Deferred Prosecution Program

Those who are arrested for DUI in Washington are entitled to use the deferred prosecution program once in a lifetime.  The program's requirements are outlined in RCW 10.05, and in short, to qualify for a deferred prosecution a person must admit in open court that their criminal behavior was caused by:  1) alcoholism; 2) drug addiction; or 3) mental problem.  This admission must be validated by a certified alcohol/drug dependency counselor or licensed mental health professionals report, which is filed with the court. 

The person seeking a deferred prosecution must also be willing to admit in open court that they "understand that the court will not accept a petition for deferred prosecution from a person who sincerely believes that he or she is innocent of the crime(s) charged or does not suffer from alcoholism, drug addiction, or mental problems". 

The advantage to a deferred prosecution is that if a person successfully completes all of the court's requirements, they will not be incarcerated and will have their case dismissed.  

The disadvantages are:

1) the program is quite lengthy and difficult (five year length of supervision, with at least two years of outpatient treatment);

2)  the treatment cost can be quite expensive ranging from $2500 - $5000 or more;

3) The person must remain completely abstinent from drugs/alcohol during the five year time period;

4) failure to abide by the program requirements will result in revocation, conviction, and incarceration;

5) the use of a deferred prosecution for a first or second offence precludes its use for a later offense for which the penalties might be much more severe. 

6) even a successful deferred prosecution counts as a "prior offense" should someone receive another DUI offense at a later date, and will cause greater penalties.

7) you have to admit you are an alcoholic, drug addict, or have mental problems in a public court document.  This could cause problems later with employment, life insurance, or other areas of your life.

Entering into a deferred prosecution is usually not the best decision for a person facing DUI charges.  This decision requires substantial analysis of the pros and cons for a particular person and in relation to that particular set of circumstances.  Unfortunately many lawyers and defendants see a deferred prosecution as a quick and easy way to resolve their case, which leads to later disappointment.  We regularly consult with clients who were advised to seek a deferred prosecution on a first offense DUI by their attorney or public defender.  We almost never suggest this course of action, as it usually puts the client in a worse position than the alternative. 

If your attorney suggests a deferred prosecution in your first offense DUI case, you should immediately seek a second opinion from an independent DUI attorney, as this will almost always not be the best way to resolve your case. In second or third offense DUI cases it may make more sense to enter into a deferred prosecution, since the penalties for conviction are so much more severe, but we regularly negotiate 2nd offense DUI cases to better resolutions than those offered by a deferred prosecution.