device vender, in a form provided or approved by the department, certifying that none of the following incidents occurred in the four consecutive months prior to the date of release:

(a) An attempt to start the vehicle with a breath alcohol concentration of .04 or more;
(b) Failure to take or pass any required retest; or
(c) Failure of the person to appear at the ignition interlock device vendor when required for maintenance, repair, calibration, monitoring, inspection, or replacement of the device.26

Other Required Conditions

A court may order the defendant to pay restitution and other costs. Additionally, the court may impose other conditions including, but not limited to, attendance at a self-help recovery support group for alcoholism or drugs, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior.27

Revocation of Deferred Prosecution

If a defendant is subsequently convicted of a similar offense while in a DP program, the court will automatically revoke the defendant's DP upon receiving notice of such a conviction and will enter a judgment against the defendant resulting in a conviction.28 Therefore, a criminal conviction that concerns operating a motor vehicle will likely result in a revocation of a DP, but a crime unrelated to driving, alcohol, or drug use will likely not result in a revocation of a DP.

Additionally, the court may terminate the deferred prosecution upon a defendant's violation of the deferred prosecution order.29 This may include a "breach of treatment plan."30 If a defendant in a DP program fails or neglects to carry out and fulfill any term or condition of the defendant's treatment plan or any term or condition imposed in connection with the installation of an ignition interlock device, the treatment center or ignition interlock device vender will immediately report such a breach to the court and prosecutor.31

Under such circumstances, the court will hold a hearing to determine whether the defendant should be removed from the DP program. At the hearing, the court will receive evidence of the defendant's alleged failure to comply with the treatment plan or device installation. However, the court will also receive evidence from the defendant. The court will then determine whether the defendant should be permitted to continue the DP program or be removed from the DP program and be convicted of DUI.32

Oftentimes defense attorneys can be successful in persuading the court to permit the defendant to continue the DP program by presenting evidence of the defendant's progress while in the DP program, or by suggesting alternatives to revocation including imposition of an additional victim's impact panel or community service. However, unfortunately a court will not always be persuaded to rule in favor of a defendant.

Conclusion

Overall, a DP can be a good option for a defendant facing a DUI charge. The process can avoid jail time, electronic home monitoring, a criminal conviction that will be on the defendant's record permanently, and other difficulties associated with a conviction. A DP program can also provide the client with an opportunity to improve, become rehabilitated, and possibly overcome addiction. However, a DP program requires the defendant to comply with numerous conditions, it can be costly, time consuming, and difficult. The defendant must be prepared to comply with all conditions of the DP at all times.

Ultimately, the decision to enter into a DP program must be made by the defendant after a careful consideration of what a DP program entails.

1 RCW 10.05.120
2 RCW 10.05.010(1)
3 RCW 10.05.010(2)
4 Id.
5 RCW 10.05.020(1)
6 Id.
7 Id.
8 RCW 10.05.020(3)
9 RCW 10.05.020(4)
10 RCW 10.05.060
11 RCW 10.05.020(1)
12 RCW 10.05.040
13 RCW 10.05.050(1).
14 Id.
15 RCW 10.05.050(3)
16 Id.
17 RCW 10.05.150
18 Id.
19 Id.
20 RCW 10.05.060 But, in case of a refusal of a breath or blood test, the defendant's license will be subject to an automatic administrative suspension regardless of whether the defendant enters into a DP.
21 RCW 10.05.140
22 RCW 10.05.060; RCW 46.20.720(2)
23 RCW 46.20.720(3)
24 RCW 46.20.720(1)
25 RCW 46.20.720(3)
26 RCW 46.20.720(4)
27 RCW 10.05.140
28 RCW 10.05.100
29 RCW 10.05.140
30 RCW 10.05.090
31RCW 10.05.090
32 Id.