Deferred Prosecution

Deferred Prosecution is a Washington sentencing alternative that allows defendants charged with misdemeanor and gross misdemeanor crimes to have their charges dismissed in exchange for successfully completing a treatment program for either substance use disorder or mental health issues. The program and its requirements are outlined in RCW 10.05.

It is first important to note that deferred prosecution is not a “diversion” program in the traditional sense that most people would think. Some states offer a “DUI diversion” program where first-time offenders can participate in a straightforward program to have their DUI charge dismissed after a short probationary period. Washington does not have such a program built into its DUI statutes. Although a “deferred prosecution” and “diversion” may sound similar, the two programs are vastly different, and deferred prosecution should not be used as a simple “diversion” tool. Instead, deferred prosecution is an intensive five-year program designed for individuals facing severe substance use disorders or mental health issues. For purposes of simplicity, the information below revolves around a “substance use disorder” deferred prosecution (which is the most common type of program).

To participate in deferred prosecution, a person must first be evaluated by a Washington-certified substance use treatment center and qualify as having “substance use disorder” (i.e., alcoholism or severe drug addiction). Once evaluated, the person will then be prescribed a two-year intensive treatment program that is broken down into three distinct phases:

• Phase I: 72 hours of intensive outpatient treatment. Phase I usually lasts approximately two to three months and requires a person to attend treatment several times per week for multiple hours per session. A person must also complete at least two self-help recovery meetings per week during this time (e.g., AA meetings). Phase I is the most intensive phase of treatment.
• Phase II: 26 weeks of weekly aftercare. During phase II, a person must attend treatment at least one time per week for at least an hour per session. This phase typically lasts for six to eight months. A person must also continue to attend at least two self-help recovery meetings per week (or as otherwise directed by treatment).
• Phase III: Monthly monitoring. During the final phase, a person must attend at least one meeting with a counselor per month. They must also attend self-help recovery meetings as directed by their counselor. Phase III lasts for the remainder of the two-year treatment program (usually 12 to 14 months).

Once a person completes the two-year treatment program, they are then subject to three remaining years of monitoring by the court or a probation officer. During this time, the person must maintain total abstinence from alcohol and other non-prescribed drugs. They must also remain law abiding and comply with any DOL regulations for licensing (including the installation of an ignition interlock device). During the final three years, a person may be subject to random testing at the court’s discretion. The final three-year monitoring is essentially like being placed on probation with the court. If the person completes this five-year program (i.e., two years of treatment followed by three years of court supervision), their charges are then completely dismissed.

Importantly, when a person enters deferred prosecution, they do not plead guilty in the traditional sense. However, by entering deferred prosecution a person waives their rights to contest the case and proceed to trial. To this end, the person must stipulate to the admissibility of any police reports and must agree that the info contained within them would be sufficient to support a finding of guilt. The charges are then placed into a “pending” or “deferred” status for five years during the pendency of deferred prosecution. If a person violates the terms of deferred prosecution during this time (such as getting new criminal charges, neglecting treatment, or failing to comply with court conditions), the person can be revoked from the program and found guilty of the charges. When a person is revoked, the Judge will simply read the police reports and sentence the person on the charges in a very streamlined hearing. In this regard, the person has the original charges hanging over their head the entire five years if they do not comply with the program. Additionally, entry into a deferred prosecution program will be considered a “prior” DUI offense under RCW 46.61.5055 if the person were to receive another DUI in the future. This is true even if the deferred prosecution results in dismissal of the charges.

Although these requirements can seem daunting, there are many legal benefits to participating in a deferred prosecution program if the person is successful.

• The charges will never be considered a traditional “conviction” and will be dismissed after five years. This means the person will not face any jail time or be sentenced (although there may be some fees assessed while on deferred prosecution).
• A person can add multiple charges from a single incident onto one deferred prosecution, allowing them to get all charges from an incident dismissed. Further, charges from separate incidents can also be consolidated into one deferred prosecution so long as they occurred within seven days of each other.
• So long as the person did not refuse the evidentiary breath test, the Washington DOL will not impose a suspension of the person’s license and the person will not be required to have SR-22 insurance. Note, however, that under federal and Washington law, a deferred prosecution will not prevent a suspension to a commercial drivers license. Also, it is very important to note that a person must still install an ignition interlock device as a condition of participating in deferred prosecution. Depending on how many prior restrictions a person has on their drive record, this device may be required under RCW 46.20.740 for a period of either one, five, or ten years. Under Washington law, there is not a feasible way to avoid an interlock device in a deferred prosecution program for substance use disorder.
• Starting in 2026, a person may participate in a second deferred prosecution program if they were to receive a second DUI charge in the future. However, there are very strict requirements for a court to allow a second deferred prosecution, and a person will only be eligible for a second deferred prosecution if they used the program on their first lifetime offense and then later sought to use it on their second offense.

In sum, deferred prosecution can be a valuable tool in the right type of case, but it should not be entered into lightly or treated as an easy way to get a charge dismissed. The requirements of this program are intensive, complex, and time-consuming. Additionally, the information above is intended as merely a general outline of the program. There are many nuances and details to a deferred prosecution that may be unique to certain types of cases. If you are considering deferred prosecution, it is very important to first discuss the requirements with an experienced attorney who is knowledgeable about the process.