Concurrent DOSA Sentences Do Not Render Washington Defendant Ineligible for Another DOSA

In some Washington drug cases, a court may impose alternative sentencing if doing so is in the defendant’s and community’s best interests. Defendants may be eligible for a drug offender sentencing alternative (“DOSA”) if they meet certain conditions under RCW 9.94A.660(1). One of the conditions is that the defendant may not have received a DOSA “more than once in the prior ten years. . .” RCW 9.94A.660(1)(g).   If the high end of the standard sentence range for the offense is greater than one year, the court may order prison-based DOSA, in which the defendant serves half of the standard range sentence in prison and the other half in the community with treatment. RCW 9.94A.662(2). The court may revoke the DOSA sentence if the defendant does not comply with its requirements. RCW 9.94A.660(2).

In a recent case, a defendant appealed his sentence after the sentencing court found him ineligible for a DOSA. In 2016, the defendant received separate DOSA sentences resulting from guilty verdicts in two separate trials, but the sentences were made to run concurrently. He completed the DOSA for those charges in June 2020.

On June 17 of the same year, the defendant was arrested following a reported burglary at a store.  The police did not find the stolen merchandise in the defendant’s vehicle, but did find less than half a gram of methamphetamine in his pocket.

The defendant was charged with and found guilty of second degree burglary, third degree malicious mischief, second degree retail theft with special circumstances, and possession of a controlled substance. He asked for a prison-based DOSA with the convictions running concurrently.

The state argued the defendant was not eligible for a DOSA because he had two prior DOSAs. The defendant argued that the prior DOSA sentences should only count as one DOSA because both were the subject of a single course of treatment. The court stated a DOSA would otherwise be appropriate, but found the defendant was ineligible under the statute. The defendant was given a concurrent sentence in the standard range. He appealed.

The appeals court found the language of the statute was ambiguous and subject to two different reasonable interpretations: that a defendant “receives . . . a DOSA each time they are given a DOSA sentence” and that the defendant “receives . . . a DOSA each time they receive a course of treatment.”

The appeals court found that two concurrent DOSA sentences provided the defendant a single opportunity to receive treatment and rehabilitation.  The appeals court therefore found that concurrent sentences did not make the defendant ineligible for a subsequent DOSA within 10 years. The legislative intent was to allow the defendant to have a second chance for treatment and rehabilitation. The appeals court concluded the defendant was eligible for a DOSA and remanded the case to the trial court for resentencing to determine if the defendant should be given a DOSA.

If you are facing drug charges, you need a knowledgeable Washington criminal defense attorney on your side. Schedule your consultation with Blair & Kim, PLLC, by calling our offices at (206) 622-6562.


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