Ethics and the Law
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Ethics and the Law
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CHAPTER 10.05 RCW DEFERRED PROSECUTION--COURTS OF LIMITED JURISDICTION Sections 10.05.010 Eligibility--Time
for petition.
RCW 10.05.010 Eligibility--Time for petition. In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution program. The petition shall be filed with the court at least seven days before the date set for trial but, upon a written motion and affidavit establishing good cause for the delay and failure to comply with this section, the court may waive this requirement subject to the defendant's reimbursement to the court of the witness fees and expenses due for subpoenaed witnesses who have appeared on the date set for trial. A person charged with a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once. Separate offenses committed more than seven days apart may not be Consolidated in a single program. [1998 c 208 § 1; 1985 c 352 § 4; 1982 1st ex.s. c 47 § 26; 1975 1st ex.s. c 244 § 1.] NOTES:Effective date--1998 c 208: "This act takes effect January 1, 1999." [1998 c 208 § 7.] Legislative finding--1985 c 352: "The legislature finds that the deferred prosecution program is an alternative to punishment for persons who will benefit from a treatment program if the treatment program is provided under circumstances that do not unreasonably endanger public safety or the traditional goals of the criminal justice system. This alternative to punishment is dependent for success upon appropriate treatment and the willingness and ability of the person receiving treatment to cooperate fully with the treatment program. The legislature finds that some persons have sought deferred prosecution but have been unable or unwilling to cooperate with treatment requirements and escaped punishment because of the difficulties in resuming prosecution after significant delay due to the absence of witnesses at a later date and the congestion in courts at a later date. The legislature further finds that the deferred prosecution statutes require clarification. The purpose of sections 4 through 19 of this act is to provide specific standards and procedures for judges and prosecutors to use in carrying out the original intent of the deferred prosecution statutes." [1985 c 352 § 3.] Severability--1985 c 352: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1985 c 352 § 22.] Severability--1982 1st ex.s. c 47: See note following RCW 9.41.190. RCW 10.05.015 Statement of availability. At the time of arraignment a person charged with a violation of RCW 46.61.502 or 46.61.504 may be given a statement by the court that explains the availability, operation, and effects of the deferred prosecution program. [1985 c 352 § 5.] NOTES:Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.020 Requirements of petition--Rights of petitioner--Court findings. (1) The petitioner shall allege under oath in the petition that the wrongful conduct charged is the result of or caused by alcoholism, drug addiction, or mental problems for which the person is in need of treatment and unless treated the probability of future reoccurrence is great, along with a statement that the person agrees to pay the cost of a diagnosis and treatment of the alleged problem or problems if financially able to do so. The petition shall also contain a case history and written assessment prepared by an approved alcoholism treatment program as designated in chapter 70.96A RCW if the petition alleges alcoholism, an approved drug program as designated in chapter 71.24 RCW if the petition alleges drug addiction, or by an approved mental health center if the petition alleges a mental problem. (2) Before entry of an order deferring prosecution, a petitioner shall be advised of his or her rights as an accused and execute, as a condition of receiving treatment, a statement that contains: (a) An acknowledgement of his or her rights; (b) an acknowledgement and waiver of the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; (c) a stipulation to the admissibility and sufficiency of the facts contained in the written police report; and (d) an acknowledgement that the statement will be entered and used to support a finding of guilty if the court finds cause to revoke the order granting deferred prosecution. The petitioner shall also be advised that he or she may, if he or she proceeds to trial and is found guilty, be allowed to seek suspension of some or all of the fines and incarceration that may be ordered upon the condition that he or she seek treatment and, further, that he or she may seek treatment from public and private agencies at any time without regard to whether or not he or she is found guilty of the offense charged. He or she shall also be advised 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 charges or sincerely believes that he or she does not, in fact, suffer from alcoholism, drug addiction, or mental problems. (3) Before entering an order deferring prosecution, the court shall make specific findings that: (a) The petitioner has stipulated to the admissibility and sufficiency of the facts as contained in the written police report; (b) the petitioner has acknowledged the admissibility of the stipulated facts in any criminal hearing on the underlying offense or offenses held subsequent to revocation of the order granting deferred prosecution; (c) the petitioner has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; and (d) the petitioner's statements were made knowingly and voluntarily. Such findings shall be included in the order granting deferred prosecution. [1996 c 24 § 1; 1985 c 352 § 6; 1975 1st ex.s. c 244 § 2.] NOTES: Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. Criminal history and driving record: RCW 46.61.513. RCW 10.05.030 Arraignment continued--Referral to treatment facility. The arraigning judge upon consideration of the petition and with the concurrence of the prosecuting attorney may continue the arraignment and refer such person for a diagnostic investigation and evaluation to an approved alcoholism *treatment facility as designated in chapter 70.96A RCW, if the petition alleges an alcohol problem, an approved drug treatment center as designated in chapter 71.24 RCW, if the petition alleges a drug problem, or to an approved mental health center, if the petition alleges a mental problem. [1975 1st ex.s. c 244 § 3.] NOTES: *Reviser's note: Chapter 70.96A RCW was amended by 1990 c 151, changing "treatment facility" to "treatment program." RCW 10.05.040 Investigation and examination by *treatment facility. The facility to which such person is referred shall conduct an investigation and examination to determine: (1) Whether the person suffers from the problem described; (2) Whether the problem is such that if not treated there is a probability that similar misconduct will occur in the future; (3) Whether extensive and long term treatment is required; (4) Whether effective treatment for the person's problem is available; and (5) Whether the person is amenable to treatment. [1985 c 352 7; 1975 1st ex.s. c 244 § 4.] NOTES: *Reviser's note: Chapter 70.96A RCW was amended by 1990 c 151, changing "treatment facility" to "treatment program." Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. The facility shall make a written report to the court stating its findings and recommendations after the examination required by RCW 10.05.040. If its findings and recommendations support treatment, it shall also recommend a treatment plan setting out: (1) The type; (2) Nature; (3) Length; (4) A treatment time schedule; and (5) Approximate cost of the treatment. The report with the treatment plan shall be filed with the court and a copy given to the petitioner and petitioner's counsel. A copy of the treatment plan shall be given to the prosecutor by petitioner's counsel at the request of the prosecutor. The evaluation facility making the written report shall append to the report a commitment by the *treatment facility that it will provide the treatment in accordance with this chapter. The facility shall agree to provide the court with a statement every three months for the first year and every six months for the second year regarding (a) the petitioner's cooperation with the treatment plan proposed and (b) the petitioner's progress or failure in treatment. These statements shall be made as a declaration by the person who is personally responsible for providing the treatment. [1985 c 352 § 8; 1975 1st ex.s. c 244 § 5.] NOTES: *Reviser's note: Chapter 70.96A RCW was amended by 1990 c 151, changing "treatment facility" to "treatment program." Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.060 Docket and abstract procedure upon approval of treatment plan. If the report recommends treatment, the court shall examine the treatment plan. If it approves the plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, if able to do so, or arrange for the treatment, an entry shall be made upon the person's court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan shall be attached to the docket, which shall then be removed from the regular court dockets and filed in a special court deferred prosecution file. If the charge be one that an abstract of the docket showing the charge, the date of the violation for which the charge was made, and the date of petitioner's acceptance is required to be sent to the department of licensing, an abstract shall be sent, and the department of licensing shall make an entry of the charge and of the petitioner's acceptance for deferred prosecution on the department's driving record of the petitioner. The entry is not a conviction for purposes of Title 46 RCW. Upon receipt of the abstract of the docket, the department shall issue the petitioner a probationary license in accordance with RCW 46.20.355, and the petitioner's driver's license shall be on probationary status for five years from the date of the violation that gave rise to the charge. The department shall maintain the record for ten years from date of entry of the order granting deferred prosecution. [1994 c 275 § 17; 1990 c 250 § 13; 1985 c 352 § 9; 1979 c 158 § 4; 1975 1st ex.s. c 244 § 6.] NOTES:Short title--Effective date--1994 c 275: See notes following RCW 46.04.015. Effective dates--1990 c 250 §§ 1-13: See note following RCW 46.16.301. Severability--1990 c 250: See note following RCW 46.16.301. Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.070 Petitioner arraigned when treatment rejected. When treatment is either not recommended or not approved by the judge, or the petitioner declines to accept the treatment plan, the petitioner shall be arraigned on the charge. [1985 c 352 § 10; 1975 1st ex.s. c 244 § 7.] NOTES:Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.080 Evidence, uses and admissibility. If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petition and/or investigation is inadmissible in any trial on the charges, but shall be available for use after a conviction in determining a sentence. [1985 c 352 § 11; 1975 1st ex.s. c 244 § 8.] NOTES: Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.090 Procedure upon breach of treatment plan. If a petitioner, who has been accepted for a deferred prosecution, fails or neglects to carry out and fulfill any term or condition of the petitioner's treatment plan or any term or condition imposed in connection with the installation of an interlock or other device under RCW 46.20.720, the facility, center, institution, or agency administering the treatment or the entity administering the use of the device, shall immediately report such breach to the court, the prosecutor, and the petitioner or petitioner's attorney of record, together with its recommendation. The court upon receiving such a report shall hold a hearing to determine whether the petitioner should be removed from the deferred prosecution program. At the hearing, evidence shall be taken of the petitioner's alleged failure to comply with the treatment plan or device installation and the petitioner shall have the right to present evidence on his or her own behalf. The court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution. If removed from deferred prosecution, the court shall enter judgment pursuant to RCW 10.05.020 and, if the charge for which the deferred prosecution was granted was a misdemeanor or gross misdemeanor under Title 46 RCW, shall notify the department of licensing of the removal and entry of judgment. [1997 c 229 § 1; 1994 c 275 § 18; 1985 c 352 § 12; 1975 1st ex.s. c 244 § 9.] NOTES:Effective date--1997 c 229: "This act takes effect January 1, 1998." [1997 c 229 § 15.] Short title--Effective date--1994 c 275: See notes following RCW 46.04.015. Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.100 Conviction of similar offense. If a petitioner is subsequently convicted of a similar offense that was committed while the petitioner was in a deferred prosecution program, upon notice the court shall remove the petitioner's docket from the deferred prosecution file and the court shall enter judgment pursuant to RCW 10.05.020. [1998 c 208 § 2; 1985 c 352 § 13; 1975 1st ex.s. c 244 § 10.] NOTES:Effective date--1998 c 208: See note following RCW 10.05.010. Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.110 Trial delay not grounds for dismissal. Delay in bringing a case to trial caused by a petitioner requesting deferred prosecution as provided for in this chapter shall not be grounds for dismissal. [1985 c 352 § 14; 1975 1st ex.s. c 244 § 11.] NOTES: Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.120 Dismissal of charges. Three years after receiving proof of successful completion of the two-year treatment program, but not before five years following entry of the order of deferred prosecution, the court shall dismiss the charges pending against the petitioner. [1998 c 208 § 3; 1994 c 275 § 19; 1985 c 352 § 15; 1983 c 165 § 45; 1975 1st ex.s. c 244 § 12.] NOTES: Effective date--1998 c 208: See note following RCW 10.05.010. Short title--Effective date--1994 c 275: See notes following RCW 46.04.015. Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. Legislative finding, intent--Effective dates--Severability--1983 c 165: See notes following RCW 46.20.308. RCW 10.05.130 Services provided for indigent defendants. Funds shall be appropriated from the fines and forfeitures of the court to provide investigation, examination, report and treatment plan for any indigent person who is unable to pay the cost of any program of treatment. [1975 1st ex.s. c 244 § 13.] RCW 10.05.140 Conditions of granting. As a condition of granting a deferred prosecution petition, the court shall order that the petitioner shall not operate a motor vehicle upon the public highways without a valid operator's license and proof of liability insurance. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490. As a condition of granting a deferred prosecution petition, the court may also order the installation of an interlock or other device under RCW 46.20.720. As a condition of granting a deferred prosecution petition, the court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160. The court may terminate the deferred prosecution program upon violation of this section. [1997 c 229 § 2; 1991 c 247 § 1; 1985 c 352 § 16.] NOTES: Effective date--1997 c 229: See note following RCW 10.05.090. Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.150 Alcoholism program requirements. A deferred prosecution program for alcoholism shall be for a two-year period and shall include, but not be limited to, the following requirements: (1) Total abstinence from alcohol and all other nonprescribed mind-altering drugs; (2) Participation in an intensive inpatient or intensive outpatient program in a state-approved alcoholism *treatment facility; (3) Participation in a minimum of two meetings per week of an alcoholism self-help recovery support group, as determined by the assessing agency, for the duration of the treatment program; (4) Participation in an alcoholism self-help recovery support group, as determined by the assessing agency, from the date of court approval of the plan to entry into intensive treatment; (5) Not less than weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment; (6) Not less than monthly outpatient contact, group or individual, for the remainder of the two-year deferred prosecution period; (7) The decision to include the use of prescribed drugs, including disulfiram, as a condition of treatment shall be reserved to the treating facility and the petitioner's physician; (8) All treatment within the purview of this section shall occur within or be approved by a state-approved alcoholism *treatment facility as described in chapter 70.96A RCW; (9) Signature of the petitioner agreeing to the terms and conditions of the treatment program. [1985 c 352 § 17.] NOTES: *Reviser's note: Chapter 70.96A RCW was amended by 1990 c 151, changing "treatment facility" to "treatment program." Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.160 Appeal of order granting deferred prosecution. The prosecutor may appeal an order granting deferred prosecution on any or all of the following grounds: (1) Prior deferred prosecution has been granted to the defendant; (2) Failure of the court to obtain proof of insurance or a treatment plan conforming to the requirements of this chapter; (3) Failure of the court to comply with the requirements of RCW 10.05.100; (4) Failure of the evaluation facility to provide the information required in RCW 10.05.040 and 10.05.050, if the defendant has been referred to the facility for treatment. If an appeal on such basis is successful, the trial court may consider the use of another *treatment facility. [1998 c 208 § 4; 1985 c 352 § 18.] NOTES: *Reviser's note: Chapter 70.96A RCW was amended by 1990 c 151, changing "treatment facility" to "treatment program." Effective date--1998 c 208: See note following RCW 10.05.010. Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. RCW 10.05.170 Supervision as condition--Levy of assessment. As a condition of granting deferred prosecution, the court may order supervision of the petitioner during the period of deferral and may levy a monthly assessment upon the petitioner as provided in RCW 10.64.120. In a jurisdiction with a probation department, the court may appoint the probation department to supervise the petitioner. In a jurisdiction without a probation department, the court may appoint an appropriate person or agency to supervise the petitioner. A supervisor appointed under this section shall be required to do at least the following: (1) If the charge for which deferral is granted relates to operation of a motor vehicle, at least once every six months request from the department of licensing an abstract of the petitioner's driving record; and (2) At least once every month make contact with the petitioner or with any agency to which the petitioner has been directed for treatment as a part of the deferral. [1991 c 247 § 2; 1985 c 352 § 19.] NOTES: Legislative finding--Severability--1985 c 352: See notes following RCW 10.05.010. |
