Court Can’t Revoke Washington DOSA for Violations Before Community Custody Begins

In certain non-violent, drug-related cases, offenders may be eligible for a “drug offender sentencing alternative,” frequently referred to as “DOSA.”  While serving the community custody portion of a Washington DOSAd, an offender must comply with the conditions imposed by the court.  A defendant recently challenged the revocation of his DOSA before the term of his DOSA community custody started.

According to the appeals court’s unpublished opinion, the defendant was convicted of unlawful possession of a controlled substance with intent to deliver and unlawful possession of ammonia with intent to manufacture methamphetamine in April 2017.  The trial court imposed a DOSA sentence of 55 months of confinement and an equal amount of time in community custody.  Conditions included participation in drug evaluation and treatment during community custody and prohibition of consumption or unlawful possession of controlled substances.  The defendant was also required to obey all laws.

Community custody for the DOSA was scheduled to begin in February 2021.  The defendant was serving community custody for other cases when he was first released from prison, so he was out of confinement for a period before his DOSA community custody began.

The state petitioned to revoke the defendant’s DOSA in August 2020 because of his guilty pleas to new charges that same month.  The state also alleged the defendant consumed and unlawfully possessed controlled substances.  The defendant argued that the term for his DOSA community custody had not yet started when the new offenses occurred.  The trial court revoked the DOSA

The defendant appealed and argued the court did not have the statutory authority to revoke the DOSA when he was not yet serving the community custody part of his DOSA.

Pursuant to RCW 9.94A.660(7)(a), a court may bring an offender sentenced to a DOSA back to court to evaluate his progress in treatment or determine if he has violated the conditions. Subsection (7)(c) allows the court to order the offender to serve a term of total confinement in the standard range if, “during the period of community custody,” the offender violates the DOSA’s conditions or requirements or fails “to make satisfactory progress in treatment.”

The appeals court noted that the statute gives the court authority to bring the offender back into court at any time, but it may only revoke the DOSA based on a violation of conditions “during the period of community custody.” The appeals court focused on the statute’s use of the word “the.” The definite article, the appeals court concluded, indicated the trial court’s authority to revoke a DOSA is limited to the period when the offender is serving community custody related to that DOSA. The statute does not give a superior court authority to revoke a DOSA while the offender is serving community custody for unrelated cases.

The appeals court reversed the revocation of the defendant’s DOSA.  The appeals court noted, however, that it did not consider whether the defendant was required to comply with the conditions of his DOSA or whether the Department of Corrections had the authority to sanction him for failing to do so.

If you are facing drug charges or revocation of a DOSA, an experienced Washington criminal defense attorney can help.  Contact Blair & Kim, PLLC, at (206) 622-6562 to schedule your consultation.


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