Deferred Prosecutions in Washington State

deferred prosecutions

Everyone knows that if you are facing a criminal charge, you can either plead guilty or go to trial. With a driving under the influence charge in Washington state, there is another option: deferred prosecution.

A deferred prosecution is a contract, nothing more. By entering into the contract, you agree to do five things. If you do all five, at the end of the contract, your criminal case is dismissed. While under contract, you have not been convicted of the crime, which means: no jail time or driver’s license suspension. This is a contract that you can only do once in your life. All five things are required by law; that means that a judge has to include all five in the contract.

Now the five things:

First, you must get an alcohol evaluation and the evaluation must say that you are an alcoholic, which means that you will have two years of alcohol classes. A minor evaluation will disqualify you from being granted Deferred Processing.

Second, probation for five years. There are two types of probation: active and inactive. Active probation means that you will likely have a probation officer that you will need to inform (at least once) that he will act as the enforcement arm of the court; making sure to do the five things he is supposed to do under the contract. There is usually a fee charged for active parole. Although courts vary statewide on the amount, it is generally around $50 per month.

Inactive probation is when you no longer have a probation officer and your only requirement is good behavior, meaning not being charged with any new criminal activity. Inactive probation generally does not have a monthly fee or a parole officer, but may have a fee for periodic “record checks” to make sure there are no new criminal law violations.

Third, good behavior for five years. This requirement means that you cannot have new criminal law violations. This does not (usually) include speeding tickets or parking tickets, but anything that puts you at risk of going to jail will likely violate this requirement.

Fourth, go to a Victim Impact Panel. The VIP is a class where you hear from relatives of people who have been killed by drunk drivers. It can vary in length, but typically lasts two hours.

Fifth, have an ignition interlock device installed in any driving vehicle. Although there is pending legislation that would allow you to drive an employer’s vehicle without an IID, it has not been signed into law at the time of writing.

When does deferred prosecution make sense?

There are two times when it makes sense to go through deferred prosecution: first, if you have had a prior DUI in the last seven years; and Second, if you are charged with other crimes that occurred within a week of the DUI charge.

As you can see by looking at the mandatory minimum sentencing requirements (See DUI Penalties [http://www.cahoonlawoffice.com/duipenalties.htm]), a second DUI within a seven-year period carries a significant amount of jail time, for example, with a high BAC, you will be required to get 45 days in jail followed by 90 days of house arrest and the loss of driver’s license for 900 days (almost three years). A judge might impose more jail time, but not less. Most people cannot financially survive this type of judgment.

If you are charged with multiple crimes, including DUI, then a deferred prosecution may make sense, even for a first time DUI. For example, if you were charged with DUI, reckless driving, marijuana possession, etc., the potential penalties could make the deferral worthwhile, since we could include those other crimes within the deferred prosecution contract.

Do I have to go through deferred prosecution on my first DUI?

In most cases, it does not make sense to use deferred prosecution on a first DUI charge. There are three reasons for this.

First, the penalties for your first DUI are financially feasible. The highest mandatory minimum is two days in jail. See DUI Penalties above. While this won’t be fun, it most likely won’t cause you to lose your job.

Second, entering deferred prosecution counts as earlier toward the sentencing of any subsequent DUI convictions. If you are like most of the clients I have met over the years, you are thinking right now that you will never have another DUI as long as you live; but did you plan on getting this one? In most cases, it’s best to save your deferred prosecution (since you can only do it once in a lifetime) for a second DUI charge that you hope never comes. Think of it like an insurance policy that you hope you never need.

Third, deferred prosecution is a real opportunity for someone with a significant alcohol or drug problem because it can eliminate jail time and license suspension associated with a DUI conviction. However, some people are tempted to sign up for a Deferred without realizing that the Deferred will require two years of alcohol classes.

People run into problems in two ways:

1) A non-alcoholic defendant tempted by the good parts of a Deferred will resent having to go to the two years of alcohol classes. When presented with the option to “delete” one of the classes, they might do so, since they didn’t really need the classes anyway. However, once he starts cutting school, he can be expelled, which means he is now in violation of the deferred prosecution treatment requirement of him.

2) If you really are an alcoholic, you have to face the possibility that you could relapse and get a second DUI. If that happens, a deferred processing can really save the day.

What should I consider with a deferred prosecution?

The most common problem encountered with deferred processing is running out of money. The cost of treatment varies, but it is always expensive. Some health insurance companies will cover the costs, so check with yours. There may be government help for people addicted to alcohol or drugs.

Once the judge signs the deferred prosecution order, you will be bound by the terms of the contract. This means that even if the only reason you were kicked out of treatment is a lack of financial ability to pay for it, you will still be in breach of contract.

The way to avoid this problem is to look at the costs involved before going into Deferred Prosecution.

What happens if I do not comply with the contract?

If there is an allegation that you have failed one (or more) of the five requirements, the court will schedule a hearing to determine what action to take. If you are convicted of a new DUI, the court will have no choice but to revoke the deferred prosecution. A lawyer may not be able to stop the court from reversing your stay, but they can help you with the award you receive. If you breach your contract in any other way, the Court will have discretion as to what action to take. If this happens, call an attorney immediately. They can help you come up with a plan to save your deferred prosecution.

If the court reverses your deferred prosecution, then the judge will read the police reports filed when you first entered deferred prosecution and will likely find you guilty. There will be no jury trial or witnesses. The Court will make its decision based solely on the police reports. In other words, if he breaches the contract, he will be found guilty of the underlying DUI. This means that the minimum mandatory test times and the loss of the driver’s license will begin. It also means that the Court will determine the amount of fines and jail time to be imposed.

Conclusion

Deferred prosecutions offer a fantastic opportunity for someone with a serious alcohol or drug addiction problem to get the help they need; while avoiding the draconian penalties associated with a DUI conviction. If you recognize that you are an addict and are ready to make a change, then the deferred prosecution program can be a blessing. If you are not addicted or just not ready to cut drugs or alcohol out of your life, then don’t waste your only chance on this program; well you may regret it.