DEFERRED PROSECUTION Rule and Forms

DEFERRED PROSECUTION

Rule and Forms

The Local Rules for the District Court of Spokane County, Washington apply to the Cheney Municipal Court. (LARLJ 2 Local Rules for the District Court of Spokane County, Washington).

SPOKANE COUNTY DISTRICT COURT III CRIMINAL RULES LCRrLJ 3.3 TIME FOR TRIAL

(k) Deferred Prosecution

(1) (A) Petition for Deferred Prosecution under Section l0.05 of the Revised Code of Washington, shall be filed fourteen (14) days before the date set for trial on forms approved by the Court.

(B) The written assessment prepared by an approved treatment facility shall be accompanied by a recommendation from the Probation Office, or such other Court Appointee authorized under Chapter 10.05 of the Revised Code of Washington.

(2) When the Court denies the Petition for a Deferred Prosecution, timely filed under this rule, the case shall proceed to trial as previously set.

(3) In the event the Petition for Deferred Prosecution is approved by the Court, the defendant may be under the supervision of the Probation Department, or Court Appointee pursuant to Section 10.05.170 of the Revised Code of Washington. A defendant who refuses, fails or neglects to comply with an order, or request of the Probation Office or Court Appointee, or the terms of his supervision, or conditions of his deferred prosecution may have the deferred prosecution revoked.

Municipal Court of Washington

For the City of Cheney No:______CITY OF CHENEY Plaintiff, Petition for Deferred vs. Prosecution

______Charges: ______Defendant Violation Date: ______

I am the defendant in this case and I petition the court for deferred prosecution under RCW Chapter 10.05. I make the following statement in support of my petition: The wrongful conduct charged is the result of or caused by

[ ] Alcoholism [ ] Drug Addiction [ ] Mental Problems, for which I need treatment. 2. Unless I receive treatment for my problem, the probability is great that I will offend again. 3. I agree to pay the cost of diagnosis and treatment, if I am financially able to do so, subject to RCW 10.05.130. 4. I understand 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 crime(s) charged or does not suffer from alcoholism, drug addiction, or mental problems. 5. If this charge is a violation of Title 46 or similar municipal ordinance, I have not previously been placed on a deferred prosecution for a Title 46 or similar municipal ordinance violation. 6. I have filed a case history and assessment with this petition as required by RCW 10.05.020. 7. I have the following rights: (a) to have a lawyer represent me at all hearings; (b) to have a lawyer appointed at public expense if I cannot afford one; (c) to have a speedy, public jury trial; (d) to appeal any conviction; (e) to remain silent and not testify; (f) to question witnesses who testify against me; (g) to call witnesses to testify for me, at no cost; (h) to be presumed innocent unless the charge(s) against me is (are) proved beyond a reasonable doubt; and (i) to present evidence and a defense. By deferring prosecution on these charges, I give up my right to: (a) a speedy trial; (b) a jury; (c) testimony on my own behalf; an opportunity to (d) call and (e) question witnesses; and (f) present evidence or a defense.

8. I agree that the facts as reported in the attached police reports are admissible evidence and are sufficient to support a conviction. I acknowledge that the above items will be used to support a finding of guilty if the deferred prosecution is revoked. 9. If my deferred prosecution is revoked and I am found guilty, I may be sentenced up to the maximum penalty allowed by law. 10.If I proceed to trial and I am found guilty, I may be allowed to seek suspension of some or all fines and incarceration if I seek treatment. I understand that I may seek treatment from a public or private agency at any time, whether or not I have been found guilty or placed on deferred prosecution. 11.For some crimes, a deferred prosecution will enhance mandatory penalties for subsequent offenses committed within a seven-year period. I understand that a deferred prosecution will be a prior offense under RCW 46.61.5055 (driving under the influence, physical control of a vehicle under the influence, negligent driving if originally charged as driving under the influence or physical control of a vehicle under the influence, vehicular homicide, or vehicular assault). 12.If the court defers prosecution on any crime that would be a violation of state law or local ordinance relating to motor vehicle traffic control, I will be disqualified from driving a commercial motor vehicle for the period specified in RCW 46.25.090 and, if I drive a commercial motor vehicle holding a license issued by Washington State, I will be required to notify the Department of Licensing and my employer of this deferred prosecution within 30 days of the judge granting this petition. RCW 46.25.030. If the court grants this Petition, I may not operate a motor vehicle on the public highways without a valid operator’s license and proof of liability insurance pursuant to RCW 46.29.490. If my wrongful conduct is the result of or caused by alcohol dependency, I shall also be required to apply for an ignition interlock driver’s license and to install an ignition interlock device under RCW 46.20.720(2) and RCW 46.20.385. The required periods of use of the interlock shall be not less than the periods provided for in RCW 46.20.720(3)(a), (b) and (c). I may also be required to pay restitution to victims, pay court costs, and pay probation costs authorized by law. 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, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. Alcoholism programs shall require a minimum of two self-help recovery groups per week for the duration of the treatment program. The court may terminate the deferred prosecution program if I violate this paragraph. 13.If the court grants this petition, during the period of deferred prosecution I will be required to contact my probation officer, the probation director or designee, or the court if there is no probation department, to request permission to travel or transfer to another state if my wrongful conduct involves: (i) an offense in which a person has incurred direct or threatened physical or psychological harm; (ii) an offense that involves the use or possession of a firearm; (iii) a second or subsequent misdemeanor offense of driving while impaired by drugs or alcohol; (iv) a sexual offense that requires me to register as a sex offender in Washington state. I understand that I will be required to pay an application fee with my travel or transfer request.

14.If I fail or neglect to comply with any part of my treatment plan or with any ignition interlock driver’s license or ignition interlock device requirements, then the court shall either order me to comply with the term or condition or be removed from deferred prosecution (RCW 10.05.090). After the hearing, the court will either order that I continue with treatment or be removed from deferred prosecution and enter judgment. If I am convicted of a similar offense during the deferred prosecution, the court will revoke the deferred prosecution and enter judgment. 15.The court will dismiss the charge(s) against me in this case three years from the end of the two-year treatment program and following proof to the court that I have complied with the conditions imposed by the court following successful completion of the two-year treatment program, but no less than five years from the date the deferred prosecution is granted, if the court grants this petition and if I fully comply with all the terms of the court order placing me on deferred prosecution.

I certify under penalty of perjury under the laws of the state of Washington that I have read the foregoing and agree with all of its provisions and that all statements made are true and correct. Dated at ______, Washington this ____ day of ______, ______.

______Petitioner-Defendant Defense Attorney/WSBA No IN THE MUNICIPAL COURT OF CHENEY, WASHINGTON

( ) STATE OF WASHINGTON ) CASE NO. ______( ) CITY OF CHENEY, ) ) CHARGE(S): ______Plaintiff, ) ______vs. ) ) ADVICE AND ACKNOWLEDGMENT ______) OF RIGHTS Defendant )

I understand and acknowledge that I have the following rights:

1. The right to be represented by a lawyer at all times, and to have a lawyer appointed at public expense if necessary.

2. I have the right to a speedy and public trial by an impartial jury in the place where the crime is alleged to have been committed, within 90 days of arraignment, or 60 days from arraignment if held in jail.

3. I have the right to remain silent before and during trial, and I need not testify against myself; also that any statement I make can be used as evidence against me.

4. I have the right at trial to confront witnesses who testify against me.

5. I have the right at trial to call witnesses to testify. These witnesses can be made to appear at no expense to me, but I may be ordered to pay if I am found guilty.

6. I am presumed innocent unless the charge(s) against me are proved beyond a reasonable doubt, or I enter a plea of guilty.

7. The right to present evidence and a defense.

8. I have the right to appeal a finding, after trial, of guilty, if I have plead not guilty.

9. That if I proceed to trial and am found guilty, I may seek suspension of some or all of the fines and costs, and incarceration that may be ordered, upon condition that I seek treatment, and, further, that I may seek treatment from public and private agencies at any time without regard to whether or not I am found guilty of the offense charged.

10. By deferring prosecution on these charges I understand I give up my right to: (a) a speedy trial, (b) a jury (3) testify, (d) question witnesses, (e) call witnesses, (f) present evidence or a defense.

DATE______SIGNATURE______IN THE MUNICIPAL COURT OF CHENEY, WASHINGTON

( ) STATE OF WASHINGTON ) CASE NO. ______( ) CITY OF CHENEY, ) ) CHARGE(S): ______Plaintiff, ) ______vs. ) ) ACCEPTANCE OF DEFERRED ) PROSECUTION ______Defendant ) AND STIPULATION OF FACTS ______

The above-named defendant, having been referred for an evaluation at an approved treatment facility for alcoholism, drug addiction, or mental problems; said facility having filed its report and recommended treatment plan, the defendant does: 1. Accept and agree to pursue and complete such treatment;

2. Agree to pay the costs of treatment;

3. Agree to maintain total abstinence from alcohol and non-prescription drugs, and further will submit to a test of my breath or blood to determine the alcohol/drug concentration upon request of a law enforcement officer who has reasonable grounds to believe I was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor;

4. Agree to be placed on probation with the Probation Clerk/Officer of the Municipal Court to monitor compliance with the treatment plan and other terms of the deferral. I further agree that the Probation Clerk/Officer may freely communicate with the personnel of the treatment facility about defendant's treatment and will file the necessary waiver allowing treatment facility personnel to freely communicate with the Probation Clerk/Officer of the Municipal Court;

5. Agree to pay a monthly fee for probationary services, restitution, and such other costs as may be authorized by law and ordered by the Court;

6. I understand that failure to comply with any part of my treatment plan or with any ignition interlock requirements, then the Court will hold a hearing to determine whether I should be removed from the deferred prosecution program. After the hearing the court will either order that I continue with treatment or be removed from deferred prosecution and enter judgment. If I am convicted of a similar offense during the deferred prosecution, the court will revoke the deferred prosecution and enter judgment.

7. Further agrees that if the Court revokes the order granting this Deferred Prosecution, I hereby stipulate and agree to the admissibility of the facts contained in the written police report, alcohol influence report forms, and any attachment thereto, and their admissibility in evidence to be used to support a finding of guilty. I understand that by this process, I am giving up the Constitutional right to a jury trial, the right to hear and question witnesses, the right to call witnesses in my own behalf, and the right to testify or not to testify; the right to present evidence or a defense, or right to remain silent.

8. I understand that under the Constitution of the State of Washington, I am entitled to a trial by jury of my peers who would determine my guilt or innocence. I understand before signing this Acceptance of Deferred Prosecution and Stipulation of Facts and waiver that I have the right to be represented by an attorney, and that if I cannot afford an attorney, one will be appointed for me without cost or expense. I do hereby voluntarily and with knowledge of the above rights waive my right to a jury trial and consent to the trial of this case by the Court pursuant to paragraph seven (7) above;

9. The petitioner further agrees not to operate a motor vehicle upon the public highways without a valid operator's license and proof of liability insurance. I understand I may also be required to apply for an ignition interlock driver’s license and to have a functioning ignition interlock device on any motor vehicle I operate as set forth in RCW 46.20.720. I may also be required to pay restitution to victims, pay court costs, and pay probation costs, and pay probation costs authorized by law. The court may terminate the deferred prosecution program if I violate this paragraph.

10. The petitioner further agrees to immediately report any violation of the above conditions to the Probation Clerk/Officer of the Municipal Court and further,

11. Attend and satisfactorily complete the Victims Panel Program, Life-Skills Class, or other alternative educational Program determined by the Probation Clerk/Officer.

12. Petitioner understands and agrees that if this Petition is based upon a violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, that the court shall order after the period of suspension, revocation or denial of driving privileges, the petitioner may drive only a motor vehicle equipped with a functioning ignition interlock or other biological or technical device in accordance with the provisions of RCW 46.20.720. . DATED this day of , 20 .

______DEFENDANT

______ATTORNEY FOR DEFENDANT ATTORNEY FOR PLAINTIFF

TELEPHONE NO. BAR NO. TELEPHONE NO. BAR NO.

IN THE MUNICIPAL COURT OF CHENEY, WASHINGTON

( ) STATE OF WASHINGTON ) CASE NO. ______( ) CITY OF CHENEY, ) ) Plaintiff, ) CHARGE(S): ______) vs. ) ) ______) ORDER DEFERRING PROSECUTION Defendant,

______ADDRESS ______

______PHONE NO. ______

THIS MATTER having come on for hearing this date and the Court finding: That the report heretofore ordered, pursuant to RCW, Chapter 10.05, recommends treatment for the defendant for: [ ] Alcoholism [ ] Drug Addiction [ ] Mental Problems and proposes a treatment plan;

That the defendant has agreed to comply with the terms and conditions of the plan, and has agreed to pay the cost of the plan and/or arranged for treatment; That the findings of the referral agency are correct and are now accepted as Court findings, and further, the Court finds that the petitioner has stipulated to the admissibility and sufficiency of the facts as contained in the written police report; 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; 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 the petitioner's statements were made knowingly and voluntarily.;

NOW THEREFORE, IT IS HEREBY ORDERED:

1. The defendant is accepted for deferred prosecution; 2. The defendant shall comply with all the terms and conditions of the recommended treatment plan, a copy of which is attached; 3. This order shall be attached to the docket, and thereby become a part thereof, which docket shall be removed from the regular Court docket and placed in the deferred prosecution file for a period of five years from this date, subject to removal; further prosecution of the defendant, or dismissal, all pursuant to RCW 10.05; 4. The defendant shall be placed under the supervision of the Probation Clerk/Officer of the Cheney Municipal Court for the period of treatment, and shall:

Pay a monthly probation fee of $ 40.00 per month for the first 24 months and a reduced fee of $25.00 per month for the remaining 36 months for a total of $1860.00 to the Probation Department during the period of the deferral, OR The Court orders the monthly probation fee waived (see RCW 10.01.160.;

AND

Pay a Breath Test Program Fee of $200.00 OR Based upon the attached VERIFIED WRITTEN PETITION (of assets and liabilities), the Court suspends payment of all or part of the BAC Fee as follows:______(see RCW 46.61.5054); AND

Pay Administrative Costs to the Clerk of the Court in the amount of $___250.00______(see RCW 10.01.160); AND

Pay police restitution in the amount of $______, OR The court orders the police restitution waived.

The Court orders the above assessed Administrative costs and BAC Fee may be paid in monthly installments starting within 60 days of the date of this order;

5. Reports as required by said Chapter shall be made by the evaluation facility in accordance therewith to the Clerk of the Cheney Municipal Court;

6. The defendant is ordered to keep the Court advised, in writing, of all changes of address;

7. The defendant shall not consume any alcohol and/or non-prescription drugs during the period of the deferral;

8. The defendant shall not commit any alcohol and/or drug related offenses during the period of the deferral, and further defendant will submit to a test of breath or blood to determine the alcohol/drug concentration upon request of a law enforcement officer who has reasonable grounds to believe defendant was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.

9. The defendant shall not operate a motor vehicle upon the public highways without a valid operator's license and proof of liability insurance in amount not less than that established in Title 46 of the Revised Code of Washington;

10. The defendant shall immediately report any violation of this order to the Probation Clerk/Officer of the Cheney Municipal Court;

11. The defendant shall successfully complete the Victims Panel Program (Alcohol-Driving Offenses); and

12. The defendant shall drive only a motor vehicle equipped with a functioning ignition interlock or other biological or technical device for the period of:______months in accordance with an Order Prohibiting Defendant from Operation of Any Vehicle not Equipped with a Functioning Ignition Interlock Breath Alcohol Device, and incorporated by reference herein. ______;

13. The defendant shall comply with the additional provisions as follows: ______

______

DONE IN OPEN COURT this day of , 200 .

Copy to: PROSECUTING ATTORNEY DEFENDANT PROBATION DEPARTMENT TREATMENT AGENCY JUDGE/COMMISSIONER MUNICIPAL COURT PROBATION DEPARTMENT CHENEY, WASHINGTON DEFERRED PROSECUTION REPORT AND RECOMMENDATION

JUDGE/COMMISSIONER: CASE NO: DEFENDANT: DUE DATE:

Pursuant to the Defendant's application for Deferred Prosecution, the Defendant was evaluated by a qualified treatment facility. The evaluation report is attached. Further, the Probation Department has interviewed the applicant and finds:

1. The applicant is amenable to Probation Department supervision for the deferred period and has agreed to pay a supervision fee of $ 1,860.00___. Applicant has further agreed to all the terms and conditions of supervision.

2. Department of Licensing records shows NO prior Deferred Prosecution. 3. The treatment program qualifies under the WAC as: Intensive Out-Patient Program In-Patient Program Other, because: ______

4. The Defendant's application for Deferred Prosecution has been filed on forms approved by the Court.

5. The Defendant has signed and agreed to the Conditions on all of the following: PETITION FOR DEFERRED PROSECUTION ADVICE AND ACKNOWLEDGMENT OF RIGHTS ACCEPTANCE OF DEFERRED PROSECUTION AND STIPULATION OF FACTS ORDER IGNITION-INTERLOCK DEVICE

______6. The necessary waiver(S) of disclosure has(ve) been signed by the Defendant.

7. The Defendant and treatment facility have been informed that quarterly reports are required as minimum. That pursuant to Section 10.05.170 of the Revised Code of Washington, a semi-annual records check will be made with the Department of Licensing and that the petitioner will have monthly contact with person or agency appointed to supervise the petitioner.

8. The Probation Officer of the Municipal Court recommends the Deferred Petition be: Granted Denied Note: Reason for denial or special provision requested upon approval:

DATED this ______day of ______, 200______.

Probation Officer