H-1514.1
SUBSTITUTE HOUSE BILL 1104
State of Washington 68th Legislature 2023 Regular Session
By House Transportation (originally sponsored by Representatives
Goodman, Wylie, Davis, and Ormsby)
READ FIRST TIME 02/24/23.
1 AN ACT Relating to eligibility and requirements for deferred
2 prosecutions; amending RCW 10.05.010, 10.05.015, 10.05.020,
3 10.05.030, 10.05.040, 10.05.050, 10.05.060, 10.05.090, 10.05.100,
4 10.05.120, 10.05.140, 10.05.150, 10.05.155, 10.05.170, and 9.94A.525;
5 adding a new section to chapter 10.05 RCW; and providing an effective
6 date.
7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
8 Sec. 1. RCW 10.05.010 and 2019 c 263 s 701 are each amended to
9 read as follows:
10 (1) In a court of limited jurisdiction a person charged with a
11 misdemeanor or gross misdemeanor may petition the court to be
12 considered for a deferred prosecution ((program)). The petition shall
13 be filed with the court at least seven days before the date set for
14 trial but, upon a written motion and affidavit establishing good
15 cause for the delay and failure to comply with this section, the
16 court may waive this requirement subject to the defendant's
17 reimbursement to the court of the witness fees and expenses due for
18 subpoenaed witnesses who have appeared on the date set for trial. A
19 person charged with a misdemeanor or gross misdemeanor shall not be
20 eligible for a deferred prosecution unless the court makes specific
21 findings pursuant to RCW 10.05.020.
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 1 (2) A person charged with a ((traffic infraction, misdemeanor, or
2 gross misdemeanor under Title 46 RCW, or a misdemeanor or gross
3 misdemeanor domestic violence offense,)) violation of RCW 46.61.502
4 or 46.61.504 shall not be eligible for a deferred prosecution
5 ((program)) unless the court makes specific findings pursuant to RCW
6 10.05.020. A person ((may not participate in a deferred prosecution
7 program for a traffic infraction, misdemeanor, or gross misdemeanor
8 under Title 46 RCW if he or she has participated in a deferred
9 prosecution program for a prior traffic infraction, misdemeanor, or
10 gross misdemeanor under Title 46 RCW, and a person may not
11 participate in a deferred prosecution program for a misdemeanor or
12 gross misdemeanor domestic violence offense if he or she has
13 participated in a deferred prosecution program for a prior domestic
14 violence offense)) who petitions the court for the deferred
15 prosecution and participates in the deferred prosecution under this
16 chapter for his or her first violation of RCW 46.61.502 or 46.61.504
17 is eligible to petition the court for a second deferred prosecution
18 for the person's next violation of RCW 46.61.502 or 46.61.504 when
19 the person is assessed as eligible for treatment pursuant to RCW
20 10.05.020(1), specific findings are made pursuant to RCW
21 10.05.020(4), and the person has no prior out-of-state convictions
22 defined as a "prior offense" under RCW 46.61.5055. Separate offenses
23 committed more than seven days apart may not be consolidated in a
24 single program.
25 (3) A person charged with a misdemeanor or a gross misdemeanor
26 under chapter 9A.42 RCW shall not be eligible for a deferred
27 prosecution ((program)) unless the court makes specific findings
28 pursuant to RCW 10.05.020. Such person shall not be eligible for a
29 deferred prosecution ((program)) more than once.
30 (4) A person is not eligible for a deferred prosecution
31 ((program)) if the misdemeanor or gross misdemeanor domestic violence
32 offense was originally charged as a felony offense in superior court.
33 (5) A person may petition a court for a second deferred
34 prosecution while still under the jurisdiction of a court for the
35 person's first deferred prosecution; however, the first deferred
36 prosecution shall be revoked prior to the entry of the second
37 deferred prosecution.
38 (6) A person may not be on two deferred prosecutions at the same
39 time unless separate offenses are committed within seven days of each
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1 other and the person petitions to consolidate each offense into a
2 single deferred prosecution.
3 (7) A person charged with a misdemeanor or gross misdemeanor for
4 a violation of RCW 46.61.502 or 46.61.504 who does not participate in
5 a deferred prosecution for his or her first violation of RCW
6 46.61.502 or 46.61.504 remains eligible to petition the court for a
7 deferred prosecution pursuant to the terms of this section and
8 specific findings made under RCW 10.05.020. Such person shall not be
9 eligible for a deferred prosecution more than once.
10 Sec. 2. RCW 10.05.015 and 2019 c 263 s 702 are each amended to
11 read as follows:
12 At the time of arraignment a person charged with a violation of
13 RCW 46.61.502 or 46.61.504 or a misdemeanor or gross misdemeanor
14 domestic violence offense may be given a statement by the court that
15 explains the availability, operation, and effects of the deferred
16 prosecution ((program)).
17 Sec. 3. RCW 10.05.020 and 2021 c 215 s 115 are each amended to
18 read as follows:
19 (1) Except as provided in subsection (2) of this section, the
20 petitioner shall allege under oath in the petition that the wrongful
21 conduct charged is the result of or caused by substance use disorders
22 or mental ((problems)) health disorders or domestic violence behavior
23 problems for which the person is in need of treatment and unless
24 treated the probability of future recurrence is great, along with a
25 statement that the person agrees to pay the cost of a diagnosis and
26 treatment of the alleged problem or problems if financially able to
27 do so. The petition shall also contain a case history and written
28 assessment prepared by an approved ((substance use disorder treatment
29 program)) behavioral health agency, approved for mental health
30 services or substance use disorder services, as designated in chapter
31 71.24 RCW ((if the petition alleges a substance use disorder, by an
32 approved mental health center if the petition alleges a mental
33 problem,)) or by a state-certified domestic violence treatment
34 provider pursuant to RCW 43.20A.735 ((if the petition alleges a
35 domestic violence behavior problem)).
36 (2) In the case of a petitioner charged with a misdemeanor or
37 gross misdemeanor under chapter 9A.42 RCW, the petitioner shall
38 allege under oath in the petition that the petitioner is the natural
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 1 or adoptive parent of the alleged victim; that the wrongful conduct
2 charged is the result of parenting problems for which the petitioner
3 is in need of services; that the petitioner is in need of child
4 welfare services under chapter 74.13 RCW to improve his or her
5 parenting skills in order to better provide his or her child or
6 children with the basic necessities of life; that the petitioner
7 wants to correct his or her conduct to reduce the likelihood of harm
8 to his or her minor children; that in the absence of child welfare
9 services the petitioner may be unable to reduce the likelihood of
10 harm to his or her minor children; and that the petitioner has
11 cooperated with the department of ((social and health services))
12 children, youth, and families to develop a plan to receive
13 appropriate child welfare services; along with a statement that the
14 person agrees to pay the cost of the services if he or she is
15 financially able to do so. The petition shall also contain a case
16 history and a written service plan from the department of ((social
17 and health services)) children, youth, and families.
18 (3) Before entry of an order deferring prosecution, a petitioner
19 shall be advised of his or her rights as an accused and execute, as a
20 condition of receiving treatment, a statement that contains: (a) An
21 acknowledgment of his or her rights; (b) an acknowledgment and waiver
22 of the right to testify, the right to a speedy trial, the right to
23 call witnesses to testify, the right to present evidence in his or
24 her defense, and the right to a jury trial; (c) a stipulation to the
25 admissibility and sufficiency of the facts contained in the written
26 police report; and (d) an acknowledgment that the statement will be
27 entered and used to support a finding of guilty if the court finds
28 cause to revoke the order granting deferred prosecution. The
29 petitioner shall also be advised that he or she may, if he or she
30 proceeds to trial and is found guilty, be allowed to seek suspension
31 of some or all of the fines and incarceration that may be ordered
32 upon the condition that he or she seek treatment and, further, that
33 he or she may seek treatment from public and private agencies at any
34 time without regard to whether or not he or she is found guilty of
35 the offense charged. He or she shall also be advised that the court
36 will not accept a petition for deferred prosecution from a person
37 who: (i) Sincerely believes that he or she is innocent of the
38 charges; (ii) sincerely believes that he or she does not, in fact,
39 suffer from ((alcoholism, drug addiction, mental problems)) a
40 substance use disorder, a mental health disorder, or domestic
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 1 violence behavior problems; or (iii) in the case of a petitioner
2 charged under chapter 9A.42 RCW, sincerely believes that he or she
3 does not need child welfare services.
4 (4) Before entering an order deferring prosecution, the court
5 shall make specific findings that: (a) The petitioner has stipulated
6 to the admissibility and sufficiency of the facts as contained in the
7 written police report; (b) the petitioner has acknowledged the
8 admissibility of the stipulated facts in any criminal hearing on the
9 underlying offense or offenses held subsequent to revocation of the
10 order granting deferred prosecution; (c) the petitioner has
11 acknowledged and waived the right to testify, the right to a speedy
12 trial, the right to call witnesses to testify, the right to present
13 evidence in his or her defense, and the right to a jury trial; and
14 (d) the petitioner's statements were made knowingly and voluntarily.
15 Such findings shall be included in the order granting deferred
16 prosecution.
17 Sec. 4. RCW 10.05.030 and 2021 c 215 s 116 are each amended to
18 read as follows:
19 The arraigning judge upon consideration of the petition and with
20 the concurrence of the prosecuting attorney may continue the
21 arraignment and refer such person for a diagnostic investigation and
22 evaluation to:
23 (1) ((An approved substance use disorder treatment program)) A
24 state-approved behavioral health agency, approved for substance use
25 disorder services, as designated in chapter 71.24 RCW if the petition
26 alleges a substance use disorder;
27 (2) ((An approved mental health center)) A state-approved
28 behavioral health agency, approved for mental health services, as
29 designated in chapter 71.24 RCW, if the petition alleges a mental
30 ((problem)) health disorder;
31 (3) The department of ((social and health services)) children,
32 youth, and families if the petition is brought under RCW
33 10.05.020(2); or
34 (4) An approved state-certified domestic violence treatment
35 provider pursuant to RCW 43.20A.735 if the petition alleges a
36 domestic violence behavior problem.
37 Sec. 5. RCW 10.05.040 and 2018 c 201 s 9005 are each amended to
38 read as follows:
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 1 The program to which such person is referred, or the department
2 of ((social and health services)) children, youth, and families if
3 the petition is brought under RCW 10.05.020(2), shall conduct an
4 investigation and examination to determine:
5 (1) Whether the person suffers from the problem described;
6 (2) Whether the problem is such that if not treated, or if no
7 child welfare services are provided, there is a probability that
8 similar misconduct will occur in the future;
9 (3) Whether extensive and long term treatment is required;
10 (4) Whether effective treatment or child welfare services for the
11 person's problem are available; and
12 (5) Whether the person is ((amenable)): (a) Amenable to treatment
13 as demonstrated by (i) completion of residential treatment; (ii)
14 completion of a minimum of 18 hours of intensive outpatient
15 treatment, for substance use disorder petitions; (iii) completion of
16 a minimum of six mental health sessions, for mental health disorder
17 petitions; or (iv) completion of a minimum of six domestic violence
18 treatment sessions for domestic violence petitions; or (b) willing to
19 cooperate with child welfare services. The requirement for completing
20 a minimum number of sessions may be waived if the court finds good
21 cause.
22 Sec. 6. RCW 10.05.050 and 2018 c 201 s 9006 are each amended to
23 read as follows:
24 (1) The program, or the department of ((social and health
25 services)) children, youth, and families if the petition is brought
26 under RCW 10.05.020(2), shall make a written report to the court
27 stating its findings and recommendations after the examination
28 required by RCW 10.05.040. If its findings and recommendations
29 support treatment or the implementation of a child welfare service
30 plan, it shall also recommend a treatment or service plan setting
31 out:
32 (a) The type;
33 (b) Nature;
34 (c) Length;
35 (d) A treatment or service time schedule; and
36 (e) Approximate cost of the treatment or child welfare services.
37 (2) In the case of a child welfare service plan, the plan shall
38 be designed in a manner so that a parent who successfully completes
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 1 the plan will not be likely to withhold the basic necessities of life
2 from his or her child.
3 (3) The report with the treatment or service plan shall be filed
4 with the court and a copy given to the petitioner and petitioner's
5 counsel. A copy of the treatment or service plan shall be given to
6 the prosecutor by petitioner's counsel at the request of the
7 prosecutor. The evaluation facility, or the department of ((social
8 and health services)) children, youth, and families if the petition
9 is brought under RCW 10.05.020(2), making the written report shall
10 append to the report a commitment by the treatment program or the
11 department of ((social and health services)) children, youth, and
12 families that it will provide the treatment or child welfare services
13 in accordance with this chapter. The facility or the service provider
14 shall agree to provide the court with a statement ((every three
15 months for the first year and every six months for the second year))
16 monthly regarding (a) the petitioner's cooperation with the treatment
17 or child welfare service plan proposed and (b) the petitioner's
18 progress or failure in treatment or child welfare services. These
19 statements shall be made as a declaration by the person who is
20 personally responsible for providing the treatment or services.
21 Sec. 7. RCW 10.05.060 and 2009 c 135 s 1 are each amended to
22 read as follows:
23 If the report recommends treatment, the court shall examine the
24 treatment plan. If it approves the plan and the petitioner agrees to
25 comply with its terms and conditions and agrees to pay the cost
26 thereof, if able to do so, or arrange for the treatment, an entry
27 shall be made upon the person's court docket showing that the person
28 has been accepted for deferred prosecution. A copy of the treatment
29 plan shall be filed with the court. If the charge be one that an
30 abstract of the docket showing the charge, the date of the violation
31 for which the charge was made, and the date of petitioner's
32 acceptance is required to be sent to the department of licensing, an
33 abstract shall be sent, and the department of licensing shall make an
34 entry of the charge and of the petitioner's acceptance for deferred
35 prosecution on the department's driving record of the petitioner. The
36 entry is not a conviction for purposes of Title 46 RCW. Upon receipt
37 of the abstract of the docket, the department shall issue the
38 petitioner a probationary license in accordance with RCW 46.20.355,
39 and the petitioner's driver's license shall be on probationary status
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 1 for five years from the date of the violation that gave rise to the
2 charge. The department shall maintain the record ((for ten years from
3 date of entry of the order granting deferred prosecution)) consistent
4 with the requirements of RCW 46.01.260.
5 Sec. 8. RCW 10.05.090 and 2010 c 269 s 10 are each amended to
6 read as follows:
7 If a petitioner, who has been accepted for a deferred
8 prosecution, fails or neglects to carry out and fulfill any term or
9 condition of the petitioner's treatment plan or any term or condition
10 imposed in connection with the installation of an interlock or other
11 device under RCW 46.20.720, the facility, center, institution, or
12 agency administering the treatment or the entity