BP BHEAD INT S

AN ACT Relating to deferred prosecution; amending RCW 10.05.010, 10.05.020, 10.05.060, 10.05.100, 10.05.120, 10.05.140, and 10.05.160; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that the deferred prosecution program under chapter 10.05 RCW is a privilege created by the legislature. This privilege, when granted by a court, permits a person to avoid the risk and consequences of successful prosecution if the person successfully completes the requirements of the program. The legislature finds that because of this nature of the deferred prosecution, a court has the right to request the person to waive certain rights otherwise available in criminal cases, before a person may receive the benefits that accrue from the deferral of prosecution. The legislature further finds that because the deferred prosecution permits persons to avoid punishment, a court should make certain findings prior to granting a deferred prosecution, to ensure that the program is provided under circumstances that do not unreasonably endanger or compromise public safety or the traditional goals of the criminal justice system. The legislature further finds that some courts have inconsistently interpreted some provisions of chapter 10.05 RCW. The purpose of this act is to provide further clarification and to provide specific standards and procedures for judges and prosecutors to use in carrying out the original intent of the deferred prosecution statutes.

Sec. 2. RCW 10.05.010 and 1985 c 352 s 4 are each amended to read as follows:

In a court of limited jurisdiction a person charged with ((a)) an infraction, 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 in any ((~~five-year~~)) ten-year period. This ten-year period shall run from the last date on which a petitioner's previous case or cases were dismissed under the provisions of this chapter. In the event that a previous deferred prosecution was revoked, the ten-year period is to run from the date that the previous deferred prosecution was revoked. New offenses committed within this ten-year period are not eligible for a deferred prosecution. Separate offenses committed more than seven days apart may not be consolidated in a single program.

Sec. 3. RCW 10.05.020 and 1985 c 352 s 6 are each amended to read as follows:

(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 ((~~facility~~)) 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) a stipulation to the admissibility of the facts contained in the written police report; ((~~and~~)) (c) an acknowledgement and waiver of the right to testify, to call witnesses to testify, and to present evidence in his or her defense; (d) an acknowledgement and waiver of the right to jury trial; and (e) 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)) The petitioner 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) The defendant shall state in his or her petition any other offenses or cases that the petitioner has used or intends to use under the proposed treatment program for a separate deferred prosecution. The court shall inquire before entering an order deferring prosecution whether the petitioner intends to use or has used the petition's proposed treatment program for a separate deferred prosecution for any other separate offenses or cases not mentioned in the petition. If other offenses or cases have been or will be included under the same proposed treatment program, the court shall not grant the deferred treatment program for any offenses committed more than seven days apart, pursuant to RCW 10.05.010. The court shall advise the petitioner that any attempt to consolidate additional offenses not disclosed under this section, in violation of RCW 10.05.010, shall be a breach of the conditions of the deferred prosecution. The court shall further advise the petitioner that proof of such violation shall result in the petitioner's removal from deferred prosecution and the court shall enter judgment pursuant to this section. Such representations by the petitioner, and findings and advisements by the court shall be included in the order granting the deferred prosecution.

(4) Before entering an order deferring prosecution, the court shall make specific findings that: (a) The petitioner has stipulated to the admissibility 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 or trial on the underlying offense or offenses held subsequent to revocation of the order granting deferred prosecution; ((~~and~~)) (c) the petitioner has acknowledged and waived the right to testify, to call witnesses to testify, and to present evidence in his or her defense; (d) the petitioner has acknowledged and waived the right to a jury trial; (e) the petitioner's statements, stipulations, acknowledgements, and waivers were made knowingly and voluntarily; (f) the petitioner qualifies for deferred prosecution; and (g) the proposed treatment program includes, at a minimum: (i) Frequency and type of contact between offenders and therapist; (ii) specific issues to be addressed in the treatment and description of planned treatment modalities; (iii) monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others; (iv) anticipated length of treatment; and (v) recommended prohibitions relating to use of alcohol or drugs. Such findings shall be included in the order granting deferred prosecution.

Sec. 4. RCW 10.05.060 and 1990 c 250 s 13 are each amended to read as follows:

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 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. The department shall maintain the record for ((~~five~~)) fifteen years from date of entry of the order granting deferred prosecution.

Sec. 5. RCW 10.05.100 and 1985 c 352 s 13 are each amended to read as follows:

If a petitioner ((is)) subsequently commits or is convicted of a similar offense while in a deferred prosecution program, ((~~upon notice~~)) the court shall hold a hearing to confirm the commission or conviction. If the court finds: (1) By a preponderance of the evidence and regardless of the prosecution status of the similar offense, that the petitioner has committed a similar offense while in the deferred prosecution program, or (2) that the petitioner has been convicted of a similar offense that was committed while in a deferred prosecution program, 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.

Once each month the department of licensing shall send to the court granting the deferred prosecution an abstract of the petitioner's driving record. If such record indicates that the petitioner has committed or is convicted of a similar offense while in a deferred prosecution program, 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.

Sec. 6. RCW 10.05.120 and 1985 c 352 s 15 are each amended to read as follows:

Upon proof of successful completion of the two-year treatment program, the court shall dismiss the charges pending against the petitioner. If the charge is one that requires an abstract of the docket showing the charge and the date of the petitioner's acceptance to be sent to the department of licensing, the court shall send notice to the department of licensing indicating that the charge has been dismissed pursuant to this chapter.

((~~Five~~)) Fifteen years from the date of the court's approval of a deferred prosecution program for an individual petitioner, those entries that remain in the department of licensing records relating to such petitioner shall be removed if the department of licensing has previously received notice by the court that the charge has been dismissed pursuant to this chapter. A deferred prosecution may be considered for enhancement purposes when imposing mandatory penalties and suspensions under RCW 46.61.515 for subsequent offenses within a five-year period.

Sec. 7. RCW 10.05.140 and 1991 c 247 s 1 are each amended to read as follows:

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. The court shall not grant a deferred prosecution unless the defendant has executed all acknowledgements, stipulations, and waivers as specified in RCW 10.05.020 (2), (3), and (4). 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.

Sec. 8. RCW 10.05.160 and 1985 c 352 s 18 are each amended to read as follows:

The prosecutor may appeal an order granting deferred prosecution on any or all of the following grounds:

(1) Prior participation in a deferred prosecution ((~~has been granted to~~)) program by the defendant within ((~~five~~)) ten years pursuant to RCW 10.05.010;

(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 10.05.020;

(4) Failure of the court to comply with the requirements of RCW 10.05.100;

((~~(4)~~)) (5) 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~~)) program.

NEW SECTION. Sec. 9. 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.