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Washington State Deferred Prosecution

A deferred prosecution is a court-approved treatment program that, if successfully completed, results in the dismissal of the underlying DUI charge.
You may only have one deferred prosecution in your lifetime. For this reason, a deferred prosecution is generally not the best way to handle a first offense DUI, which carries minimal jail time compared to a second or subsequent DUI.

Entry into a deferred prosecution keeps you out of jail; therefore, it is best “saved,” or to be used, when facing significant jail time on second or third DUI offense.
It also prevents the court from imposing a fine for the offense, allowing the court to impose only court costs and specific assessments required by law.

If you took the breath test and are not accused of “refusing” the breath or blood test, your license suspension or revocation will be “stayed,” or put on hold.
Upon completion of the 5-year deferred prosecution, it will be rescinded. In the meantime, you will be granted a probationary license, provided you are otherwise not prohibited from driving for some other reason.

A deferred prosecution for DUI (whether alcohol or drug-related) does not avoid a requirement that the person drive only vehicles equipped with an ignition interlock device.

Deferred Prosecution Quick Facts

  • Only one Deferred Prosecution allowed in a lifetime
  • Five-year program with two years of treatment and three years of probation
  • Five-year program with two years of treatment and three years of probation
  • You admit to the court that you have a substance abuse problem

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How to qualify for a Deferred Prosecution

  1. First  you should confer with an attorney experienced in DUI defense, who is very familiar with the requirements of the program.
  2. You will have to obtain a specific type of assessment from a state-certified substance abuse disorder professional.
  3. Your attorney will draft a petition for a deferred prosecution and review it with you before filed with the court along with your assessment.
  4. You must waive your right to a jury trial for the DUI as well as other trial rights. Admitting that the written police reports are admissible and sufficient to support a finding of guilty if the court finds reason to “revoke” the deferred prosecution

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What treatment is required?

A deferred prosecution consists of two years of treatment in a court-approved and state-accredited treatment program, followed by three years of sobriety and law-abiding behavior.

Proof of attendance and compliance (or non-compliance) with the treatment program must be sent to the court by the treating agency on schedule as the court requires.

You must complete a course of intensive out-patient (IOP) treatment as recommended by the treatment agency. You may be required to attend as many as three treatment sessions per week in the first year of the program.
In the alternative, the person may undergo inpatient treatment at a state-approved facility.

The remainder of the first year consists of weekly attendance at treatment.
In the second year, this requirement is reduced to once a month.
Throughout, the person must also attend two alcoholics anonymous (or equivalent) meetings per week.

When does the DUI get dismissed?

A hearing is held at the end of the two-year treatment program to ensure that all requirements were completed.

Three years after the two-year treatment program has been completed, the court will dismiss the underlying DUI (or other charge) provided that the person has committed no “similar offenses,” has maintained sobriety, and has complied with any additional requirements imposed by the court when granting the deferred prosecution.

For example, some courts require AA (or equivalent) attendance for the entire five-year period.

What is a "revocation" of a Deferred Prosecution?

Revocation Hearing

When a deferred prosecution is revoked, you will lose the benefits of the deferred prosecution. You will be convicted of the underlying crime, must serve all required jail time and pay all fines and assessments related to the crime committed, without a jury trial.

Instead of a jury trial, at a hearing, the court will review the prosecution’s evidence as to why the person should be removed from the program and hear any defense arguments to the contrary.

If the court orders the deferred prosecution to be revoked, the court will read the police report of the incident, including any breath or blood test results, and may, based upon that evidence alone, find the you guilty of the offense and impose sentence.

Common Reasons for a Revocation

  • Commission of a “similar” offense. Although not defined, a “similar” offense is generally interpreted to mean another DUI, a reduction of a DUI to a reckless or negligent driving or reckless endangerment, and a negligent driving not reduced from a DUI. However, there are many other offenses that involve alcohol or drugs that could also result in revocation, such as boating under the influence, and vehicular assault or homicide which involved alcohol, marijuana or any drug. For all the above offenses committed while under the influence, it matters not whether it involved a prescribed drug. 
  • Failure to maintain total abstinence from alcohol, marijuana, or non-prescribed drugs. 
  • Failure to maintain law abiding behavior (typically, this does not include minor traffic infractions).
  • Failure to regularly attend treatment sessions.
  • Failure to pass urinalysis, breath or other testing (by showing consumption of alcohol, marijuana or non-prescribed drugs).
  • Failure to maintain contact with the probation department or appear in court as required if on “bench” probation by the court.

Is a Deferred Prosecution the best option for me?

After reviewing the prosecution’s evidence and considering any defenses that may overcome that evidence, a seasoned DUI lawyer may determine that the case may best be resolved without the use of a deferred prosecution. 

Because the opportunity for a deferred prosecution is a once-in-a-lifetime event, it should only be used when the person has no viable alternative resolution, or when the person feels sure that without the supervision of the court and probation, they will continue to use alcohol or other substances to their detriment, thereby increasing the likelihood of committing a new offense.

If you are considering a deferred prosecution, we can help you decide whether that course of action is right for you and if so, navigate you through the process. Call us now for a free consultation.

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Disclaimer: The legal information presented on this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney client relationship. Any results set forth herein are based upon the facts of that particular case and do not represent a promise or guarantee.  This web site is not intended to solicit clients for matters outside of the state of Washington.