BILL REQ. #:  H-0755.2 

Read first time 01/25/2007.   Referred to Committee on Judiciary.

     AN ACT Relating to deferred prosecutions for persons with mental or developmental disabilities; amending RCW 10.05.010, 10.05.015, 10.05.020, 10.05.030, 10.05.040, 10.05.050, 10.05.060, 10.05.070, 10.05.090, 10.05.100, 10.05.120, and 10.05.160; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that:
     (1) A significant number of individuals with mental or developmental disabilities who are in need of treatment or habilitative supports and services are inappropriately detained in correctional facilities; and
     (2) Deferred prosecution is an alternative to punishment through which individuals who will not unreasonably endanger the public, including but not limited to individuals with mental or developmental disabilities, may obtain treatment, habilitation, or both, in lieu of confinement.

Sec. 2   RCW 10.05.010 and 2002 c 219 s 6 are each amended to read as follows:
     (1) 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.
     (2) 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, unless a mental or developmental disability is the basis for the subsequent deferred prosecution. Separate offenses committed more than seven days apart may not be consolidated in a single program.
     (3) A person charged with a misdemeanor or a gross misdemeanor under chapter 9A.42 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, unless a mental or developmental disability is the basis for the subsequent deferred prosecution.

Sec. 3   RCW 10.05.015 and 1985 c 352 s 5 are each amended to read as follows:
     At the time of arraignment a person charged with ((a violation of RCW 46.61.502 or 46.61.504)) any offense eligible for deferred prosecution under this chapter may be given a statement by the court that explains the availability, operation, and effects of the deferred prosecution program.

Sec. 4   RCW 10.05.020 and 2002 c 219 s 7 are each amended to read as follows:
     (1) Except as provided in subsection (2) of this section, 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, including but not limited to mental or developmental disabilities, for which the person is in need of treatment and unless treated the probability of future recurrence 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)) disability 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, a regional support network, or a regional support network contracted provider if the petition alleges a mental ((problem)) disability, or by the department of social and health services division of developmental disabilities if the petition alleges a developmental disability and the person is eligible to receive services from the division of developmental disabilities.
     (2) In the case of a petitioner charged with a misdemeanor or gross misdemeanor under chapter 9A.42 RCW, the petitioner shall allege under oath in the petition that the petitioner is the natural or adoptive parent of the alleged victim; that the wrongful conduct charged is the result of parenting problems for which the petitioner is in need of services; that the petitioner is in need of child welfare services under chapter 74.13 RCW to improve his or her parenting skills in order to better provide his or her child or children with the basic necessities of life; that the petitioner wants to correct his or her conduct to reduce the likelihood of harm to his or her minor children; that in the absence of child welfare services the petitioner may be unable to reduce the likelihood of harm to his or her minor children; and that the petitioner has cooperated with the department of social and health services to develop a plan to receive appropriate child welfare services; along with a statement that the person agrees to pay the cost of the services if he or she is financially able to do so. The petition shall also contain a case history and a written service plan from the department of social and health services.
     (3) 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 acknowledgment of his or her rights; (b) an acknowledgment 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 acknowledgment 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, or in the case of a petitioner charged under chapter 9A.42 RCW, sincerely believes that he or she does not need child welfare services.
     (4) 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.

Sec. 5   RCW 10.05.030 and 2002 c 219 s 8 are each amended to read as follows:
     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 program 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, to an approved mental health center, if the petition alleges a mental problem, including but not limited to a mental or developmental disability, or the department of social and health services if the petition is brought under RCW 10.05.020(2).

Sec. 6   RCW 10.05.040 and 2002 c 219 s 9 are each amended to read as follows:
     The ((facility)) program to which such person is referred, or the department of social and health services if the petition is brought under RCW 10.05.020(2), 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, or if no child welfare services are provided, there is a probability that similar misconduct will occur in the future;
     (3) Whether extensive and long term treatment ((is)) or habilitation supports and services are required;
     (4) Whether effective treatment or child welfare services for the person's problem are available; and
     (5) Whether the person is amenable to treatment or habilitation supports and services or willing to cooperate with child welfare services.

Sec. 7   RCW 10.05.050 and 2002 c 219 s 10 are each amended to read as follows:
     (1) The ((facility)) program, or the department of social and health services if the petition is brought under RCW 10.05.020(2), 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, habilitation supports and services, or the implementation of a child welfare service plan, it shall also recommend a treatment or service plan setting out:
     (a) The type;
     (b) Nature;
     (c) Length;
     (d) A treatment or service time schedule; and
     (e) Approximate cost of the treatment or child welfare services.
     (2) In the case of a child welfare service plan, the plan shall be designed in a manner so that a parent who successfully completes the plan will not be likely to withhold the basic necessities of life from his or her child.
     (3) The report with the treatment or service plan shall be filed with the court and a copy given to the petitioner and petitioner's counsel. A copy of the treatment or service plan shall be given to the prosecutor by petitioner's counsel at the request of the prosecutor. The evaluation facility, or the department of social and health services if the petition is brought under RCW 10.05.020(2), making the written report shall append to the report a commitment by the treatment ((facility)) program or the department of social and health services that it will provide the treatment or child welfare services in accordance with this chapter. The facility or the service provider 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 or child welfare service plan proposed and (b) the petitioner's progress or failure in treatment or child welfare services. These statements shall be made as a declaration by the person who is personally responsible for providing the treatment or services.

Sec. 8   RCW 10.05.060 and 1994 c 275 s 17 are each amended to read as follows:
     If the report recommends treatment, habilitation supports and services, or both, the court shall examine the treatment plan, habilitation plan, or both. 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, habilitation services, or both, 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.

Sec. 9   RCW 10.05.070 and 1985 c 352 s 10 are each amended to read as follows:
     When treatment, habilitation supports and services, or both is either not recommended or not approved by the judge, or the petitioner declines to accept the treatment or habilitation plan, the petitioner shall be arraigned on the charge.

Sec. 10   RCW 10.05.090 and 1997 c 229 s 1 are each amended to read as follows:
     (1) 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 or habilitation 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 or habilitation 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 or habilitation plan ((or)), be removed from deferred prosecution, or be referred for detention by a mental health professional pursuant to chapter 71.05 RCW.
     (2)(a) If the petitioner is civilly committed under chapter 71.05 RCW, the decision of whether to remove the petitioner from deferred prosecution shall be continued until the petitioner is determined no longer to meet the criteria for civil commitment under chapter 71.05 RCW.
     (b) Once a determination has been made under chapter 71.05 RCW that the petitioner no longer meets the criteria for civil commitment, a hearing shall be held 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 or habilitation 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:
     (i) The petitioner continue on the original or an amended treatment or habilitation plan;
     (ii) The petitioner be removed from deferred prosecution; or
     (iii) The charges pending against the petitioner be dismissed if the period during which the petitioner was civilly committed under chapter 71.05 RCW exceeds the length of the treatment or habilitation program.
     (3) 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.

Sec. 11   RCW 10.05.100 and 1998 c 208 s 2 are each amended to read as follows:
     (1) Except as provided in subsection (2) of this section, 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.
     (2) If the basis of the deferred prosecution is a mental or developmental disability and the 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:
     (a) Remove the petitioner's docket from the deferred prosecution file and enter judgment pursuant to RCW 10.05.020; or
     (b) Order a hearing to be held to determine whether the petitioner should be removed from the deferred prosecution program or have his or her treatment or habilitation plan amended. At the hearing, the petitioner shall have the right to present evidence on his or her own behalf.

Sec. 12   RCW 10.05.120 and 2003 c 220 s 1 are each amended to read as follows:
     (1) Except as provided in RCW 10.05.090, three years after receiving proof of successful completion of the two-year treatment program, and following proof to the court that the petitioner has complied with the conditions imposed by the court following successful completion of the two-year treatment program, but not before five years following entry of the order of deferred prosecution pursuant to a petition brought under RCW 10.05.020(1), the court shall dismiss the charges pending against the petitioner.
     (2) When a deferred prosecution is ordered pursuant to a petition brought under RCW 10.05.020(2) and the court has received proof that the petitioner has successfully completed the child welfare service plan, or the plan has been terminated because the alleged victim has reached his or her majority and there are no other minor children in the home, the court shall dismiss the charges pending against the petitioner: PROVIDED, That in any case where the petitioner's parental rights have been terminated with regard to the alleged victim due to abuse or neglect that occurred during the pendency of the deferred prosecution, the termination shall be per se evidence that the petitioner did not successfully complete the child welfare service plan.

Sec. 13   RCW 10.05.160 and 1999 c 143 s 44 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 deferred prosecution has been granted to the defendant, unless a mental or developmental disability is the basis for the subsequent deferred prosecution;
     (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 program.