All of us know that if you are facing a criminal blame, you can either appeal guilty or go to trial. With a Driving under the Influence charge in Washington State, there is another way called Deferred Prosecution.

A Deferred Prosecution is like an agreement, nothing more. By entering into the agreement, you are agreeing to do five things. If you do the five things then at the end of the contract, your criminal case is dismissed. While you are under the contract, you have not been convicted of the crime, which means: no jail time and no driver’s license suspension. This is a contract that you can only do once in your lifetime. The five things are required by statute; that means that a Judge must include all five in the contract.

Now the five things:

First, you must get an alcohol evaluation and the evaluation must say that you are an Alcoholic – which means you will have two years of alcohol classes. A lesser evaluation will disqualify you from being granted a Deferred Prosecution.
Second, probation for five years.

There are two kinds of probation:
Active and Inactive. Active probation means that you will likely have a Probation Officer that you will have to report to (at least once) who will act as the enforcement arm of the court; making sure that you do the five things you’re supposed to under the contract. There is generally a fee for active probation. Although Courts vary across the State as to how much, it’s generally around $50 per month.

Inactive probation is where you no longer have a Probation Officer and your only requirement is good behavior, i.e. don’t get accused of any new criminal activity. Inactive probation generally has neither a monthly fee nor a probation officer, but can have a fee for periodic “record checks” to make sure there are no new criminal law violations.

Third, good behavior for five years. This requirement means you can have no new criminal law violations. This does not include (generally) speeding tickets or parking tickets – but anything that places you at risk for jail time will probably violate this requirement.

Fourth, go to a Victims Impact Panel. The VIP is a class where you listen to family members of people who have been killed by drunk drivers. It can vary in length but is typically two hours long.

Fifth, have an Ignition Interlock Device installed in any vehicle you drive. Although there is pending legislation that would allow you to drive an employer’s vehicle without an IID, at the time of this writing it has not been passed into law.

When does a Deferred Prosecution make sense?

There are two times when going through a Deferred Prosecution makes sense: First, if you have had a prior DUI within the last seven years; and Second, if you are accused of other crimes that happened within one week of the DUI charge.
As you can see by looking at the mandatory minimum sentencing requirements (See DUI Penalties), a second DUI within a seven year period carries a significant amount of jail time, e.g. with a high BAC level you would be required to get 45 days of jail followed by 90 days of home detention and a driver’s license loss of 900 days (almost three years). A judge could impose more jail time, but not less. Most people cannot financially survive this type of sentence.

If you are accused of multiple crimes, including DUI, then a Deferred Prosecution can make sense- even for a first time DUI. For example, if you were accused of DUI, Reckless Driving, Possession of Marijuana, etc then the potential penalties could make the Deferred worthwhile since we could include those other crimes within the Deferred Prosecution contract


Should I go through a Deferred Prosecution on my first DUI?

In most cases it does not make sense to use a Deferred Prosecution on a first DUI charge. There are three reasons for this.

First, the penalties for your first DUI are financially survivable. The highest mandatory minimum is two days in jail. See the DUI Penalties above. While this won’t be fun, it will most likely not cause you to loose your job.

Second, entering into a Deferred Prosecution counts as a prior for sentencing on any subsequent DUI convictions. If you are like most of the clients I have met with over the years, right now you’re thinking that you will never get another DUI as long as you live; but did you plan on getting this one? In most cases, it is better to save your Deferred Prosecution (since you can only do it once per lifetime) for a second DUI charge that you hope never comes. Think of it as an insurance policy that you hope you never need.

Third, a Deferred Prosecution is a real opportunity for someone with a significant alcohol or Drug problem because it can delete the jail time and license suspension associated with a DUI conviction. However, some people are tempted to sign up for a Deferred without fully realizing that the Deferred will require two years of alcohol classes.

People run into problems in two ways: 1) A non-alcoholic defendant tempted by the good parts of a Deferred will resent having to go to the two years of alcohol classes. When the choice is presented to “blow off” one of the classes, they may since they didn’t really need the classes anyway. However, once you start missing classes, you can get expelled – which means you are now in violation of your Deferred Prosecution’s requirement for treatment. 2) If you are really an alcoholic, you need to face the possibility that you may Relapse and get a second DUI. If that happens, a Deferred Prosecution can really save the day.

What should I watch out for with a Deferred Prosecution?

The most common problem encountered with a Deferred Prosecution is running out of money. The cost of treatment varies, but is always expensive. Some health insurance companies will cover the expense – so check with yours. There can be government help for people addicted to alcohol or drugs.

Once the Judge signs the Order for Deferred Prosecution, you will be bound by the contract’s terms. This means that even if the sole reason for getting kicked out of treatment is lack of financial ability to pay for it, you will still be in breach of the contract.

The way to avoid this problem is to look at the costs involved before you enter into the Deferred Prosecution.

What happens if I don’t comply with the contract?

If there is an allegation that you have breached one (or more) of the five requirements, the Court will schedule a hearing to determine what action to take. If you get convicted of a new DUI, the Court will have no choice but to revoke the Deferred Prosecution. An Attorney may not be able to stop the Court from revoking your Deferred but may be able to help with the sentence you receive. If you breach your contract in some other way, the Court will have discretion on what action to take. If this happens, call an attorney immediately. They can help you come up with a plan to save your Deferred Prosecution.

If the Court revokes your Deferred Prosecution, then the Judge will read the police reports submitted when you first entered the Deferred and probably find you guilty. There will be no jury trial and no witnesses. The Court will make its decision solely based on the police reports. In other words, if you breach the contract you will be found guilty of the underlying DUI. This means that the mandatory minimum probation times and driver’s license loss will start. It also means that the Court will determine the amount of fines and jail time to be imposed.

Conclusion

Deferred Prosecutions offer a fantastic opportunity for someone with a severe alcohol or Drug Addiction problem to get the help they need; while avoiding the draconian penalties associated with a DUI conviction. If you recognize you are an Addict and are ready to make a change then the Deferred Prosecution program can be a godsend. If you are not an Alcoholic or a Drug addict, then don’t waste your one chance at this program; you may well regret it.