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:

  • You cannot ever have been granted deferred prosecution before in your lifetime. If you are charged with multiple DUI/Physical Control crimes not more than seven days apart, they may be consolidated into one deferred prosecution.
  • You must be diagnosed as alcohol or drug dependent, or with a mental illness.
  • You must enroll in an alcohol, drug, or mental health treatment program and successfully comply with all recommended treatments.

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.

  • You may only enter one deferred prosecution in your life. Deferred prosecution is not necessarily recommended for first offenses.
  • You give up the opportunity to fight your case — essentially, you admit to guilt. You give up:
    • 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.
    If you are found to be in violation of the terms of deferred prosecution, a judge would simply read the written police report and find you guilty of the original DUI charge, thus revoking the deferred prosecution.
  • A deferred prosecution, even if successfully completed and charges dismissed, is still considered a prior offense if you were to receive another DUI charge.
  • You must tell the court under oath, thereby making a legal record, that you have a drug or alcohol dependence, or mental health issues, which can have lasting consequences.
  • You must completely abstain from alcohol and all non-prescribed, mind-altering drugs during the five years of probation. You would also be subject to periodic urinalysis or breath analysis.
  • Treatment programs are time consuming and difficult to comply with if you do not seriously believe you suffer from alcoholism, drug addiction, or mental problems, and you may be setting yourself up for failure.
  • You agree to pay the cost of the original diagnosis of a chemical dependency or mental health issue, and are responsible for paying for the cost of treatment programs and probation.
  • A valid driver's license and proof of liability insurance are required to operate a motor vehicle upon public roads and highways, and you will be required to install an ignition interlock device for a pre-determined amount of time.
  • 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.