H-1941.1

HOUSE BILL 1817

ByRepresentative Goodman

AN ACT Relating to eligibility and requirements for deferred prosecutions; amending RCW 10.05.010, 10.05.015, 10.05.020, 10.05.020, 10.05.030, 10.05.030, 10.05.040, 10.05.050, 10.05.060, 10.05.090, 10.05.100, 10.05.120, 10.05.140, 10.05.150, 10.05.155, and 10.05.170; providing an effective date; and providing an expiration date.

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

Sec. 1. RCW 10.05.010 and 2019 c 263 s 701 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. A person charged with a misdemeanor or gross misdemeanor shall not be eligible for a deferred prosecution unless the court makes specific findings pursuant to RCW 10.05.020.

(2) A person charged with a ((traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW, or a misdemeanor or gross misdemeanor domestic violence offense,))violation of RCW 46.61.502 or 46.61.504 shall not be eligible for a deferred prosecution ((program)) unless the court makes specific findings pursuant to RCW 10.05.020. A person ((may not participate in a deferred prosecution program for a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW if he or she has participated in a deferred prosecution program for a prior traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW, and a person may not participate in a deferred prosecution program for a misdemeanor or gross misdemeanor domestic violence offense if he or she has participated in a deferred prosecution program for a prior domestic violence offense))who petitions the court for the deferred prosecution and participates in the deferred prosecution under this chapter for his or her first violation of RCW 46.61.502 or 46.61.504 is eligible to petition the court for a second deferred prosecution for a violation of RCW 46.61.502 or 46.61.504 if the person remains eligible, specific findings are made pursuant to RCW 10.05.020, and the person has no prior out-of-state convictions defined as a "prior offense" under RCW 46.61.5055. 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.

(4) A person is not eligible for a deferred prosecution ((program)) if the misdemeanor or gross misdemeanor domestic violence offense was originally charged as a felony offense in superior court.

Sec. 2. RCW 10.05.015 and 2019 c 263 s 702 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 or a misdemeanor or gross misdemeanor domestic violence offense may be given a statement by the court that explains the availability, operation, and effects of the deferred prosecution ((program)).

Sec. 3. RCW 10.05.020 and 2019 c 263 s 703 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 substance use disorders or mental ((problems))health disorders or domestic violence behavior problems 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 if financially able to do so. The petition shall also contain a case history and written assessment prepared by an approved ((substance use disorder treatment program))behavioral health agency, approved for mental health services and substance use disorder services, as designated in chapter 71.24 RCW ((if the petition alleges a substance use disorder, by an approved mental health center if the petition alleges a mental problem,)) or by a Washington state-certified domestic violence treatment provider pursuant to chapter 26.50 RCW ((if the petition alleges a domestic violence behavior problem)).

(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: (i) Sincerely believes that he or she is innocent of the charges; (ii) sincerely believes that he or she does not, in fact, suffer from ((alcoholism, drug addiction, mental problems))a substance use disorder, a mental health disorder, or domestic violence behavior problems; or (iii) 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. 4. RCW 10.05.020 and 2021 c 215 s 115 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 substance use disorders or mental ((problems))health disorders or domestic violence behavior problems 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 if financially able to do so. The petition shall also contain a case history and written assessment prepared by an approved ((substance use disorder treatment program))behavioral health agency, approved for mental health services and substance use disorder services, as designated in chapter 71.24 RCW ((if the petition alleges a substance use disorder, by an approved mental health center if the petition alleges a mental problem,)) or by a Washington state-certified domestic violence treatment provider pursuant to RCW 43.20A.735 ((if the petition alleges a domestic violence behavior problem)).

(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: (i) Sincerely believes that he or she is innocent of the charges; (ii) sincerely believes that he or she does not, in fact, suffer from ((alcoholism, drug addiction, mental problems))a substance use disorder, a mental health disorder, or domestic violence behavior problems; or (iii) 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 2019 c 263 s 704 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:

(1) ((An approved substance use disorder treatment program))A Washington state-approved behavioral health agency, approved for mental health services and substance use disorder services, as designated in chapter 71.24 RCW if the petition alleges a substance use disorder;

(2) An approved mental health center if the petition alleges a mental ((problem))health disorder;

(3) The department of ((social and)) health ((services)) if the petition is brought under RCW 10.05.020(2); or

(4) An approved state-certified domestic violence treatment provider pursuant to chapter 26.50 RCW if the petition alleges a domestic violence behavior problem.

Sec. 6. RCW 10.05.030 and 2021 c 215 s 116 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:

(1) ((An approved substance use disorder treatment program))A Washington state-approved behavioral health agency, approved for mental health services and substance use disorder services, as designated in chapter 71.24 RCW if the petition alleges a substance use disorder;

(2) An approved mental health center if the petition alleges a mental ((problem))health disorder;

(3) The department of ((social and)) health ((services)) if the petition is brought under RCW 10.05.020(2); or

(4) An approved state-certified domestic violence treatment provider pursuant to RCW 43.20A.735 if the petition alleges a domestic violence behavior problem.

Sec. 7. RCW 10.05.040 and 2018 c 201 s 9005 are each amended to read as follows:

The 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 required;

(4) Whether effective treatment or child welfare services for the person's problem are available; and

(5) Whether the person is ((amenable)): (a) Amenable to treatment as demonstrated by (i) completion of residential treatment; (ii) completion of a minimum of 18 hours of intensive outpatient treatment, for substance use disorder petitions; (iii) completion of a minimum of six mental health sessions, for mental health disorder petitions; or (iv) completion of a minimum of six domestic violence treatment sessions for domestic violence petitions; or (b) willing to cooperate with child welfare services. The requirement for completing a minimum number of sessions may be waived if the court finds good cause.

Sec. 8. RCW 10.05.050 and 2018 c 201 s 9006 are each amended to read as follows:

(1) The 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 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 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))monthly 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. 9. RCW 10.05.060 and 2009 c 135 s 1 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 filed with the court. 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))consistent with the requirements of RCW 46.01.260.

Sec. 10. RCW 10.05.090 and 2010 c 269 s 10 are each amended to read as follows:

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 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 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 plan or be removed from deferred prosecution. 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:

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.

Sec. 12. RCW 10.05.120 and 2019 c 263 s 705 are each amended to read as follows:

(1) Three years after receiving proof of successful completion of the ((two-year))approved treatment ((program))plan, 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))approved treatment ((program))plan, 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.

(((3) When a deferred prosecution is ordered for a petition brought under RCW 10.05.020(1) involving a domestic violence behavior problem and the court has received proof that the petitioner has successfully completed the domestic violence treatment plan, the court shall dismiss the charges pending against the petitioner.))

Sec. 13. RCW 10.05.140 and 2019 c 263 s 706 are each amended to read as follows:

(1) As a condition of granting a deferred prosecution petition for a violation of RCW 46.61.502 or 46.61.504, 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. As a condition of granting a deferred prosecution petition on any ((alcohol-dependency))substance use disorder-based case, the court shall also order the installation of an ignition interlock under RCW 46.20.720. The required periods of use of the interlock shall be not less than the periods provided for in RCW 46.20.720. 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. To help ensure continued sobriety and reduce the likelihood of reoffense, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for ((alcoholism or drugs))substance use disorder, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution ((program)) upon violation of the deferred prosecution order.

(2) As a condition of granting a deferred prosecution petition for a case involving a domestic violence behavior problem:

(a) The court shall order the petitioner not to possess firearms and order the petitioner to surrender firearms under RCW 9.41.800; and

(b) The court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160. In addition, to help ensure continued sobriety and reduce the likelihood of reoffense in co-occurring domestic violence and substance ((abuse))use disorder or mental health disorder cases, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for ((alcoholism or drugs))substance use disorder, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution ((program)) upon violation of the deferred prosecution order.

Sec. 14. RCW 10.05.150 and 2016 sp.s. c 29 s 527 are each amended to read as follows:

(1) A deferred prosecution ((program)) for ((alcoholism))either substance use disorder or mental health disorder shall be for a two-year period and shall include, but not be limited to, the following requirements:

(((1)))(a) Total abstinence from alcohol and all other nonprescribed mind-altering drugs;

(((2) Participation in an intensive inpatient or intensive outpatient program in a state-approved substance use disorder treatment program;

(8)))(b) All treatment within the purview of this section shall occur within or be approved by a Washington state-approved substance use disorder treatment program as described in chapter ((70.96A))71.24 RCW;

(((9)))(c) Signature of the petitioner agreeing to the terms and conditions of the treatment program;

(b) Completion of individual or group mental health services.

Sec. 15. RCW 10.05.155 and 2019 c 263 s 708 are each amended to read as follows:

A deferred prosecution ((program)) for domestic violence behavior, or domestic violence co-occurring with substance abuse or mental health, must include, but is not limited to, the following requirements:

(1) Completion of a risk assessment;

(2) Participation in the level of treatment recommended by the program as outlined in the current treatment plan;

(3) Compliance with the contract for treatment;

(4) Participation in any ancillary or co-occurring treatments that are determined to be necessary for the successful completion of the domestic violence intervention treatment including, but not limited to, mental health or substance use treatment;

(5) Domestic violence intervention treatment within the purview of this section to be completed with a state-certified domestic violence intervention treatment program;

(6) Signature of the petitioner agreeing to the terms and conditions of the treatment program;

(7) Proof of compliance with any active order to surrender weapons issued in this program or related civil protection orders or no-contact orders.

Sec. 16. RCW 10.05.170 and 1991 c 247 s 2 are each amended to read as follows:

As a condition of granting deferred prosecution, the court may order supervision of the petitioner during the period of deferral and may levy a monthly assessment upon the petitioner as provided in RCW 10.64.120. In a jurisdiction with a probation department, the court may appoint the probation department to supervise the petitioner. In a jurisdiction without a probation department, the court may appoint an appropriate person or agency to supervise the petitioner. A supervisor appointed under this section shall be required to do at least the following:

(1) If the charge for which deferral is granted relates to operation of a motor vehicle, at least once every ((six))three months request ((from the department of licensing)) an abstract of the petitioner's driving record; ((and))

(2) At least once every month make contact with the petitioner ((or with any agency to which the petitioner has been directed for treatment as a part of the deferral))until treatment is completed;

(4) Report known violations of supervision or law and noncompliance with conditions of the deferred prosecution to the court within five business days or as soon as practicable.

NEW SECTION.  Sec. 18. Sections 4 and 6 of this act take effect July 1, 2022.

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