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:
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 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.
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.