Subsequent Deferred Denied

City of Walla Walla v. Topel

By Brett A. Purtzer; March 2001

     On February 8, 2001, Division III, Court of Appeals decided City of Walla Walla v. Topel, 2001 WL 139108 (2001), holding that the January 1, 1999, changes to the deferred prosecution statute limits a DUI defendant to one deferred prosecution in a lifetime.  In so ruling, the court summarily dismissed Topel’s argument that the 1999 amendments violated the ex post facto principles, even though the amendments changed the consequences of Mr. Topel’s first DUI conviction and deferred prosecution.

     In the court’s analysis, the court takes some liberty with interpreting the revised version of RCW 10.05.010 which, in pertinent part, states that a “person shall not be eligible for a deferred prosecution program more than once.”  The argument raised in Topel was that this law was ambiguous as it could be construed as entitling a defendant to be eligible for one deferred prosecution in a lifetime, or one deferred prosecution after January 1, 1999, the effective date of the act.  The court, however, stated that the meaning of the amendment was clear: a defendant may receive one, and only one, deferred prosecution in his or her lifetime.

     To support its decision, the court offered an example that Topel’s argument could lead to an absurd result – a defendant could receive a deferred prosecution for both a December 31, 1998, and a January 2, 1999, conviction.

    This example seems to be elusory, however, when one considers the requirements of obtaining a second deferred prosecution under the old statute – five-year period of time - and how that compares with the amended statute.

     Previously, a person would not be eligible for a subsequent deferred prosecution until five years had passed, something that the example provided by the court does not contemplate. Additionally, the court’s reasoning violates the Supreme Court’s holding in State v. Cruz, 139 Wn.2d 186, 985 P.2d 384 (1999).  There, the Supreme Court stated that a sex offense, once it washed out, could not be revived upon passage of subsequent legislation pursuant to RCW 9.94A.360(2).  Here, Topel ignores Cruz which should be the controlling case.

     The effect of this case is troubling.  Here, we have a situation where Mr. Topel had previously received a deferred prosecution seven years before he petitioned the court for a first deferred prosecution under the new law.  At this time, Division III is the only court that has published a decision, but it is clearly something the Supreme Court should address because of the ambiguous statute and its proper interpretation, particularly in light of Cruz.  Although the court indicates that the statute states that a defendant may receive only one deferred prosecution in his or her lifetime, you will not find the word “lifetime” anywhere within the deferred prosecution statute.  If, as based on the defendant’s argument, the legislation determined that “a deferred prosecution could only be used once in a lifetime”, such word should have been placed within the statute.  Here, it is absent.

     Although Division III has ruled, a defendant’s entitlement to a subsequent deferred prosecution after the amendment should still be raised if applicable and preserved for appeal.  Until the Supreme Court rules on this issue, its decision in State v. Cruz should provide guidance to the lower courts.  In Cruz, the court held that a previously washed out conviction could not be revived by subsequent legislation.  In Topel, the previous deferred prosecution also “washed out” and should not have counted for purposes of determining whether he was eligible for a deferred prosecution under the new legislation.  Unfortunately, Division III held otherwise, and, hopefully, this will be something the Supreme Court will review in the near future to give guidance in this very important area.