District Court County: Cowlitz. Appeal from Superior Court of Kitsap County. Docket No: 93-2-01330-3. Date filed: 11/18/94. Judge signing: Hon. Don L. McCulloch.
Petition for Review Denied May 6, 1997,
Authored by Elaine M. Houghton. Concurring: J. Dean Morgan, Karen G. Seinfeld
The opinion of the court was delivered by: Houghton
HOUGHTON, J -- Beverly Hahn and Terik Smith were charged on separate occasions with driving while intoxicated (DWI). Both were granted deferred prosecutions. *fn1 Following their second DWI arrests, they withdrew their deferred prosecution petitions and pleaded guilty to the first DWI charges. The district court then granted their petitions for deferred prosecution on their second DWI charges and the State appealed. The superior court concluded that because Hahn and Smith voluntarily withdrew from the deferred prosecution program, RCW 10.05.010 did not preclude eligibility for deferred prosecution on the subsequent charges. We granted discretionary review and the cases were consolidated for purposes of appeal. We reverse and remand for further proceedings.
Smith was arrested on December 13, 1991, in Longview for DWI, RCW 46.61.502. Smith petitioned for and received deferred prosecution for the DWI charge on March 6, 1992, in Longview Municipal Court. On October 10, 1992, Smith was cited for DWI in Cowlitz County. Smith withdrew from the deferred prosecution program on February 17, 1993, and was found guilty of the December 1991 charge. On May 7, 1993, Smith requested deferred prosecution on the second DWI charge. The Cowlitz County District Court entered an order for deferred prosecution on May 14, 1993.
Hahn was charged with DWI in Longview Municipal Court on December 18, 1991. Her petition for a deferred prosecution was granted by the Longview Municipal Court on March 27, 1992. On December 13, 1992, Hahn was cited for DWI in Cowlitz County District Court. She "removed herself" from the deferred prosecution program on May 21, 1993, and was found guilty and sentenced on the first charge. *fn2 On November 19, 1993, the district court granted Hahn's petition for deferred prosecution on the second DWI charge.
The district court in both cases found that there had been no previous deferred prosecution programs within the past five years. The district court ordered Smith and Hahn to abstain from alcohol and non-prescription mind-altering drugs for two years and to fulfill the conditions of their respective treatment plans. *fn3 The court further ordered that upon notice of a conviction of a similar offense during the two-year period, it would remove the case from the deferred prosecution file and enter judgment pursuant to RCW 10.050.020.
The State appealed both cases to the superior court, arguing that Smith and Hahn had previously petitioned for and were granted deferred prosecutions on earlier DWI charges within the last five years. Both cases were joined for purposes of appeal.
In its oral ruling, the superior court distinguished between termination due to non-compliance with the program and voluntary withdrawal from the program:
There are two ways that it can be, by statute, terminated by the Prosecution. One is if you don't comply with the treatment, and one is if you are convicted of another offense. . . .
There's nothing in the law that says you cannot voluntarily withdraw your petition for a deferred prosecution of any kind;
and if you do, it's a nullity. It's destroyed the deferred prosecution.
Now, if the State would have moved to dismiss based upon not following through with the treatment program or because of another conviction . . . that would have been a complete deferred prosecution program ...