What’s Involved In a DUI Deferred Prosecution?

Many years ago, the Washington legislature recognized that some people get in trouble with the law not because they’re criminals, but rather because of alcoholism or drug addiction or in some cases, mental health issues. As a result, it passed the Deferred Prosecution statute designed to emphasize treatment more than punishment. Thus, if you are charged with a DUI and have such issues, you have the option of asking the court to defer formal prosecution of the case while you seek treatment at a state-certified treatment agency. Deferred prosecution is a demanding program requiring absolute abstinence from alcohol and non-prescribed drugs and adherence to the program requirements. In return, you do not suffer the usual consequences of a DUI conviction such as fines, jail, and loss of license.

However, there are some potential consequences which should be thoroughly discussed with your attorney before deciding to petition for deferred prosecution. It is not an easy road to take, but in the right case it is an excellent resolution of a DUI case that also results in improvement in the live of the accused. The law states that you may be granted only one deferred prosecution in a lifetime, so it important to carefully consider this decision.

All state-certified treatment agencies are required to follow essentially the same treatment program, so there is no such thing as finding an easy-versus-hard program. The alcohol treatment program itself is divided into three phases: the Intensive Phase, the Follow-up Phase and the Monitoring Phase.

The Intensive Phase is just that, requiring either inpatient hospitalization or outpatient treatment involving almost daily contact with the agency for three or four hours at a time for four to six weeks. The program involves in-depth individual and group counseling, education, self-help support meetings, lifestyle changes, etc.

The Follow-up Phase lessens the time demands, but still requires strict sobriety and complete compliance with the treatment requirements. During Follow-up, you are required to attend at least two self-help support meetings per week and meet with a counselor once a week. In addition, you are required to submit to random urine or breath tests throughout the two year program upon the request of either by your counselor or probation officer.

Once phase two is completed, you move into the Monitoring Phase. During these last 16 or 17 months, you must still attend at least two self-help support meetings per week and meet with your alcohol counselor at least once a month. In addition, you may be required to meet regularly with your probation officer to confirm your compliance.

Upon successful completion of the treatment program, the treatment agency sends a discharge summary to the court, the probation department and your lawyer. Even after completing the two year treatment program, you must still wait an additional three years before the case may be dismissed. The court may elect to continue your probation for the additional three years while imposing such conditions (continued self-help support meetings,, for instance) as are deemed appropriate. Three years after completion of treatment, you will have earned the right to a formal dismissal of the charge.

Deferred prosecution has many positive aspects, but is it important to consider several points. First, you are only eligible if you agree that you have significant substance use issues or are suffering from mental problems, that you are in need of treatment, and unless treated the probability of future recurrence is great. Secondly, the court requires you to give up substantial rights in return for the deferral, including the right to trial and to contest the charges should any violation of the program occur during the five year period of deferral of the DUI charge. In other words, you likely will proceed directly to sentencing on the DUI charge if the court revokes the deferred prosecution after finding noncompliance.

Third, strict compliance with the treatment plan’s terms is required, including total abstinence, random urinalysis or breath tests and attendance at all required meetings. In addition, costs of the program can be substantial; an outpatient treatment program can cost up to $6,500. Most group health insurance policies cover the bulk of the costs at approved treatment agencies, but some policies do not.

Fourth, even a successfully completed deferred prosecution, where the charge was dismissed, can be treated as a prior conviction. If you are subsequently convicted of another DUI where the second arrest occurred within seven years of the first arrest. The second case is a "second offense" even though the first case was dismissed on completion of the deferred prosecution program.

The deferred prosecution option has some major advantages in the right case, but it should be pursued only after very careful deliberation with the assistance of an experienced Washington State DUI attorney. In your writer’s experience, the deferred prosecution program can an excellent option when used appropriately, but it is a recipe for disaster if taken without consideration of all the rigorous requirements and the consequences that follow if the DUI deferred prosecution is not successfully completed.