Footnotes on senior deputy prosecutor’s DUINovember 29th, 2013 by Chris Henry
When we wrote about a Pierce County court giving a Kitsap County senior deputy prosecutor treatment for alcohol addiction in lieu of punishment, a number of readers railed against the deferred prosecution deal.
“She had a prior alcohol related incident where charges were reduced!! She was driving drunk with two 3-yr-olds in the car!! Why was deferred prosecution even on the table?” commenter SS487 asked.
I brought readers’ concerns to Pierce County Deputy Prosecutor Tim Lewis. In a nutshell, he said Barbara O. Dennis received no special consideration and only got the concessions to which she was legally eligible under state law.
“The way we approached this case is no different from how we approach any other DUI that comes through our office,” Lewis said.
The implication of Lewis’ statement is that anyone under similar circumstances should be able to expect the same treatment. Here are details of Dennis’ case and Lewis’ answers to questions raised by how it played out in court.
Dennis, 42, was driving Oct. 9 on Bond Road when her van rear-ended a Volvo that had stopped for a car that was turning. A Washington State Patrol trooper who responded noted Dennis smelled of alcohol. A test at Kitsap County Jail after her arrest showed blood alcohol levels of 0.144 and 0.134, more than the 0.08 legal limit. Two 3-year-olds were riding in Dennis’ car at the time of the accident.
The Kitsap County Prosecutor’s Office referred the case to Pierce County to avoid a conflict of interest. On Oct. 22, Dennis was charged with driving under the influence.
Dennis was charged with DUI in 2007 by Pierce County prosecutors. The charge was reduced to first-degree negligent driving, an alcohol-related misdemeanor, after Dennis complied with certain court-ordered conditions.
Considering her prior alcohol-related offense, why was
deferred prosecution an option on her second DUI?
The 2007 negligent driving charge does count as a prior DUI, Lewis said, but Dennis at the time did not seek a deferred prosecution (treatment in lieu of jail time and other punishment). A defendant is eligible for only one deferred prosecution ever, and most defense attorneys will advise clients, “Don’t use it for your first DUI. Keep it in your pocket,” Lewis said. Most most defendants he’s seen seeking deferred prosecution are looking at their second or third DUI.
To be eligible for a DP, the defendant must admit culpability, waive their right to a trail by jury and sign a statement agreeing that addiction to alcohol (or drugs if that’s the case) was a causative factor in the crime. They must also agree that without treatment they are highly likely to re-offend.
“You’re really coming before the court and doing a mea culpa,” Lewis said.
The theory behind the deferred prosecution is that it’s better not only for the defendant but also for society to have them seek treatment for their addiction and hopefully prevent future crimes.
If the defendant lapses during treatment or otherwise fails to fulfill terms of the court, they go back to square one legally speaking. The judge then has the discretion to impose the maximum penalty allowed.
The law, however, gives the court little discretion to deny a deferred prosecution if the defendant meets the qualifications, Lewis said. If the treatment plan satisfies the statute, “the court shall” grant the deferred prosecution, the law says.
How did Dennis get the 2007 DUI charge reduced?
Dennis entered into a pretrial diversion agreement with the court, meaning if she stayed out of trouble and fulfilled other terms imposed by the judge — a litany of things, Lewis said — the charge would be reduced to first-degree reckless driving, an alcohol-related misdemeanor. Again, said Lewis, this was an option that was available to Dennis by law; not because she is a deputy prosecutor.
“It’s a matter of statutory entitlement,” Lewis said.
State law says defendants facing a misdemeanor or gross
misdemeanor (as Dennis did) are eligible for a deferred
prosecution. Those charged with a felony DUI are not. Under what
circumstances is a DUI
charged as a felony?
In Washington State, one can have up to four DUIs within a 10-year period before the subsequent charge becomes a felony. Washington is the only state that allows that many prior DUIs. The number in other states ranges from one to three.
A DUI will automatically be charged as a felony in Washington if a defendant has a prior conviction of vehicular assault or vehicular homicide, or if they are a juvenile.
Was the fact two toddlers were in the car taken into
Yes, Lewis said. The prosecutor’s office charged it as a DUI with the “aggravator” of having children under the age of 16 in the car. According to Lewis, Dennis was booked into jail with child endangerment recommended as a separate charge. The Pierce County Prosecutor considered making the two charges separately, but “the aggravated DUI carries more of a penalty” than charging the DUI and then child endangerment, Lewis said. Although Dennis will not be subject to the penalties if she completes the deferred prosecution, it gave the prosecutor’s office a bigger hammer to hang over her head, so to speak (my words, not Lewis’).
Were injuries to the Volvo driver factored in to the charge
and plea deal?
The Kitsap Sun heard from the driver of the Volvo, who said she was injured and the car totaled. According to Lewis, none of the information the Pierce County Prosecutors Office received indicated that the victim’s injuries meet the threshold of the law for vehicular assault. The threshold is “substantial bodily harm,” which is defined as, “bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part.”
I hope this offers some clarification.
Chris Henry, reporter