RCW 10.05 Deferred Prosecution

Under RCW 10.05, a person may enter into a special program called a deferred prosecution. This is a separate thing from a deferred sentence, which will not be discussed in this post. The RCW 10.05 deferred prosecution is essentially an opportunity to do drug, alcohol, or mental health treatment in lieu of being convicted for the offense.

While an RCW 10.05 deferred prosecution is not limited to DUIs, this is the setting in which it is most often used. This is usually due to the mandatory minimums for second and third DUI offenses and their close relation to one of the requisites for entering the deferred (alcohol addiction).

The language of RCW 10.05 states that a person may petition the court of limited jurisdiction for a deferred prosecution for any misdemeanor or gross misdemeanor. However for any violations of RCW 46 (relating to traffic offenses like DUI), a person can only do this deferred prosecution once in a lifetime.

The process starts off with the filing of a petition which states certain things. The main thing is that the crime was a result of, or caused by, a substance abuse issue or mental health issue and that if the issue is not dealt with, there is a probability that future violations may occur.

The filing of the petition will stop the speedy trial clock that would normally be running to explore the deferred prosecution option.

The first step is to locate a treatment agency and to obtain an assessment. The agency will talk with you, review your criminal history, review your driving history, probably take a sample to determine if you are still using or recently stopped using, and to otherwise determine whether the deferred prosecution program is the right fit for you. This is an important step because the agency must determine that you do have an alcohol, drug, or mental health issue that is amenable to treatment.

The treatment agency will then develop a two year long treatment plan. You must be able to pay for this treatment, either on your own or through insurance. It can be expensive. Depending on the treatment and the agency, the price can be anywhere from $4,000 through $10,000+.

After the two year treatment, there is three additional years of court supervision/probation. You must maintain abstinence and law abiding behavior during that time period. If you fail to comply, you run the risk of having your deferred revoked (which means possibly being convicted of the crime and sentenced!). However, if you successfully complete the deferred prosecution, the case will be dismissed (but will still count as a prior DUI if you receive a subsequent DUI within 7 years).

If a deferred prosecution sounds right for you, be sure to explore the option with your attorney!

Consequences of a Misdemeanor Conviction in Washington

A conviction for a criminal offense in the State of Washington can have long lasting effects that go beyond jail time.

If you plead guilty or are found guilty of a criminal offense, the immediate things that can result are some sort of sanction such as jail time or electronic home monitoring, fines, and probation.

Additionally, the plea form itself may disclose certain "other consequences." Some convictions will result in a suspension of your driver's license and/or commercial driver's license. Some will result in a requirement to obtain an ignition interlock or other alcohol/drug testing. Some will require you to submit a sample of your DNA for filing. Some will cause you to lose your firearm rights. Some may cause you to lose State and Federal benefits such as financial aid.

Maybe convictions also have important immigration ramifications for non-U.S. citizens.

Some potential consequences that are typically not listed in a plea form are that a conviction may result in inadmissibility to Canada and other countries. Also, that you may have to list the conviction on job, school, and housing applications which can negatively impact your ability to get those things.

It is important for anyone charged with a crime to consult a criminal defense attorney and to be sure to ask about collateral consequences and to be prepared not just for the immediate consequences, but also the long lasting ones.

Updated 2017 and beyond DUI conviction consequences

The Washington Driving Under the Influence penalty grid has been updated effective August 2017. The grid can be viewed at http://www.courts.wa.gov/newsinfo/content/duigrid/.

Here is the "grid" portion of the grid (the document goes on for several additional pages):

Court – DUI Sentencing Grid

(RCW 46.61.5055 as amended by statute effective July 23, 2017, rev. 8/21/2017)

BAC Result < .15 or No Test Result	No Prior Offense1	One Prior Offense1	Two Prior Offenses1
Mandatory Minimum/ Maximum Jail Time2	24 Consecutive Hours/364 Days	30/364 Days	90/364 Days
If Passenger Under 16 Mandatory Jail	Additional 24 Hours	Additional 5 Days	Additional 10 Days
EHM or Jail Alternative2	15 Days in Lieu of Jail	60 Days Mandatory	120 Days Mandatory/8 Days Jail Min.
Alternative to Mandatory Jail + EHM	N/A	At least 4 Days Jail+180 Days EHM2	N/A
Mandatory Minimum/ Maximum Fine3***	$990.50/$5,000	$1,245.50/$5,000	$2,095.50/$5,000
If Passenger Under 16 Minimum/Range4***	$1,000/$1,000-$5,000 + assessments	$1,000/$2,000-$5,000 + assessments	$1,000/$3,000-$10,000 + assessments
Driver's License**	90-Day Suspension5	2-Year Revocation5	3-Year Revocation
If Passenger Under 16 II Device	Additional 6 Months	Additional 6 Months	Additional 6 Months
24/7 Sobriety Program2	If available	If available	If available
Alcohol/Drug Ed./Victim Impact or Treatment	As Ordered	As Ordered	As Ordered
Expanded alcohol assessment/treatment	N/A	Mandatory/treatment if appropriate	Mandatory/treatment if appropriate
II Device	DOL imposed in all cases.
BAC Result ≥ .15 or Test Refusal	No Prior Offense1	One Prior Offense1	Two Prior Offenses1
Mandatory Minimum/ Maximum Jail Time2	48 Consecutive Hours/364 Days	45/364 Days	120/364 Days
If Passenger under 16 Mandatory Jail	Additional 24 Hours	Additional 5 Days	Additional 10 Days
EHM/ or Jail Alternative2	30 Days in Lieu of Jail	90 Days Mandatory	150 Days Mandatory/ 10 Days Jail Min.
Alternative to Mandatory Jail + EHM	N/A	At least 6 Days Jail + 6 Months EHM2	N/A
Mandatory Minimum/ Maximum Fine3***	$1,245.50/$5,000	$1,670.50/$5,000	$2,945.50/$5,000
If Passenger Under 16 Minimum/Range4***	$1,000/$1,000-$5,000 + assessments	$1,000/$2,000-$5,000 + assessments	$1,000/$3,000-$10,000 + assessments
Driver's License**	1-Year Revocation5 2 Years if BAC refused	900-Days Revocation 3 Years if BAC refused	4-Year Revocation
If Passenger Under 16 II Device	Additional 6 Months	Additional 6 Months	Additional 6 Months
24/7 Sobriety Program2	If available	If available	If available
Alcohol/Drug Ed./Victim Impact or Treatment	As Ordered	As Ordered	As Ordered
Expanded alcohol assessment/treatment	N/A	Mandatory/treatment if appropriate	Mandatory/treatment if appropriate

The penalty grid lays out the mandatory minimum fines and jail time that must be imposed upon a conviction for DUI. The grid is based on the number of prior offenses that one has within a 7 year time period. It is then broken down by the Alcohol reading in the case in the following categories: no test done/test result under .15, test result above .15, and refusal.

The changes across the board are that there has been a slight increase in the fine.

The largest change is in the "One Prior Offense" section. There is now an EHM or Jail Alternative for such offenses. Instead of 30 days jail + 60 days of electronic home monitoring, the legislature now allows for 4 days jail + 180 days of electronic home monitoring. There is a similar sort of modification for the over .15 BAC category as well.

This is a good alternative to be aware of if you are in the position of having to deal with a second offense within 7 years and perhaps a more palatable option to some than engaging in an RCW 10.05 deferred prosecution program.

Drug Laws in Washington

There are many aspects of the drug laws in the State of Washington, when combined with legal doctrines with unfortunate interpretations and interactions, that render such laws unfair.

This is not to say that drugs like heroin and methamphetamine are not a problem and that true drug dealers should be let off with a slap on the wrist. However, the answer should not be to construct draconian laws and combine them with equally draconian legal doctrines to obtain convictions.

The first issue is that drug possession in Washington is a strict liability crime. What that means is that if you are in possession of an illegal drug, even unknowingly, you are guilty. So, if someone plants a baggie of methamphetamine on you and then calls the police to report you, they can arrest you and charge you with possession.

This should stand in stark contrast with the vast majority of crimes which require a mens rea in order to convict you. A mens rea is a latin term for an "evil intent." For instance, to commit an assault, you must engage in an intentional act. If you accidentally hit someone on your back swing while on the golf course, you did not commit an assault on that person. Even for similar possession crimes like unlawful possession of a firearm, the possession must be done knowingly.

Part of the reason that this is acceptable under the drug statutes is that there is an affirmative defense called "unwitting possession." This defense requires you to prove that you did not know that you possessed the drugs or that you did not know the substance was an illegal drug. This should be somewhat shocking, as typically an accused in not required to prove their innocence. However, in the unfortunate decision of State v. Bradshaw, 52 Wn.2d 528 (2004), the Washington Supreme Court decided that this was not burden shifting, the term used to describe the constitutionally forbidden practice of making criminal defendants prove their innocence, and instead was a valid exercise of legislative authority.

The problem continues. The second issue is that "possession" can even be constructive. This means that the drugs do not have to be on your person, but if you have dominion and control over the substance, the government can convict you. The problem is that dominion and control is poorly defined. You are also assumed to have dominion and control over certain areas like your living space, your car, and the like. So, if you were to let someone house sit and they left they had a drug habit and left some substance in your house, you can again be charged with possession of a controlled substance. If you offered someone a ride in your car and they left a baggie in your car, you can be charged with possession of a controlled substance.

You may think well, with this unwitting possession defense, can't I just tell the jury the drugs weren't mine? Well, sure. But keep in mind that in many cases lawyers, clients, or both do not want the client testifying. This is for various reasons, whether it be nervousness (which can be construed as nerves because one is lying), exposing the client to cross-examination by a skilled prosecutor who wants to put the client in jail, testimony that has facets of it that are embarrassing or my seem unbelievable (they were my friends, I swear!), it can be a bad idea to get up on the witness stand. One major reason is that with many juries it is a lose-lose proposition for the accused. Juries in some jurisdictions tend to believe the police and the prosecutor and think people charge with drug crimes are liars. So not matter what you say, the jury will think you are lying, and the police and prosecution will fully embrace that fact and play off of it.

Further, the unjustness increases when combined with this next issue. Under a certain line of cases, including State v. Williams, 62 Wn. App. 748 (1991), there is no minimum amount of narcotic drug which must be possessed in order to sustain a conviction. That means that you could be convicted for having trace amounts of controlled substance. If that friend of yours left a seemingly empty sandwich bag that once contained methamphetamine at your house, you can be charged with possession of a controlled substance if it has any residence in it at all. If your money has trace amounts of controlled substance on it, you can be charged with possession of a controlled substance.

This next problem is harder to sympathize with, but hopefully the problem is evident. For certain charges, like delivery or a controlled substance, or possession with intent to deliver, the charges can be enhanced in certain areas or in certain circumstances. One of these circumstances occurs within 1000 feet of a school bus stop or bus route. In many areas, this encompasses 90% of the terrain which automatically drastically increases the potential sentence for the offense. In many areas, there is nothing visible to show what is or is not a school bus route, so many sentences are enhanced where the alleged deliverer had no idea they were in a "protected zone."

So, if you keep in mind that delivery of a substance can be any amount and does not have to be for money, you can have some real issues. While in an ideal world, heroin and methamphetamine use and addiction would not be an issue, the reality is that it is. These addicts are usually not civic-minded CEOs of prestigious companies, but are usually impoverished and congregate together out of necessity. Thus, if they are sharing drugs, like passing a needle around, they are now not just in possession, but also delivering a controlled substance to one another. Delivery alone vastly increases the amount of jail for these offenses, so these school bus route and school bus stop enhancements really go above and beyond these already harsher sentences.

You can also factor in the fact that marijuana is also still a controlled substance. Thus, if you were to be passing a joint around, you could be guilty of delivery of a controlled substance, even though possession of marijuana is legal in the State.

Another such enhancement is the so-called "deadly weapon" enhancement. A deadly weapon enhancement makes sense at a surface level, but if you start to look at what actually qualifies as a deadly weapon and what sort of possession you have to have of the "weapon," it starts to make less and less sense. A deadly weapon can really be anything, but several things that qualify outright are brass knuckles, sling shots, billies, sand clubs, and sand bags. You did not misread any of these. You also do not need to even be holding the weapon while committing the crime, it just needs to be in a place where you could get to it if you wanted. Again, the issue is that there is a dramatic sentence enhancement for committing a crime with a deadly weapon. It will also render the offense a strike offense in the "three strikes and you are out" sense.

Many of these issues were created during the largely ineffectual "war on drugs." The political will to come down on drugs and drug offenders was great. They did not garner much sympathy in the courts, and the government obtained many rulings which heavily favored the carrying out of this so-called war, which also may have arisen out of the sentiment that going after these drugs with convictions was the right thing to do. However, even now with a softer stance on certain substances, like marijuana, and even less harshness in laws surrounding other offenses which many would consider to be more heinous, like crimes against children and sex crimes, the drug laws remain unchanged.

The reasons are somewhat obvious. It would very unfavorable politically to come out as soft on drugs or soft on crime by creating sensible drug laws and closing some of these seeming loop-holes which favor the government in the prosecution of these crimes. Fortunately, there is finally some traction gaining in the area of criminal justice reform and we can only hope that the drug laws are re-examined and made to be more sensible.