Deferred Prosecution
RCW 10.05.010.
A Deferred Prosecution (DP) is always a legal option to any person who has not previously done the program. Until 1999, you were eligible to enter and complete the program every 7 years. That, however, was changed to “once in a lifetime and this applied to everyone, even if you did the program prior to 1999 and did not know that your options would be limited. As a result, entry into the program requires careful consideration. In short, a DP is a 5 year program where you trade alcohol/drug treatment or mental health treatment, or a combination of both, and completion thereof, in exchange for a dismissal of your DUI/Physical Control charge along with any other companion charges that may have been filed. Consequently, entry into the program has a huge upside, but also a very large downside if you fail to complete the 5 years successfully.
Specifically the program is an option when you are charged with a misdemeanor or gross misdemeanor you may petition the court to be considered for a deferred prosecution program. The terms are: that you shall not be eligible for a deferred prosecution program unless the court makes specific findings that you have not previously recived a deferred prosecution previously. Furthermore, if you are charged with multiple DUI/Physical Control crimes in a short period period of time, they may be consolidated into on DP, but the Court must make a specific finding that the separate offenses were not more committed more than seven days apart.
What you must tell the Court under oath, through what is called a Petition For Deferred Prosecution, is that charge is the result of or caused by alcoholism, drug addiction, or mental problems for which you are in need of treatment and unless successfully treated the probability of future recurrence is great; You agree to pay the cost of a diagnosis and treatment of the alcohol/drug problem if you are financially able to do so. You, through your lawyer, must also present to the Court a case history and a written alcohol assessment prepared by an approved alcoholism treatment program if the petition alleges alcoholism, an approved drug program if the petition alleges drug addiction, or by an approved mental health center if the petition alleges a mental problem.
Before the Court permits an entry of an order deferring prosecution, you shall be advised of your rights and the fact that you are giving them all up upon acceptance of the program. As a result of this requirement a good lawyer will spend a fair amount of time with you going through not only the rights you are giving up but what that means. As an outline only, the rights you forgo are: The right to testify; The right to a speedy trial; The right to call witnesses to testify; The right to present evidence in your own defense; and The right to a jury trial. Not only do you give up all these rights but at the time you Petition the Court you enter into: A stipulation to the admissibility and sufficiency of ALL of the facts contained in the written police report; An acknowledgment that the statement(s) will be entered and used to support a finding of guilty if (in the future due to a breach of the program) the Court finds cause to revoke the order granting deferred prosecution.
The Court is also required to inform you that if you did not do a DP, and you proceed to trial and is found guilty, you may seek treatment from public and private agencies at any time without regard to whether you are found guilty of the offense charged. At this point the Court must also advise you that a Petition for a DP will NOT be accepted from you if you: Sincerely believe that you are innocent of the charges; You sincerely believe that you do not suffer from alcoholism, drug addiction, or mental problems.
As a result of the above information present to the Court in writing and signed by you, and also orally given on the record in Court before the Judge, the court MUST make specific findings that: You have stipulated to the admissibility and sufficiency of the facts as contained in the written police report; You have acknowledged the admissibility of the stipulated facts in any criminal hearing on the underlying offense/s held at a hearing post-entry of the DP for purposes revoking /the granting deferred prosecution; You have acknowledged and waived the rights to testify, a speedy trial, to call witnesses to testify on your behalf, to present evidence in your, and a jury trial; and that all of this was done knowingly and voluntarily.
Once the above information is presented to the Judge and the Court is satisfied, you will likely be accepted into the program. In ordering you into the program the Judge MUST impose certain conditions and has no discretion. The court shall order that you NOT operate a motor vehicle upon the public roads/highways UNLESS you have a valid operator's license and proof of liability insurance. The court shall also order the installation of an ignition interlock. Some additional terms where the Judge has discretion and to help ensure continued sobriety and reduce the likelihood of reoffending the Court may order reasonable conditions including, but not limited to, attendance at self-help recovery support groups for alcoholism or drugs, complete abstinence from alcohol and all non-prescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution program upon violation of the deferred prosecution order.
As you can see, the entry into this program is a substantial undertaking. While you can navigate this procedure on your own, it is not advisable because not only do you need to fully comprehend the court procedures above, but you also need to know that there are serious collateral consequences associated with a DP.
What Happens If There Is a Breach Of Treatment?
If you fail treatment, or neglect to carry out and fulfill any term or condition of your treatment plan or any term or condition imposed in connection with the installation of an ignition interlock device or other alcohol monitoring device (SCRAM) the treatment agency or the IID or alcohol monitoring agency shall immediately report the breach to the court, the prosecutor, and your attorney, along with a recommendation of what the Court should do as a result or punishment of the breach.
The court shall hold a hearing to determine whether you should be removed from the deferred prosecution program. At the hearing you are entitled to an attorney and to defend yourself against the allegation and at the conclusion of the hearing the Court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution.
If your non-compliance is due to an IID violation the court shall either order you to comply or be removed from deferred prosecution.
What If I Am Convicted Of A New Or Similar Offense?
If you are convicted of a new and similar offense while you were in the deferred prosecution program, you MUST be removed from the program and ultimately that means you will be convicted of the underlying DUI / Physical Control charges. A similar crime for which removal is required is any alcohol related crime. The punishment that must be imposed is set forth by statute and it does not matter how far into the program you have progressed with success.
Once again, there is a myriad of potential consequences and is why experienced DUI legal counsel is needed. A DP is not something you can simply enter into and have a DUI / Physical Control charge magically disappear. The most important criteria of entering the program is to be “done drinking.” If you are not committed to total abstinence and working the treatment program success in the program is unlikely. As a result, you will need to spend a significant period of time consulting with an experienced and DUI focused attorney to make sure a DP is right for you.
