If you read this DUI blog with any regularly then you know there are two types of sentences imposed when a person pleads guilty.
There is a suspended sentence and there is a deferred sentence. A suspended sentence means the charge imposes a sentence at the time of the sentencing, but suspends all or a portion of the jail and fines and hangs over the defendants head for the period of jurisdiction. At the end of that period the case is closed, but the conviction still exists on the defendants criminal history.
A deferred sentence on the other hand is a much better deal. Essentially the a defendant will still plead guilty but a Judge will not impose a sentence at the time of sentencing, and instead will defer it for a period of time. Then at the end of that period if the defendant has complied with whatever terms the Judge set at the time of the sentencing, the defendant can take back the guilty plea and the charge will be dismissed.
Currently this is one of the best deals out there if arrested for a DUI and the charge gets reduced to the lesser offense of Negligent Driving 1. Most Judges, and Courts do not offer such a deal, but there are some occasions when it can be obtained. In fact in 2012 I had 10 clients who received such a deal where the original charge of DUI was reduced to Negligent Driving 1, and the Judge imposed a deferred sentence.
Now in addition to the benefit of having the charge dismissed. Receiving a deferred sentence on a Negligent Driving 1 does not count as a prior offense. Well it is debatable I guess. Prosecutors will argue it does. Defense Attorneys argue it doesn’t. The RCW spelling out what is a prior offense does not include the language “deferred sentence.” So based on a plain reading of the statute it doesn’t count as a prior offense. Meaning if a defendant successfully completed a deferred sentence on a Neg 1, and then within 7 years received another DUI. That subsequent DUI would be considered a first offense.
However there is currently a bill in the House of the Washington State Legislature proposing a change to this little loophole. HB 1482 proposes amending the language of a prior offense under RCW 46.61 to include deferred sentences. This is an interesting development. I tend to not agree with such a change.
First a deferred sentence is pretty rare. It generally is only granted when it is a first offense, no prior criminal history, low breath test, and the defendant has completed all the assessments, and classes. Secondly even if a Judge grants a deferred sentence, and the defendant completes it, but then gets another DUI. The Judge of the subsequent DUI still has the discretion to treat the subsequent DUI has a second offense, in fact they could impose whatever sentence they want. And if I had a client who was in that boat, I would probably tell them there is a strong possibility the Judge would do that, considering they were already given a break the first time around.
In my opinion the only reason for proposing such a change is purely punitive. Not surprisingly the sponsors of this amendment seem to be very “Prosecutorial friendly” if you know what I mean. Hopefully this bill does not go any further, but I guess we will see at the end of this legislative session.
Matthew A. Leyba is a DUI Attorney in Seattle, WA. His practice focuses on representing those accused of DUI and other traffic offenses.