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Deferred Prosecution

If you are charged with DUI in Washington State and are diagnosed as drug or alcohol dependent (or suffering from mental illness), you may be able to petition the court for a deferred prosecution. While deferred prosecution comes with stringent conditions and a five-year probation, if you successfully complete the five years, your charge(s) will be dismissed.

Petition — Eligibility (RCW 10.05.010)

In 1999, eligibility for a deferred prosecution was changed from every seven years to once in a lifetime. This change was applied to everyone, including those who opted for a deferred prosecution prior to 1999 with the expectation they could enter the program again after seven years if needed. As a result, entry into the program requires careful consideration.

Deferred Prosecution Eligibility

To be eligible for a deferred prosecution, you must meet certain legal requirements. Those requirements are as follows:

Things to Consider Before Entering into a Deferred Prosecution

A deferred prosecution 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 with a 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 focused DUI attorney to make sure a deferred prosecution is right for you.

The court may terminate the deferred prosecution program upon violation any of the terms and conditions of the 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 deferred prosecution.

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 are in the deferred prosecution program, you WILL be removed from the program and convicted of the original DUI / Physical Control infraction, as well as the new charge. The punishment that must be imposed is set forth by statute and does not matter how far into the program you have progressed with success.

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