Potential Washington DUI Case Outcomes

Typically, there are four ways of resolving a criminal charge: Trial, Deferred Prosecution, Dismissal and Plea Negotiations.

Trial

Any person in Washington charged with a DUI has an absolute right to trial by either judge or jury. While the last thing many individuals would ever want to endure is sitting in the defendant's chair being judged by a jury of his/her peers, and a vast majority of DUI's in Washington are resolved by means other than trial, every person in this state has a right to one. Basically, there are two reasons why a person might elect to go to trial.

The first is the defendant has nothing to lose. There are times where the only offer by the prosecutor is to plead guilty as charged with the recommendation for the mandatory minimum penalties. Based on the accused having no criminal history and there are no aggravating circumstances that would lead them to believe that if they were convicted at trial the judge would impose nothing more than the prosecution's pre-trial offer, then the question becomes why not try the case? While the facts might not be in the defendant's favor, even if they are convicted, they will likely get nothing more than if they had plead guilty prior to trial.

Another reason why a person might want to go to trial is because there is such a lack of evidence in the prosecutor's case and the accused believes they cannot prove guilt beyond a reasonable doubt. This could be the situation when the facts to begin with were minimal or through pre-trial motions, key evidence (breath test, field tests, statements) were suppressed. In a fair number of cases when this situation exists, the prosecution realizes they have a weak case and may very well make an offer that is hard to pass up.

While going to trial is ultimately the decision of the accused, it incumbent on their attorney to discuss the benefits and potential hazards of a trial. Statistically, only about 5% of DUI cases go to trial every year in Washington.

Deferred Prosecution

Deferred prosecution is a diversionary program for people dependent on alcohol or other substances. The Washington State Legislature under RCW (Revised Code of Washington) 10.05 created a program for people who suffer from chemical addiction or mental health problems. If the person arrested for DUI is chemically dependent, a deferred prosecution may allow that person to stay out of jail, preserve their license, get the charge dismissed after 5 years as well as treat the underlying addiction.

After meeting with an experienced attorney and discussing their case and their history, the accused must be evaluated as alcohol or drug dependant by a state-certified alcohol agency. The dependency treatment is an intensive two year program. If there is this finding of dependency, then that person may petition the Court for entry of a deferred prosecution.

Deferred prosecution means that the case against you can be dropped eventually, but there are many requirements. First, the period of deferral is for five years. Two years of treatment followed by three years of law abiding behavior. During the entire five years the person must completely abstain from alcohol and non-prescribed drugs and have no criminal violations of law. The two years of treatment is broken into three phases. During the treatment, not only will the person be required to attend treatment but also attend two alcoholic anonymous (AA) or narcotic anonymous (NA) meetings per week and provide written verification to treatment. The court costs are typically high as the court probation will monitor the person the entire five years. While the person will preserve their driver's license (not a CDL) and not be required to obtain high risk insurance, they must have an an ignition interlock device for two years.

If a person enters a deferred prosecution program, it means they give up certain constitutional rights: the right to a trial, the right to hear and question opposing witnesses, the right to call witnesses, the right to testify or not to testify and the right to appeal. Upon entry of a deferred prosecution, the accused stipulates to the accuracy of the police report (which is included in the court file) and agrees this is the only evidence to be considered should the deferred be violated. Thus, if a person enters into a deferred prosecution program, and fails to comply with any of the conditions of the program, then the judge will simply read the police report and make a finding strictly on the contents contained within. This means that they will not have the opportunity to present any defense and almost certainly will be found guilty.

Deferred prosecution can be a very worthwhile experience for anyone arrested for DUI who is chemically dependent. In Washington State, a person can only enter into a deferred prosecution ONCE in their lifetime. If a defendant has previously completed one in a different state, that person is not eligible in the State of Washington. One should never decide to petition for a deferred prosecution until after they have met with an experienced DUI attorney and discussed their case and background in detail. Furthermore, a person who is not chemically dependent cannot apply for a deferred prosecution.

Plea Negotiations

For most people charged with a DUI in Washington, a very favorable resolution to their case is by way of a reduction to a lesser offense. By having a zealous attorney working the case through the criminal process and preparing the matter for trial (rather than simply pleading the client "as charged" at the first or second court appearance) substantially increases the chances of a reduction. Also, where the DUI charge is filed plays a significant role. In some jurisdictions, the prosecutor is typically willing to reduce the charge if it is a first offense with no aggravating circumstances. In other jurisdictions, however, the prosecutor takes a strong stance, unwilling to plea bargain even when the accused has no history. There are three different types of reductions that prosecutor's may offer during negotiations.

The first reduction is a below or no-test DUI. This type of reduction is for a defendant whose BAC reading was ABOVE .15 or for who refused the breath test. While it is technically viewed as a "reduction," it is still a DUI conviction and carries with it mandatory jail, fine, license suspension, ignition interlock, SR22 insurance and probation for up to five years.

Below DUI a prosecutor may offer a reduction to Reckless Driving (RCW 46.61.500). The elements of this charge are operating a motor vehicle in a reckless manner with a willful or wanton disregard for the safety of persons and/or property. This crime is still a gross misdemeanor (carrying a maximum sentence of a year in jail and a $5000 fine). Unlike DUI, there is no mandatory jail and no requirement for an ignition interlock. Instead of 5 years of probation for a DUI conviction, the maximum probation for Reckless Driving is two years. A conviction carries a mandatory thirty day license suspension, but the driver may continue to drive during that period with an occupational/restricted license. Since there is a license suspension, there is a requirement for high risk (SR22) for a period of three years after the person is eligible to reinstate.

Below this is Negligent Driving- First Degree (RCW 46.61.5249). The elements of Negligent Driving are operating a motor vehicle on a public roadway in a negligent manner likely to endanger persons and/or property and while exhibiting the affects of having recently consumed alcohol or drugs. This crime is a simple misdemeanor (maximum sentence of 90 days and a $1000 fine) and carries no mandatory jail, license suspension, ignition interlock and SR22 insurance. The maximum amount of probation for this offense is two years. While a person would not lose his or her license as a result of a conviction for Negligent Driving, he or she still may face a license suspension and SR-22 insurance if they lose the department of licensing administrative hearing.

If a defendant pleads guilty to either Reckless Driving or Negligent Driving by means of an amendment of an original DUI charge, they have not been convicted of a DUI. But if that person is subsequently arrested and convicted for a new DUI charge within the next 7 years, the amended charge is considered a prior offense for mandatory minimum penalty enhancements on the new charge.

In many cases, plea bargains are the very best option for the accused person and are generally considered a successful resolution to the criminal matter. It must be noted, however, that a reduction to a lesser offense is not a certainty and the facts of the case, the prior history of the accused, where the criminal charges are filed and the skills and expertise of the attorney play a major role in whether a reduction is ever offered.

Dismissal

In order to achieve an outright dismissal of a DUI charge, there needs to be unique circumstances. Simply put, it is not very common. There needs to be some form of compelling constitutional or evidentiary issue that causes the prosecutor to agree to dismiss the charge. Anyone facing a DUI charge in Washington would be remiss in believing there is a strong possibility of getting their case dismissed.

That being said, I have had clients who have had their DUI charge dismissed. Alternatively, I have had others who have had their DUI amended to a simple traffic infraction. In every case I handle, my goal is to get the best possible result. If there is a way to get the case dismissed (or down to a traffic infraction), I vigorously pursue it. Keep in mind, however, that this usually does not happen and more frequently the successful resolution of the criminal matter is by means of a reduction listed above.