Deferred Prosecution

The DUI Deferred Prosecution is a program that allows a person suffering from alcoholism, drug addiction, or a mental health problem to petition the court to enter an intensive treatment program in lieu of being prosecuted. The program was initiated in 1975 for individuals who suffer from alcoholism, drug addiction, or mental health conditions and who would prefer to undergo a voluntary two year treatment program as an alternative to facing mandatory minimum penalties of jail, fines, and license suspensions. Successful completion of the Deferred Prosecution will result in avoidance of a DUI conviction and may avoid a driver’s license suspension by the Department of Licensing.

In order to enter a Deferred Prosecution, a defendant must obtain an evaluation from a state-certified treatment provider which indicates the defendant is an alcoholic or drug addict and without at least two years of treatment is likely to re-offend. Entering into a deferred will result in the individual giving upon most of their constitutional rights. The statute requires that an individual admit their guilt and addiction, give up their right to a trial and appeal. Consequently, if a person violates the terms of the deferred prosecution the judge will simply read the police report and entering a finding of guilt and sentence you on the original charge of DUI. If a person is accepted into the Deferred Prosecution program, their case is removed from the criminal trial process and “continued” for five years. If the defendant successfully completes the program, the case is dismissed and the defendant does not have to do any jail time and has no further supervision by the court.

The statute outlining Deferred Prosecution programs (RCW 10.05) requires a minimum two year treatment plan that includes:

1. Total abstinence from alcohol or non-prescribed drugs for five years
2. At least two sober support group meetings (Usually Alcoholics Anonymous, Narcotics Anonymous, or Celebrate Recovery, etc.) per week for two years
3. Weekly intensive counseling sessions for at least the first six months of the treatment program
4. Monthly counseling sessions for the remaining 18 months of the treatment program

RCW 10.05

A Deferred Prosecution treatment program has many benefits, but is an expensive and significant commitment that should not be taken unless a defendant has an admitted alcohol or drug addiction and a genuine desire to never drink or use drugs again. If a Deferred Prosecution is revoked and a defendant is sentenced to jail, the court will likely still order the defendant to complete an intensive treatment program upon release from jail. A Deferred Prosecution can be revoked for any number of violation of many conditions. Examples of violations that can result in revocation are:

• Consuming any alcohol or non-prescribed drugs
• Committing a new criminal law violation
• Driving without a valid license or without proof of proper insurance
• Driving without an ignition interlock device when required
• Having a positive breath test on an ignition interlock device
• Missing any sober support meetings
• Missing any probation meetings
• Missing any treatment counseling sessions
• Missing any court dates
• Not paying all fines on time and in full
• Not complying with any other condition set by probation or the court

The following are a list of some of the pro’s and con’s outlined by the Washington State Defense Association (WDA). This list is an excellent outline and should be considered at length before making a decision to enter into a deferred prosecution.

Advantages and Disadvantages of Deferred Prosecution

Pros – Reasons to Apply

1. Addresses your alcoholism or addiction: If you are convicted of DUI and your treatment evaluator says you have a problem, the court will order you to do the treatment recommended by that counselor anyway.
2. Avoids jail: Jail is stayed (continued) and completely avoided three years after successful completion of the treatment program.
3. Avoids fines: The court can impose up to a $5,000 fine for a DUI conviction. If you have prior DUI convictions, your mandatory minimum fine may be as much as $2,821, plus probation costs. A Deferred Prosecution has a $150 filing fee, $43 court cost, $125 breath test fee, and $1200 in probation costs.
4. Avoids trial: Trial is stayed (continued) for five years. At the end of the five years, the case is dismissed.
5. Avoids driver’s license suspensions: A defendant’s license suspension (between 90 days and 4 years) will be stayed and not imposed after successful completion in five years.
6. Avoids major traffic conviction: If you receive three major traffic convictions in a five year period, the Department of Licensing (DOL) declares you a “habitual traffic offender” and revokes your license for seven years in addition to any other suspensions.
7. Immigration issues: Some nations (such as Canada) consider DUI to be the equivalent of a felony offense and refuse to allow people with DUI convictions to cross their border without special allowances by their consular office. A Deferred Prosecution can avoid being turned away from the border when travelling.
8. Avoids a conviction: Upon successful completion of a Deferred Prosecution, it is not considered a conviction.

Cons – Reasons Not to Apply

1. It is a difficult program: It takes a huge time commitment for counseling, probation, and sober support meetings (usually Alcoholics Anonymous or Narcotics Anonymous). Total abstinence for five years is not easy for a hard drinker or user.
2. You can only request it once in a lifetime: If a person has ever petitioned for a Deferred Prosecution, then he or she is ineligible to apply for one again. A person may wish to “save” their Deferred Prosecution petition for later charges with higher penalties. For example, a first DUI conviction carries mandatory minimum jail time of one or two days in jail. A second DUI conviction has a mandatory minimum sentence between 90 days and 135 days. A person who uses a Deferred Prosecution on a first DUI cannot petition the court for the second DUI offense.
3. You must admit you are an alcoholic or drug addict: The law makes the program available only to self-declared alcoholics, addicts, or people who suffer from serious mental health problems and not to defendants who merely want to avoid jail. Once you make a public declaration that you are an alcoholic or drug addict, that label will follow you forever in the justice system. Successfully completing treatment simply means you are a “recovering” alcoholic or addict.
4. Requires an ignition interlock device and ignition interlock license (IID): The DOL will require you to have an ignition interlock (breath test device) on any vehicle you drive for two years. The ignition interlock will prevent you from starting a vehicle if you have any alcohol in your system. If you blow into the ignition interlock with alcohol in your system, the ignition interlock provider may report the violation to probation or the court. The court may sanction you to community service hours or revoke your Deferred Prosecution and sentence you to jail for consuming alcohol. Menthol cigarettes or chewing gum with xylitol or sorbitol could yield positive results on the device and should be avoided.
5. High probation fees: A Deferred Prosecution requires five years of probation and probation fees of $1,200. Judges often impose only two years of probation for DUI convictions and charge $480.
6. Substantial counseling costs: Deferred prosecution treatment programs cost several thousands of dollars, whereas someone with a “No Significant Problem” evaluation on a first offense DUI might only need to attend one session of Alcohol & Drug Information School, which costs approximately $100-$200.
7. You do NOT need to enter a Deferred Prosecution to keep your privilege to drive: Someone convicted of DUI can apply for an Ignition Interlock License with the Department of Licensing (DOL) immediately and can drive with the device without ever losing the privilege to drive so long as they comply with the DOL’s restrictions.
8. Still counts as a prior offense: Even if you successfully complete the Deferred Prosecution program and your DUI is dismissed, it will still count as a prior offense and you could still face more severe sentencing if you are charged with DUI in the future.
9. You must admit you are guilty: The court will not accept a Deferred Prosecution from a defendant who sincerely believes he or she is innocent of the charges. You must stipulate that the facts in the report are sufficient to find you guilty. If the Deferred Prosecution is revoked, the judge will simply read the police report and will enter a guilty finding, which you can’t appeal.
10. Substantial time commitment: Someone entering a Deferred Prosecution is agreeing to abstain from all alcohol or non-prescribed drugs for five years, but is also admitting that he or she should never drink or use drugs ever again. It is NOT “an easy way to avoid jail and keep your license.”