Monthly Archives: May 2015

The different types of deferrals under Washington law

The general premise of a deferral in the criminal justice system is simple; stay out of trouble for a period of time, complete whatever conditions are imposed (treatment, fines, ect.), and the charges against you get dismissed. Under Washington law, there are many forms of a deferral but the specifics of each deferral can vary greatly depending on which particular deferral is being used. The following provides a brief summary of the various deferrals that are available under Washington law:

Deferred Prosecutions
A deferred prosecution is the most intense and lengthy form of deferral under Washington law. The details of the program are specified in RCW 10.05, with the most onerous requirement being a two year chemical dependency or mental health treatment program. By statute, the person must remain crime free for a minimum period of five years before the case is dismissed. While a person can technically enter a deferred prosecution on just about any type of gross misdemeanor or misdemeanor offense, typically, people utilize the deferred prosecution on a DUI offense. The one catch is a person can only have one deferred prosecution on a DUI offense (or any RCW title 46 vehicle offense) in their entire life. So it is common for people to use their one deferred prosecution, and the two years of treatment, on a second or third DUI offense. While the deferred prosecution on a DUI offense will ultimately end in a dismissed charge if successfully completed, the Department of Licensing (DOL) still requires an ignition interlock on a person’s vehicle for a minimum of one year (or five or ten years, depending on the person’s criminal history). And even after the DUI is dismissed, it still counts as a prior DUI conviction for sentencing purposes if the person ever gets charged with another DUI. The DUI offense will also appear on the person’s driving record, for life, even after the court dismisses the charge.

Deferred Sentences
Deferred Sentences are available on any gross misdemeanor or misdemeanor offense under Washington law (except DUI and Physical Control) and are governed by RCW 3.66.067. Unlike a deferred prosecution, which has conditions set by statute that cannot be waived by the judge, the terms of a deferred sentence are left to the discretion of the judge. The only statutory requirement is that the length of the deferred sentence cannot be more than two years. A person cannot receive a deferred sentence on a charge of DUI or Physical Control, but they can if the charge is reduced (to say, a Reckless Driving or Negligent Driving). However, just as the case with deferred prosecution, DOL still treats a deferred sentence as a conviction. So it still goes on a person’s driving record and still imposes whatever driver’s license suspension would come if the sentence was suspended (not deferred). In other words, the deferred sentence is treated as a conviction in every conceivable way except that it does result in a dismissed charge.

Deferred Finding
A deferred finding is only available on infractions (like a speeding ticket). It is not available for a criminal offense. A deferred finding is governed by RCW 46.63.070(5) and allows an infraction to be deferred for a maximum of one year. A person is only allowed one deferred finding on a moving violation every seven years.

Stipulated Order of Continuance (or Pre-Trial Diversion Agreement)
A Stipulated Order of Continuance is a contract made between the defendant in a criminal case and the prosecutor. The agreement is a contract, and is not governed by statute like the deferrals above. So the terms of the contract can be negotiated by the defendant and the prosecuting attorney (including the length and treatment requirements). The judge is not a party to the contract so typically, a judge lacks the power to modify the contract. Because this form of deferral is made at the pre-trial stage of the case, before any plea or sentencing occurs, technically, the person entering this form of deferral can truthfully state they were never convicted of the offense. In Pierce and Kitsap Counties, a Stipulated Order of Continuance is referred to as a Pre-Trial Diversion Agreement. An example of this type of contract can be found here.

Regardless of which form of the above deferrals is used, often times a defendant is wrongfully informed that once the case is dismissed, the charge will be off their “record” and never be used against them. Yes, the charge is dismissed, so yes, the person is no longer guilty of the offense. However, unfortunately, private background check companies now pull their records directly from the court’s database. So even after a charge is dismissed, it often shows up on a person’s background check. I have discussed the background check mess situation we currently have in a prior blog post. While any form of deferral is still better than a criminal conviction, most people wrongfully assume that once a charge is dismissed, that it will never be used against them. This is just not the case. This is particularly true if their are immigration concerns or the offense involves domestic violence and their is a potential loss of firearms rights involved.

Accidentally selling marijuana to a minor in Washington could get you convicted of a felony

The Seattle Times had an article today about the Liquor Control Board’s sting operations attempting to catch marijuana store employees who sell to customers under twenty-one years of age (the legal age to possess marijuana in Washington). According to the Seattle Times, of the 22 stores targeted, 4 were caught selling to customers who were underage.

One of the things that caught my attention was the part where it said the employees could potentially face felony charges. This seemed quite a bit more severe than a store employee who accidentally sells alcohol to a minor. If the situation involves alcohol, not marijuana, the person could be charged with Furnishing Liquor to a Minor under RCW 66.44.270. A violation of Furnishing Liquor to a Minor is a gross misdemeanor. In King County, typically these types of cases are resolved with a diversion agreement where the person pays a fee of $150, completes a “Responsible Alcohol and Tobacco Sales” class put on by the Liquor Control Board, and the charge is eventually dismissed after a period time.

For marijuana, the penalty for inadvertently selling to someone under twenty one could potentially be a whole lot worse that a gross misdemeanor, and could even send the person to prison for a felony conviction. The reason for this lies in RCW 69.50.401, the law that makes it a felony to possess or sell a controlled substance. Prior to I-502 (the initiative that legalized marijuana in Washington), RCW 69.50.401 made it a felony to sell marijuana to anyone. I-502 amended RCW 69.50.401, so that there is now a section that states:

“The production, manufacture, processing, packaging, delivery, distribution, sale, or possession of marijuana in compliance with the terms set forth in RCW 69.50.360, 69.50.363, or 69.50.366 shall not constitute a violation of this section, this chapter, or any other provision of Washington state law.”

In other words, as long as you are complying with Liquor Control Board rules when you sell marijuana, you are not committing a crime. However, if you fail to follow the Liquor Control Board rules, you are committing a crime under RCW 69.50.360. Under RCW 69.50.360, selling marijuana to anyone, regardless of their age, would be a felony. So yes, it appears we do currently have a situation in Washington where selling alcohol to minors is a gross misdemeanor but selling marijuana to minors is a felony. It will be interesting to see of the Liquor Control Board refers the four store employees referenced in the article to the criminal prosecutor for felony charges.

Where does the fine amount on an infraction come from?

When a person receives an infraction, such as a speeding ticket, there is a fine amount listed on the face of this infraction. This fine is the maximum fine that can be assessed against the person for that particular infraction. Infractions can only be punished with a fine, not jail (like a criminal offense). So the maximum fine amount is the worst case scenario for an infraction.

For some infractions, the maximum fine amount is listed in the statute. For instance, RCW 46.61.525 outlines the elements of the infraction of Negligent Driving in the Second Degree, and it also states that a violation “is subject to a penalty of two hundred fifty dollars.” However, anyone who has ever received an infraction for Negligent Driving Second Degree knows that the maximum fine amount on the infraction was not listed as $250 but instead, $550. So why does the fine of $250 mandated by the statute increase up to $550?

RCW 3.62.090(1) and (2) both require additional fines on top of the base fine. Specifically, RCW 3.62.090(1), requires a public safety and education assessment of 70% of the fine amount. RCW 3.62.090(2) requires an additional public safety and education assessment, this one is 50% of whatever the public safety and education assessment is in subsection (1). And finally, RCW 46.63.110(7) and (8) add an additional $37. These extra fees do not apply to parking infractions and some only apply to vehicle related infractions.

So for Negligent Driving in the Second Degree, you take the $250 base fine, add 175 (.70 x 250), add 87.5 (.5 x 175), and add 37 = 549.50. The government apparently rounds this figure up to $550.

Again, keep in mind the $550 fine is the worst possible thing that could happen. If you hire a competent infraction attorney, the fine will likely be dramatically reduced (or dismissed entirely) and the infraction could be amended to one that does not affect your insurance rates.

If you’re curios, IRLJ 6.2 lists all in the infraction base fine amounts. If an infraction does not have a specific amount listed, IRLJ 6.2 says the default base fine is $42.

UPDATE: Why did the prosecutor not charge the cops for shooting Dustin Theoharis?

I previously wrote about why the King County Prosecuting attorney declined to file charges against the police officers who shot Dustin Theoharis. The prosecutor actually declined to file charges twice, once back in 2012, and a second time in February 2015, after taking account the new evidence that came to light in the civil litigation. If you want to see the testimony in the civil litigation that was considered, I obtained the following documents from the prosecuting attorney. These documents include the deposition of Dustin Theoharis, himself, as well as both of the officers who shot Theoharis, King County Sheriff’s Deputy Aaron Thompson and Department of Corrections Community Corrections Officer Kristopher Rongen.

  1. Installment Number 1
  2. Installment Number 2
  3. Installment Number 3
  4. Installment Number 4
  5. Installment Number 5

Installment Number 5, page 121, has Theoharis’s version of the events. Page 134 has the email from the prosecutor’s office that serves as the second decline to prosecutor memo. Would you have charged the police officers in light of this new testimony?