The Truth About Deferred Prosecutions

No jail time, no license suspension and no conviction. Sounds great! If it were really that simple, it would be a great deal. However, for most people charged with a DUI in Washington State a Deferred Prosecution is not the best solution. Here’s why:

What is a Deferred Prosecution?

A Deferred Prosecution is essentially a contractual agreement with the court. You agree to do complete certain conditions and the court agrees to postpone prosecution of the case for up to five years. If you successfully complete all of the requirements the court will dismiss the case at the end of the deferred period and no conviction is ever entered. The requirements of a Deferred Prosecution agreement are outlined in the Revised Code of Washington Chapter 10.05 and include the following:

You must have a problem with Alcoholism, Substance Abuse or Mental Health Issues
You only get one chance at a Deferred Prosecution in a lifetime
The charge must be a Misdemeanor or Gross Misdemeanor
Treatment for alcoholism shall be for a two-year period and shall include, but not be limited to, the following requirements:

Total abstinence from alcohol and all other nonprescribed mind-altering drugs;
Participation in an intensive inpatient or intensive outpatient program in a state-approved alcoholism treatment program;
Participation in a minimum of two meetings per week of an alcoholism self-help recovery support group, as determined by the assessing agency, for the duration of the treatment program;
Participation in an alcoholism self-help recovery support group, as determined by the assessing agency, from the date of court approval of the plan to entry into intensive treatment;
Not less than weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment;
Not less than monthly outpatient contact, group or individual, for the remainder of the two-year deferred prosecution period;
The decision to include the use of prescribed drugs, including disulfiram, as a condition of treatment shall be reserved to the treating facility and the petitioner’s physician;
All treatment within the purview of this section shall occur within or be approved by a state-approved alcoholism treatment program as described in chapter 70.96A RCW;
Signature of the petitioner agreeing to the terms and conditions of the treatment program.

If you are convicted of a “similar offense” the court is required to revoke the agreement.
If you violate any of the other terms the court has the discretion to revoke (how many chances you get depends a lot on which court you are in and what violations you have committed).
You must agree to pay for treatment and the costs of administering the Deferred Prosecution

License Suspension

One of the main selling points for a Deferred Prosecution is avoiding a license suspension. In Washington, a BAC of .08 or above, or a refusal to take the test, will result in the Dept. of Licensing taking action against your license. You can delay this by submitting the “Intent to Seek a Deferred Prosecution” form to DOL. If you enter the Deferred Prosecution in a timely manner your license is never suspended. In reality there is little difference between “suspension” and a deferral. When your license is suspended for a DUI you can still drive. All you need to do is install a “go-n-blow” in your car, buy SR-22 insurance, get an Interlock Ignition License and away you go. However, a condition of a Deferred Prosecution is that you have the same device in your car for 2 years. Either way, you can still drive and you still have an Interlock Ignition Device in your car.

Jail Time

The other big selling point of a Deferred Prosecution is no jail time. While this is true two years of required treatment hardly seems like a fair trade for avoiding a day or two in jail. Your day in jail will be over before you know it, while you will still be going to, and paying for, treatment at least two years after you have entered your Deferred Prosecution. The law does allow for a first time DUI defender to complete 15 days of EHM in lieu of the mandatory one day (30 days if it is a BAC refusal or the BAC above .15), if the judge approves.

Alcohol Treatment

This is where the biggest difference lies. Whether you’re convicted of DUI (or reduced charge) or you enter a Deferred Prosecution, you will be required to get a substance abuse evaluation and complete any treatment ordered. Most people that have a single DUI are diagnosed “No Significant Problem” and simple have to complete an 8-hour Alcohol and Drug Information Class. On the other hand, for a Deferred Prosecution you must agree that you are an alcoholic, but for alcoholism you would not have committed the offense and that you need treatment to address the problem. The minimum treatment that an agency can recommend for a Deferred Prosecution is outlined by law. This includes at least 72 hours in the first six weeks and a minimum of two years total treatment. During this time you must comply with all requirements of the treatment which usually includes no consumption of alcohol while enrolled in treatment.

Set-Up For Failure?

A Deferred Prosecution is often a set up for failure. In order to enter a Deferred Prosecution you must agree that there are sufficient facts to find you guilty of DUI. If you violate any of the conditions of a Deferred Prosecution the court has the power to find you guilty and enter sentence. These include driving on a suspended license, failure to complete treatment (drinking, unable to pay, ….), a new allegation (conviction not necessary) and more. While I have seen many people successfully complete a Deferred Prosecution, I have seen just as many fail. Often people have made it through treatment and beyond before getting revoked (too many times over four years into the Deferral). It sucks to pay for two years of treatment and a number of other expenses only to find yourself convicted of DUI (with jail time, more fines and five more years of probation). Better to spend the money on a good DUI attorney and fight for a reduced charge or dismissal.

First Offenses vs. Multiple DUI Convictions

The advice above is geared towards the first time offender. If you you are on your second or subsequent DUI there are other factors to consider: (1) you are less likely to be offerred a plea bargain; (2) you will be facing significantly more jail time and longer treatment; and (3) you might have a problem that needs to be addressed.