In some circumstances, a person charged with a Washington misdemeanor or gross misdemeanor may petition for deferred prosecution. Deferred prosecution can be an alternative to punishment for individuals who would benefit from treatment. The individual generally must cooperate with and complete the treatment program. A Washington appeals court recently considered whether a trial court could “extend” a deferred prosecution order.
The defendant was charged with driving under the influence (“DUI”) in December 2013. She petitioned for a deferred prosecution and the court accepted the petition and approved the treatment plan for her alcohol use disorder.
Multiple probation officers notified the court the defendant violated the conditions of the order between 2015 and 2021.
She moved to extend the supervision and maintain deferred prosecution in February 2022. The court denied her motion and convicted her of the DUI.
The defendant appealed and the superior court reversed the judgment, stating that deferred prosecution may not be dismissed before five years pursuant to RCW 10.05.120. RCW 10.05.120 provides that the court shall dismiss the charges three years after the court receives proof the treatment program has been completed and after proof the individual has complied with the conditions after completing treatment, but not before five years after the deferred prosecution order was entered pursuant to a petition under RCW 10.05.020(1).
The state requested discretionary review by the appeals court.
According to the appeals court, the parties identified the issue as whether the defendant’s deferred prosecution had a definite term and whether the district court could extend the term. The appeals court pointed out that chapter 10.05 RCW does not use the word “term” as used by the parties or address if the court may “extend” a deferred prosecution term.
The appeals court instead looked to the plain language of the three-step process set forth in RCW 10,05.090. First, if a petitioner fails to meet a condition of the treatment plan, the agency must report the breach to the court, prosecutor, and petitioner or their attorney. According to the appeals court, the probation officers gave such notice.
The second step is for the court to hold a hearing to decide if the petitioner should be removed from the program. The appeals court noted the court had held such hearings in this case.
The third step requires the court to “either order that the petitioner continue on the treatment plan or be removed from deferred prosecution.” RCW 10.05.090. The district court, however, stated it was “not aware of any provision in any statute” that would allow its jurisdiction to continue past five years.
The appeals court determined the district court abused its discretion by not exercising its discretion to either continue the defendant’s treatment or remove her from the program. The appeals court reversed the order denying the defendant’s motion, vacated the judgment and sentence, and remanded the case to the district court for a hearing.
Deferred prosecution can be a good option for defendants who qualify and who can meet the conditions. If you are facing DUI or other misdemeanor criminal charges, a knowledgeable Washington criminal defense attorney can advise you on whether deferred prosecution may be right for you and represent you. Contact Blair & Kim, PLLC at (206) 622-6562 for a consultation.