DUI Washington State Deferred Prosecution

What is a deferred prosecution?

A deferred prosecution is available only once in a person’s lifetime. It will allow a person to get a dismissal of a DUI or similar charge if he or she qualifies and completes the program successfully within the five-year probationary period. However, a deferred prosecution has some downsides. First, you will have to state under oath that you are an alcoholic or a drug addict, or that you have mental problems for which you need treatment. You must state that you are likely to have ongoing problems if you do not receive treatment. Further, you must agree to pay for treatment if you are able to do so (there will also be other court and ignition interlock costs to pay). You may or may not be required to start treatment before requesting a deferred prosecution, and you generally must request to enter the program at least a week before your trial. To enter the program, you must waive many of your rights, including your right to a speedy trial, to subpoena witnesses to testify at your trial, to present evidence to support a defense, and the right to a trial by a jury of your peers. Finally, you must agree that the police report is admissible evidence against you and that it is in fact sufficient for a jury to find you guilty of the charge beyond a reasonable doubt.

Should I request a deferred prosecution?

The answer to this question depends on the facts of your particular case as well as your unique circumstances. In some cases, some other good reason for dismissal may exist, and entering a deferred prosecution would result in the loss of the right to pursue a viable defense. Also, some of the benefits of a deferred prosecution, such as relief from the harsh consequences of a DUI conviction, may also be available by using other strategies, such as negotiating your charges to other, less serious ones, or requesting that the judge suspend particular punishments pending drug or alcohol treatment. The former option may remove the DUI penalties from the equation and the latter allows you to exercise your right to have a jury, after considering all the evidence, determine whether you are actually guilty of the crime for which you are charged. Also, because a deferred prosecution is only available once in a lifetime, it may not be wise to use it too early if there is a possibility that you might be charged with DUI again. You should keep in mind that the potential consequences of a DUI arrest are more severe, and more difficult to avoid, if you have prior arrests for DUI (including arrests that resulted in a conviction for a lesser charge or a dismissal following completion of a deferred prosecution).  In general, the more serious the mandatory consequences you face are, the less likely you will be able to get relief from negotiations, and, unless the prosecution has a weak case, the more likely it is that a deferred prosecution might be worth considering.

Will my license still be revoked if I refused the breath test?

The DOL will stay a license suspension while a deferred prosecution program is in process if you did not refuse the breath test. For a refusal, to beat the DOL revocation, if you do choose to enter a DP, you must prevail at an administrative hearing or you must enter the DP, and have the Court report it to DOL before the administrative revocation takes effect.

How much will treatment cost?

The cost of treatment will vary, depending on the treatment provider. It may or may not be covered by insurance. You must complete an intensive two-year program from an approved provider.

How can my deferred prosecution be revoked?

A deferred prosecution may be revoked by the court for many reasons, such as if you later have a  criminal incident before the five years have elapsed, if you do not honor your two-year treatment  obligations to the letter, or if you violate any of the terms of your deferred prosecution agreement. The court will consider the information surrounding the violation and determine whether or not to revoke the deferred prosecution. If it does so, the court will, in general, admit the original police report (which you already stipulated is admissible and factually sufficient) and summarily find you guilty of the original charge.

Do you need an attorney to enter a deferred prosecution program?

It is wise to have a knowledgeable and experienced DUI attorney assist you.  The attorney can review the evidence against you to be sure that defenses are not overlooked which could make your case winnable.  You would probably not know about these defenses unless an attorney has thoroughly evaluated your case. Entering a deferred prosecution is a complex decision, and you might regret it later if you rushed to the conclusion that it was right for you when in fact it was not.

While completing a deferred prosecution, is the DUI on my criminal record?

Unfortunately, your record will always show that you have had a DUI arrest. On the court's Washington State criminal history database, until the deferred is finished it will show up with a code of "DP" in the disposition column. When the deferred is successfully completed it will show a code of "D" for dismissed.

If I can prove I am innocent but I already entered deferred prosecution, can I go back and withdraw my request to enter the program?

It will be an uphill climb to get the decision undone and, perhaps, impossible. In the "petition" for the deferred prosecution form prepared by the court or by your lawyer, it probably says, "I do not believe I am innocent of this crime" or words to that effect--you agreed to that when you made the petition for the deferred. You also gave up your right to a trial, to contest the evidence against you, and so forth.

If you have new evidence, it won’t help if it was evidence that could and should have been discovered before you entered the deferred, and the chances of undoing the deferred become slim to none.

However, if you entered the deferred without the assistance of a lawyer, or the lawyer who represented you was "ineffective" (didn't do the things that a reasonable, effective lawyer would have done in your case) the court might be willing to enter an order nunc pro tunc that reverses the deferred. But you will need a very persuasive attorney to get you to that point.

Will I be able to use marijuana while in the deferred prosecution program if I have a medical marijuana card?

The program may require that you abstain from marijuana, unless you can find a treatment provider who will incorporate the marijuana as an approved medication. There may be a few providers out there who will incorporate legal marijuana use into the treatment program.