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Deferred Prosecution

Deferred Prosecution – Is it right for you?
Deferred prosecution is a program that allows a person suffering from an alcohol problem (alcoholism), a drug problem (addiction), or a mental health problem to seek permission of the court to go through an intensive treatment program in lieu of being prosecuted. Successful completion of the treatment program, and continued lawful conduct will result in dismissal of the charge and may avoid a suspension of driver's license by the Department of Licensing.

Despite the best efforts of MADD and other similar interest groups, an enlightened Washington legislature has recognized that some people run afoul of the law not because they are criminals, but because they can't help it. The lawmakers have recognized that the most effective way to keep the alcoholic from driving drunk is to get him or her to stop drinking. From this inspiration was born the deferred prosecution statute.

The law allows a defendant to request the court for deferral or postponement of their case for five years while he or she seeks treatment for their disease. If the request is granted the advantages are clear: defendants retain their license, do not go to jail, keep the DUI off their record for most purposes, are not required to pay for high risk insurance, avoid being fined, and, except for cases of blood or breath refusal, avoid administrative license suspensions. Most importantly, they are given an opportunity to sober up and regain control of their lives. Washington is unique in this statutory alternative.

Deferred prosecution is not limited to alcoholics, but may be granted where the defendant is suffering from drug addiction or mental health problems. It is not uncommon to find people suffering from symptoms of all three illnesses.

In order to qualify for deferred prosecution, the defendant must obtain an evaluation from a state approved treatment agency. The agency will conduct an assessment and if it concludes that the criminal conduct for which deferred prosecution is sought occurred as a result of alcoholism, drug addiction or mental health problems and that the defendant is amenable to treatment, meaning they are willing to be treated, the person is eligible for deferred prosecution as long as they have never been granted a deferred prosecution before.

In DUI cases, of course, the most frequent reason a deferred prosecution is sought is because of a drinking problem, and the required two-year treatment program is quite rigorous and occurs in three phases. The first phase is typically three or four nights a week for the first two or three months (seventy -two hours of treatment in the first 90 days) or can involve an inpatient program. Phase two entails weekly counseling for six months. Phase three requires counseling once a month for the balance of the two-year program. Additionally, two Alcoholics Anonymous or other self-help meetings per week are required for the full two years at a minimum. Usually the defendant is also placed on supervised probation, which means that he or she may be required to meet on a regular basis with a probation officer and to pay for those services. Additionally, an ignition interlock device (IID) will be required for at least one year if the deferred prosecution is based on alcoholism.

If a blood or breath test is taken, a deferred prosecution will stay, or postpone most administrative license suspensions. However, in the case of a test refusal, the administrative action is unaffected, although one can get an occupational license after a set period of time.

Three years after the completion of the treatment program, the charge is dismissed. What the defendant is required to do during the three years after treatment ends and the case is dismissed, other than not re-offend, is up to the judge. Typically, continued attendance at AA is all that is required, along with law abiding behavior.

Entry into a deferred prosecution program should not be undertaken lightly. It is a rigorous program, and the court usually requires strict compliance. While it is a wonderful way to deal with both a significant health problem and a serious legal problem at the same time, recovery is not easy. It requires strong commitment and the consequences of failing to successfully complete the program are usually severe. Particular care must be used in determining whether a juvenile should enter a deferred prosecution because of the difficulties of diagnosis at younger ages, and because of the particular roadblocks to successful completion facing younger people.
Revocation of a deferred prosecution invariably results in a conviction for the DUI, and any other criminal charge that may have accompanied it. The penalties imposed may be harsher than if the defendant had merely pleaded guilty in the first place, and will almost always require completion of the treatment program originally undertaken as a part of the deferred prosecution.

Furthermore, a person is only entitled to one deferred prosecution in a lifetime. So if a person is not totally committed to recovery, entering into a deferred prosecution could be very foolhardy.

Finally, a deferred prosecution counts as a prior offense if the person is convicted for a subsequent DUI within seven years of the DUI for which deferred prosecution was sought, and will be used to substantially enhance the mandatory minimum penalties to be imposed on the subsequent DUI.

Successful completion of the deferred prosecution, however, has significant rewards, both personal and legal, and should be examined in any case in which alcohol, drug or mental health problems may exist. It is recommended that an alcohol assessment from a qualified and appropriate agency be obtained in every case well before trial.

Cowan Kirk Kattenhorn

Cowan Kirk is known throughout Washington and the nation for representing all of its clients with commitment, creativity and compassion. We recognize how devastating a DUI charge can be, particularly when our clients learn how incredibly tough Washington's DUI laws have become, even for a first-time offender.

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If you need a DUI defense attorney in Seattle, Bellevue, or King County, contact us today to find out why respect for our clients, a passion for justice, and our commitment to winning have earned each of us the highest honor a member of the bar can receive from our colleagues – their referrals.