Understanding Deferred Prosecution in Washington State: a 2023 Guide

Deferred prosecution in Washington State allows people to seek treatment instead of getting sentenced by the judge. It’s only available to those charged with misdemeanors or gross misdemeanors. To ask for deferred prosecution, the person must file a petition in court saying, among other things, that they need help (e.g., to go to rehab) and that without help, they are likely to re-offend. Those who ask for and get deferred prosecution waive their rights to a trial, to plead not guilty, and to call witnesses. If the person successfully follows the agreement, the judge may dismiss the original charges entirely. If they don’t follow through on what they promised in the agreement, they may be found guilty without a trial. 

The takeaway? Deferred prosecution can help keep folks out of jail who may need treatment instead. On the other hand, it can carry serious consequences and can’t be undone afterward. Attorneys help people go into these arrangements with a clear understanding of the benefits and drawbacks. 

Veitch Ault Defense has decades of experience helping people navigate and understand Washington’s deferred prosecution program. Their down-to-earth Bellevue criminal defense lawyer helps people make informed decisions about their cases. They are open with clients about whether deferred prosecution is available to them and, if so, if it might be beneficial. 

What Is Deferred Prosecution in Washington State?

Washington law allows some people to participate in a treatment program instead of possibly getting a conviction and going to jail. This pathway is called deferred prosecution. For example, someone charged with a misdemeanor DUI might file a deferred prosecution petition because they have a drinking problem and want to complete treatment. People accused of misdemeanors or gross misdemeanors may be able to go this route. But people usually can’t get deferred prosecution for the same crime more than once, meaning you only get one shot to avoid a conviction for, say, a DUI. Likewise, if you’re charged with a felony, deferred prosecution probably isn’t available to you. 

Is Deferred Prosecution the Same Thing as Being Found Not Guilty?

Deferred prosecution is different from being found not guilty. If the judge finds you not guilty, that means they held a trial and decided the evidence didn’t support a finding of guilt. If you complete a treatment program per a deferred prosecution order, the judge may dismiss the charges against you. In other words, in a deferred prosecution case, the judge doesn’t decide if it thinks you’re guilty of the crime. Instead, the judge dismisses the allegations entirely from the public record.  

What Are the Requirements for Deferred Prosecution in Washington?

To be eligible for deferred prosecution, you need to meet the following conditions:

  • This must be your first time participating in deferred prosecution for this offense (e.g., a DUI or domestic violence);
  • The charges against you must be a misdemeanor or gross misdemeanor (not a felony);
  • You must waive many of your fundamental criminal rights (like the rights to a jury trial and to call witnesses);
  • You need to prove that you have a problem (e.g., alcoholism or mental health disorder) that is treatable; and
  • You also need to show that, without treatment, you are likely to commit the same offense again (such as a DUI or domestic violence charge). 

You also need to meet other requirements not listed here. For example, you must agree to pay for treatment and show the program is court-approved. For a deferred DUI prosecution program, you may also need to agree to use an ignition interlock device and abstain from alcohol entirely. 

Petitioning the judge for deferred prosecution has significant consequences on someone’s rights going forward. Before deciding to go this route, people are encouraged to talk to a seasoned Washington DUI attorney. Respected lawyers take the time to understand the case against the person and what their options are. A good attorney can also give a straightforward answer about whether deferred prosecution is the best option. 

What Is the Deferred Prosecution Process and Timeline in Washington? 

The accused begins the deferred prosecution process by filing the petition. Then, the judge holds a hearing about the request. During the hearing, the judge has a discussion with the accused about their legal rights. The point of this discussion is for the judge to make sure the accused knows what their legal rights are and knows they forfeit their rights completely if the judge grants the petition. The judge also looks at the evidence and asks questions about the treatment program. Finally, the judge decides to grant or deny the petition.

The Accused Files the Petition

The deferred prosecution process begins with the accused (the petitioner) filing a petition with the judge. The petition must list the reasons for requesting deferred prosecution and show the petitioner qualifies for it. For example, they would have to show that they have an approved program lined up and agree to pay for it. They also need to meet the eligibility requirements talked about earlier. If the petitioner can’t afford the treatment fees, they may be eligible to ask the judge to waive them. The petitioner must also agree that the police report in the case against them is sufficient and admissible. After the accused files the petition, the judge holds a hearing to talk about it. 

The Judge Holds a Hearing

During the hearing, the judge asks questions about the treatment program and the petitioner’s condition. The petitioner presents evidence to support their claims in the request for deferred prosecution. For example, they might submit a psychiatric evaluation saying they have a significant mental health disorder that requires treatment. 

If the judge needs more information before making a decision, they will request it. For example, they may ask the petitioner to have testing done or get more documentation about the treatment program. Before the judge can approve the program, it typically needs to receive a report from the facility that recommends treatment. 

The Judge Talks to Petitioner About Waiving Their Legal Rights

During the hearing, the judge will also make sure the petitioner knows the legal implications of seeking deferred prosecution. They accomplish this by having a conversation with the petitioner in court. Some of the rights the judge might talk about include the following:

  • The right to a jury trial
  • The right to a speedy trial
  • The right to call witnesses
  • The right to cross-examine witnesses
  • The right to present evidence

For example, the judge might explain what a right to a jury trial is and what it means to waive it. The judge may ask the petitioner to sign a statement saying (1) the judge explained what their rights are and (2) that the petitioner voluntarily chooses to waive their rights. The petitioner’s attorney will also discuss these matters with them before the hearing. However, the law requires the judge to have a separate conversation with the petitioner to ensure they make a voluntary decision. 

The Judge Makes a Decision

The last step is for the judge to review all the evidence and the petition and decide what to do. If the judge approves the program, the next part of the timeline is for the petitioner to follow the treatment regimen. In that case, the judge makes a note in the judge record and pauses the case for the time being. 

What Happens After Successful Completion of Deferred Prosecution?

If the petitioner successfully completes the treatment program, the judge may dismiss the charges against them. Typically, this doesn’t happen right away for charges like a DUI. Instead, the judge might wait until three years have passed from when the petitioner finishes the treatment program. The judge might wait less time before dismissing the charges in domestic violence and child welfare cases. 

How Many Times Can You Use Deferred Prosecution?

In most cases, people can only use deferred prosecution once for the same charge. For example, if someone goes to rehab for a drinking problem to avoid a DUI conviction, they only get one chance to do this. They typically can’t use deferred prosecution for another DUI down the road. For this reason, it’s really important that people are ready to engage in treatment before they elect for deferred prosecution. 

What Happens if You Don’t Follow the Deferred Prosecution Plan?

If you don’t follow the treatment program in the deferred prosecution agreement, the judge may hold a hearing to talk about what happened. If they decide you didn’t follow the agreement, the judge may enter a guilty conviction in your record. For example, picking up another DUI charge during treatment may violate the agreement. You may not get a trial since you waived your rights as part of the deferred prosecution agreement. Likewise, you likely won’t have the right to cross-examine or call witnesses at trial. 

Veitch Ault Defense: Compassionate and Dedicated Criminal Defense Attorneys

Deferred prosecution is a useful way for people to get the help they need instead of being thrown behind bars. But it’s something they can only do once. And there are heavy consequences if they break the agreement by missing treatment or getting another charge during treatment. The best way to find out if deferred prosecution makes sense in your situation is to talk to an experienced attorney. 

For nearly 20 years, Robert Ault has advocated for Washington residents accused of DUI, domestic violence, burglary, and other offenses. He has helped many clients successfully fight against criminal charges, including by assisting clients to request and participate in deferred prosecution programs. Past clients describe Rob as an attorney of the “highest caliber” who is “very skilled and dedicated to his trade.” 

If you have questions about deferred prosecution in Washington State, contact Rob today by calling 425-312-6753 to schedule a consultation. 


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