Washington Court Denies DOSA Sentence for Multiple Violations of No Contact Order

Washington’s Drug Offender Sentencing Alternative (“DOSA”) program provides substance use disorder treatment and community treatment to people with a substance use disorder who have committed certain crimes. A DOSA sentence reduces or eliminates the time a person must spend in jail or prison if they complete the treatment and comply with the supervision requirements. A defendant recently challenged a court’s denial of his request of a DOSA sentence.

He was charged with three felony counts of violating a court order, with the state alleging he knowingly violated a no contact order on three occasions and that he had at least two prior convictions for violating a court order.

At sentencing, the defendant asked for a prison-based Drug Offender Sentencing Alternative (“DOSA”), pursuant to RCW 9.94A.660, pointing to testimony from the alleged victim in which she responded “yes” to a question asking if the defendant used methamphetamine.  The court described this testimony as inadmissible and prejudicial.  The trial court noted that the defendant was facing three cases in a different county and had two prior convictions for violating court orders.

The defendant apologized and stated he had a drug problem when he addressed the court at his sentencing.  The trial court stated that it did not see evidence that a drug issue contributed to the offenses and that it did not find any drug problem contributed to the offense or would contribute to future offenses.  The court stated it did not find that a DOSA sentence would benefit the community and sentenced the defendant to 60 months of confinement.

The defendant appealed, arguing the trial court abused its discretion in refusing to consider a DOSA sentence based on a lack of evidence the offenses resulted from a substance abuse issue. The defendant argued that eligibility for DOSA applies to the offender and not the offense.  He argued there had been evidence of his drug use at trial, so it was error for the trial court not to consider it.

The state argued, however, that the trial court had acted within its discretion to determine that the defendant’s multiple convictions for violating court orders were evidence there was an issue of something else.  The state also argued the court did not have to grant a request for a DOSA sentence even when the offender has a substance abuse disorder.

A defendant who is given a prison-based DOSA serves part of the sentence in confinement, receiving substance use disorder treatment.  The rest of the sentence is served in the community under supervised treatment.  RCW 9.94A.662. This alternative sentence may be revoked if the offender fails to comply with the terms.  RCW 9.94!.662(4).

To qualify for a DOSA, the offender must meet the statutory criteria. Washington courts have held, however, that an offender does not automatically receive a DOSA sentence just because they are eligible.  The sentencing court has the discretion to determine if a DOSA sentence is appropriate.  When a court considers imposing a DOSA, it considers whether the offender has a substance use disorder, “[w]hether the substance use disorder is such that there is a probability that criminal behavior will occur in the future,” whether there is effective treatment available, and whether the alternative will benefit the offender and the community.  RCW 9.94A.660(5)(a)-(d).

A trial court’s determination on whether to grant a DOSA is generally not reviewable, but a “categorical refusal to consider” it is an abuse of discretion.  Additionally, basing the decision on an impermissible reason may also be an abuse of discretion.

The appeals court concluded that the trial court had not categorically refused to consider the DOSA.  The trial court had considered the defendant’s other pending cases and his prior convictions in addition to the current violations.  The appeals court noted it was reasonable for the trial court to consider the defendant’s criminal history, pending charges, and likelihood that the substance use disorder would contribute to future criminal violations.

The trial court had concluded the defendant was unwilling to follow court orders and that substance use disorder treatment was not likely to deter similar behavior in the future.  The appeals court found the trial court had considered the request and acted within its discretion to reasonably determine a DOSA sentence was not appropriate.

The appeals court affirmed the defendant’s conviction and sentence.

If you are facing criminal charges related to violation of a protection order, a knowledgeable Washington criminal defense attorney can advise you as to whether you may qualify for a DOSA sentence.  Contact Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.


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