If the prosecutor and the judge agree, and if the facts of your case, and if your essentially clean prior criminal history make you eligible for this outcome, AND IF you have a persuasive attorney experienced in negotiating for this type of disposition – you will be very fortunate. A somewhat common outcome in a non-felony domestic violence assault case (although this type of disposition can be used also in other non-felony cases, such as a Theft 3 if the prosecutor will agree to it, or Reckless Endangerment, etc.) is for the defendant to enter into what is known as a Stipulated Order of Continuance (“SOC”).
In an SOC the defendant enters into a contractual agreement with the state, county or city government that is prosecuting the case, and with the court. If the defendant follows his/her end of the bargain, the state or city will move to dismiss the case at the end of the period of the agreement. But in some courts, like Issaquah Municipal Court, the defendant or defense attorney must actively file a motion for that at the end of the SOC deferral period.
Once again, not every case or client qualifies for this sort of negotiated outcome. But, the benefit of this alternative is that at the end of the period of deferral, if all conditions have been met, the case is dismissed. The drawbacks are the expenditures of time and money necessary to complete the conditions, the almost automatic finding of guilt if the conditions are not met and other less tangible down sides as well. Though each court has its own way of administering SOC’s, sometimes also calling them dispositional continuances or court monitored deferrals (CMD), there are some very common requirements and themes regardless of the jurisdiction of the case.1. Domestic Violence and Batterers’ or Other Treatment is Required for almost all SOC’s.
All SOC’s, with very rare exceptions for fact patterns that are relatively de minimis (i.e., not that serious) will require the individual to undergo some form of treatment. As a general rule, successful completion of an SOC will require participation in and completion of a state approved domestic violence or batterer's treatment program. In some cases, depending on the court, the prosecutor and the wishes of the victim, the type and scope of the treatment program can be negotiated. This means that, if agreed upon, the SOC could be fulfilled by completing a less stringent anger management program. Or possibly you will be required to complete alcohol counseling as an additional or the sole type of treatment during the SOC. Usually the state and the court will require batterer's treatment before it will agree to an SOC in a DV case. Be sure to review all of your counseling options with me before entering into an SOC. (NOTE: For other types of non-DV non-felony cases where an SOC disposition is taken, such as in a Theft 3 shoplifting charge, the “treatment” may consist only of completing some community service hours, and/or a Theft/Consumer Awareness Workshop). In other cases psychological counseling and/or medical treatment for any medical conditions that contributed to the client’s alleged criminal act(s) can be ordered.2. Alcohol Evaluation and recommended treatment follow-up.
This category deserves special mention because it could potentially be ordered in one of three ways to assure compliance with the SOC. The first is that a domestic violence treatment facility could require that the individual undergo alcohol treatment as part of or even prior to entry in the batterer's program. It also could be required separately by the court or prosecutor as part of the SOC agreement. Finally, it could be agreed upon in lieu of batterer's treatment. Regardless, anyone seriously considering entry into an SOC should obtain an alcohol evaluation first in order to best know what will be expected should the SOC be sought.3. Imposition of a No Contact Order (NCO).
Some but not all courts/prosecutors will require that an order prohibiting contact with the victim be put in place as a condition of the SOC. Others will want an NCO in place until a certain amount of counseling has been completed. Still others don't make an NCO part of the SOC at all. This is truly taken on a case by case and jurisdiction by jurisdiction basis. The important thing to remember here is that if no contact is made part of the agreement, violation of the order would have two-fold consequences. The first is that the violation could cause the SOC to be revoked which would result, most likely, in an automatic finding of guilt on the underlying DV charge. The second is that it would constitute a whole crime called Violation of a No Contact Order. If entering into an SOC, always try to negotiate the NCO out of the agreement or at a bare minimum, set up as part of the SOC a timeline in which the NCO can be removed. This will help protect yourself and your SOC as you move forward.4. Probation
Probation is simply the court's way of monitoring an individual's compliance progress with the SOC conditions. Some courts do this by setting up administrative review dates whereby the file is reviewed. If compliance is found, no action is taken. If there is evidence of non-compliance, a more formal review hearing is set. Other courts use a probation department to monitor compliance. In these courts, the defendant will very likely have to meet or have communication with, on a semi-regular basis, a probation officer. Every probation department and probation officer is different. Try to learn as much about how your SOC will be overseen. The difference between a laissez-faire court administrative review process and a highly active and interested probation officer i extreme. Know not only what will be expected of you but who is expecting it before agreeing to an SOC.5. Stipulation to police report upon revocation.
The court sets up guarantees that if an individual fails to comply with the agreed terms of an SOC, that the process of obtaining a conviction is swift and certain. To that end, in order to be accepted into an SOC, the defendant must agree to the admissibility of the police report should the SOC be revoked as well as the sufficiency of the evidence contained therein to support a conviction. This means that if a person is revoked from a Stipulated Order of Continuance, the court has been authorized ahead of time to simply review the report and that all parties agree that report should support a conviction. Translated: those that fail to comply with the terms of the SOC are almost always found guilty of the DV charge.
There are a variety of other less affirmative conditions that the court will impose as part of the SOC. The person will be ordered to pay certain court costs, assessments and probation fees. There will be a prohibition on committing any new criminal law violations, and possession of weapons will be prohibited, among some other things. There really is no limit to the kinds of things the parties can agree upon as part of an SOC. If truly considering this alternative you and you lawyer owe it to you to find a creative solution that gives you the best chance of success while at the same time, minimizing any risk exposure.
DEFERRED SENTENCES, DISPOSITIONAL CONTINUANCES AND COURT MONITORED DIVERSION (“CMD”) – OTHER TYPES OF POSSIBLE DISPOSITION WITHOUT JAIL, EHM OR CONVICTION, IF YOU ARE ELIGIBLE, YOUR ATTORNEY KNOWS HOW TO PURSUE THIS OUTCOME & YOU STAY COMPLIANT:
A deferred sentence is very similar to an SOC, also ending with no state law conviction per se, and also usually involving no jail as with a lasting, suspended sentence which should generally be avoided whenever possible. A deferred sentence may last only 6, 12, or 18 months, at the judge’s discretion (and usually by agreement with the prosecution). The SOC and the deferred sentence dispositions can sometimes, though not very often, also be done on a reduced charge, such as Disorderly Conduct, occasionally even with the DV label (“DV Tag”) removed (a major good thing) if the prosecutor can be accordingly persuaded. Other forms of disposition that are essentially the same deal with no jail/EHM, no conviction, but still with treatment almost always and some minimal costs of administering it (usually by the court’s probation department) include Dispositional Continuances and Court Monitored Diversion (“CMD”).
Things keep changing but at present the only court calling what is essentially an SOC a Dispositional Continuance is Seattle municipal Court (a ‘world of its own’ type of court with its own different online portal and case database, different from the JIS – Judicial information system, and the Odyssey Portal– that all other courts in Washington State use, and with its own set of forms that are quite unique to that court, and further, enforcing the Seattle Municipal Code – “SMC” provisions, with strange names for many offenses (e.g., they call DUI “Persons Under the Influence of Intoxicants and/or Drugs, a rather older or antiquated term). It is a court with its own process and procedures to a certain extent, too. So, if you were arrested for a nonfelony assault, DV, assault DV or other nonfelony charge by a Seattle Police Department officer, your case will be filed by the Seattle City Attorney’s Criminal Division in Seattle Municipal Court). The Court Monitored Diversion (CMD) disposition is currently only dubbed as such and offered in Snohomish County and only at the Everett Municipal court, which also has its own slightly unique approach, forms and procedures, as well as approved remedies, although not to the extent of Seattle Municipal Court. The Dispositional Continuance and CMD dispositions are basically identical and thus are mostly just different names or labels for identical no-conviction and no-jail dispositions.
However, this complexity – the differences between different courts, and sometimes between different judges, things a lawyer cannot learn in law school, illustrates how you need an experienced attorney familiar with each court’s own unique staff, judges, rules, attitudes, procedures, etc. One critical thing about this topic in the King County Courts is that the Kirkland Municipal Court does not offer SOC’s or any of their equivalents any more. (Despite that stance, though, of the Kirkland court, I have been able to obtain numerous sequential ordinary continuances in joint effort with the prosecutor to accomplish the same thing in that court for rare and compelling cases. These non-conviction dispositions, whether SOC, CMD, deferred sentence or dispositional continuance, do have the great benefits of no jail and no conviction, as stated – but please be careful to fully understand and discuss with me all the duties and treatment obligations you must comply with on a ‘zero-tolerance’ basis to make electing to do one of these dispositions sensible. It is folly to go that route only to have it revoked for noncompliance or reoffending later on. You need to know what will be expected of you and whether you’ll be able to live up to that. These dispositions are essentially a contract between you, the prosecution and the court. You do not want them to say you breached it!
TREATMENT FOR DV CASES:
The treatment for DV commonly meted out by the courts, whether for a conviction or one of the non-conviction dispositions discussed above (SOC’s, etc.) or upon conviction, varies depending upon whether the defendant was drunk or high at the time of the alleged incident, actually has some bona fide mental-health issue(s) and how bad the violence in the Domestic Violence was – a little scratch or a barely recognizably bruised and swollen face, etc. A good but lengthy guide on this topic is “COURT-MANDATED/DIRECTED TREATMENT FOR DOMESTIC VIOLENCE PERPETRATORS,” by Anne L. Ganley, Ph.D., from the Washington State Administrative Office of the Courts’ “DV Manual for Judges 2015.” It is online: HERE. See also the full: “Domestic Violence Manual for Judges” (Released 2016) online: HERE.
DVBT (Washington State-certified DV Batterers’ Treatment, is a one-year program that is usually once per week for 6 months, then twice per month for the last 6 months), is described in RCW 26.50.150.
Any program that provides domestic violence treatment to perpetrators of domestic violence must be certified by the department of children, youth, and families and meet minimum standards for domestic violence treatment purposes. The department of children, youth, and families shall adopt rules for standards of approval of domestic violence perpetrator programs. The treatment must meet the following minimum qualifications:
(1) All treatment must be based upon a full, complete clinical intake including but not limited to: Current and past violence history; a lethality risk assessment; history of treatment from past domestic violence perpetrator treatment programs; a complete diagnostic evaluation; a substance abuse assessment; criminal history; assessment of cultural issues, learning disabilities, literacy, and special language needs; and a treatment plan that adequately and appropriately addresses the treatment needs of the individual.
(2) To facilitate communication necessary for periodic safety checks and case monitoring, the program must require the perpetrator to sign the following releases:
(a) A release for the program to inform the victim and victim's community and legal advocates that the perpetrator is in treatment with the program, and to provide information, for safety purposes, to the victim and victim's community and legal advocates;
(b) A release to prior and current treatment agencies to provide information on the perpetrator to the program; and
(c) A release for the program to provide information on the perpetrator to relevant legal entities including: Lawyers, courts, parole, probation, child protective services, and child welfare services.
(3) Treatment must be for a minimum treatment period defined by the secretary of the department of children, youth, and families by rule. The weekly treatment sessions must be in a group unless there is a documented, clinical reason for another modality. Any other therapies, such as individual, marital, or family therapy, substance abuse evaluations or therapy, medication reviews, or psychiatric interviews, may be concomitant with the weekly group treatment sessions described in this section but not a substitute for it.
(4) The treatment must focus primarily on ending the violence, holding the perpetrator accountable for his or her violence, and changing his or her behavior. The treatment must be based on nonvictim-blaming strategies and philosophies and shall include education about the individual, family, and cultural dynamics of domestic violence. If the perpetrator or the victim has a minor child, treatment must specifically include education regarding the effects of domestic violence on children, such as the emotional impacts of domestic violence on children and the long-term consequences that exposure to incidents of domestic violence may have on children.
(5) Satisfactory completion of treatment must be contingent upon the perpetrator meeting specific criteria, defined by rule by the secretary of the department of children, youth, and families, and not just upon the end of a certain period of time or a certain number of sessions.
(6) The program must have policies and procedures for dealing with re-offenses and noncompliance.
(7) All evaluation and treatment services must be provided by, or under the supervision of, qualified personnel.
(8) The secretary of the department of children, youth, and families may adopt rules and establish fees as necessary to implement this section.
(9) The department of children, youth, and families may conduct on-site monitoring visits as part of its plan for certifying domestic violence perpetrator programs and monitoring implementation of the rules adopted by the secretary of the department of children, youth, and families to determine compliance with the minimum qualifications for domestic violence perpetrator programs. The applicant or certified domestic violence perpetrator program shall cooperate fully with the department of children, youth, and families in the monitoring visit and provide all program and management records requested by the department of children, youth, and families to determine the program's compliance with the minimum certification qualifications and rules adopted by the department of children, youth, and families.
There are numerous treatment centers and individual providers that are licensed to provide DVBT treatment. They are updated yearly by the DSHS and can be found, listed by city, in the “perplistcity.pdf” file online: HERE. It’s fair to say this list’s name (“perplistcity” reflects how you can expect to be treated in a DVBT program for a year. Most of my clients prefer to avoid it and do mental health or substance treatment (or both, if necessary) instead. DVBT treatment is almost never covered by one’s health insurance, either, whereas alcohol/drug and mental-health treatment ordinarily is covered, usually either at 80% (20% copay) or 50%.
Other forms of treatment that may alone suffice in less serious (de minimis) cases or in tougher cases are recommended by me to get a better deal with the prosecutor, include one-time DV Victim Impact Panels and Anger Management, either Level I (one Saturday for 8 hours) or Level II (2 back-to-back 8-hour Saturdays on consecutive weekends).
Let me know if you have questions about any of the above material.
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