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 charge of driving under the influence 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 have 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 you will have two years of alcohol classes. A lesser evaluation will disqualify you from being granted Deferred Processing.

Second, probation for five years. There are two types of parole: active and inactive. Active probation means that you will probably have a probation officer to report to (at least once) that he will be acting as the enforcement arm of the court; making sure to do the five things he’s supposed to do under the contract. There is usually a fee for active probation. 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, that is, not being charged with any new criminal activity. Inactive probation generally does not have a monthly fee or 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 (generally) 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 family members 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 on none driving vehicle. Although there is pending legislation that would allow you to drive an employer’s vehicle without an IID, at the time of this writing it has not become law.

When does deferred prosecution make sense?

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

As you can see by looking at the mandatory minimum sentencing requirements (See Penalties for DUI [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 level, 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 could impose more jail time, but not less. Most people cannot financially survive this type of award.

If you are charged with multiple crimes, including DUI, then 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 might make deferred prosecution worthwhile, as we could include those other crimes under the deferred prosecution contract.

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

In most cases, it makes no 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 make you lose your job.

Second, entering deferred prosecution counts as prior to 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 to get this one? In most cases, it’s best to save your deferred prosecution (since you only get to 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 the jail time and license suspension associated with a DUI conviction. However, some people are tempted to sign up for Deferred without realizing that Deferred will require two years of alcohol classes.

People encounter problems in two ways:

1) A nonalcoholic defendant tempted by the good parts of a Deferred will resent having to go to two years of alcohol classes. When presented with the option to “delete” one of the classes, they may do so, since they didn’t really need the classes anyway. However, once he starts skipping classes, he can be expelled, which means that he is now violating his deferred prosecution treatment requirement.

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

What should I keep in mind 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 the contract.

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

What happens if I don’t fulfill the contract?

If there is an allegation that you have failed to meet 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 reverse the deferred prosecution. An attorney 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 mandatory minimum testing 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’re not addicted or just not ready to cut drugs or alcohol out of your life, then don’t waste your one chance at this program; you may well regret it.