DUI Deferred Sentence

The judge may grant a DUI Deferred Sentence upon a guilty conviction. The judge can impose jail, a fine and impose probation conditions. The probation conditions usually are imposed for a one year or two year period. The defendant must comply with all of the imposed sanctions. At the conclusion of the probationary period the court will review the defendant’s file.

If the defendant successfully complies with all of the terms the court will withdraw the guilty conviction. Then the court will enter a dismissal of the case. This disposition is frequent for misdemeanor criminal convictions (other than DUI convictions) of defendants with no criminal history. However, there are very rare occasions the court will impose the DUI deferred sentence for a DUI conviction. Below explains why the court has the authority to grant a deferred sentence for a DUI conviction.

RCW 3.66.067 authorizes a district court judge to impose a deferred sentence for any conviction. RCW 3.66.068 and RCW 46.61.5055 specifically contemplate the deferral of sentences in DUI and Actual Physical Control convictions. Statutes were compared; RCW 3.66.067-.069 and RCW 10.971 with Laws of Washington 2001, Ch. 140, § 1 (codified as RCW 9.96.060).

Vacating the Record of Conviction – RCW 9.96.060

The sentencing court in its discretion may vacate the record of conviction for a requesting applicant. Section 9.96.060 of the Revised Code of Washington outlines various methods the court may employ to vacate an applicant’s record of conviction. Under the statute, the court may vacate the record of conviction either (i) by permitting an applicant to withdraw his or her guilty plea and to enter a plea of not guilty; or (ii) if the applicant has been convicted after a plea of not guilty, by setting aside the verdict of guilty. RCW 9.96.060(1). The court then dismisses the applicant’s charging document.

Prior to vacating the record of conviction, the court first must determine whether an applicant is an appropriate candidate for this request. The record of conviction for a misdemeanor or gross misdemeanor may not be vacated if the applicant falls under any one of several criteria listed under RCW 9.96.060(2). One of those criteria is as follows:

The offense was a violation of RCW 46.61.502 (driving while under the influence), RCW 46.61.504 (actual physical control while under the influence), or 9.91.020 (operating a railroad, etc. while intoxicated).

RCW 9.96.060(2)(c). A district court judge therefore does not have the authority to vacate the record of conviction for an applicant in violation of the DUI or Actual Physical Control statutes.

The act of vacating a record of conviction differs, however, from the act of imposing a sentence by either deferring a sentence or suspending a sentence. The word “vacate” and “vacation of judgment” are defined by Black’s Law Dictionary as follows:

To annul; to set aside; to cancel or rescind. To render an act void; as to vacate an entry of record, or a judgment. As applied to a judgment or decree it is not synonymous with “suspend” which means to stay enforcement of judgment or decree. Vacation of Judgment is defined as, the setting aside of a judgment on grounds that it was issued by mistake, inadvertence, surprise, excusable neglect or fraud.

Black’s Law Dictionary at 1548 (6th ed. 1990). In contrast to a vacation of judgment, the deferred sentence, does not render the conviction void, but rather postpones the final determination of an individual’s conviction status pending satisfaction of certain conditions. By definition, therefore, vacating a record of conviction is an act distinct from deferring a sentence. Confirming this distinction, the two acts are treated in separate statutes. Although a district court does not have discretion to vacate a DUI conviction under RCW 9.96.060, the court does have discretion to defer sentences for all crimes under the authority granted it in RCW 3.66.067, as described below.

B. Deferred Sentences – RCW 3.66.067

Chapter 3.66 of the Revised Code of Washington sets forth the jurisdiction and venue of district courts. District court judges are authorized to assess punishment. RCW 3.66.065. Pursuant to this authority, district court judges can impose the following two forms of sentences:

After a conviction, the court may impose sentence by suspending all or a portion of the defendant’s sentence or by deferring the sentence of the defendant and may place the defendant on probation for a period of no longer than two years and prescribe the conditions thereof . . . . During the time of the deferral, the court may, for good cause shown, permit a defendant to withdraw the plea of guilty and to enter a plea of not guilty, and the court may dismiss the charges.

RCW 3.66.067 (emphasis added). Section 3.66.068 further defines the district court judges’ powers in connection with sentencing as follows:

For a period not to exceed five years after imposition of sentence for a defendant sentenced under RCW 46.61.5055 and two years after imposition of sentence for all other offenses, the court has continuing jurisdiction and authority to suspend or defer the execution of all or any part of its sentence upon stated terms . . .

RCW 3.66.068 (emphasis added). The statute referenced in the above-quoted section, RCW 46.61.5055, is the penalty schedule for DUI and Actual Physical Control, which describes specifically how a court may suspend or defer sentences for these violations.

Section 3.66.067 of the Revised Code of Washington grants authority to district court judges to defer sentences, and during the time of such deferral, to permit a defendant to withdraw the plea of guilty and to enter a plea of not guilty, and dismiss the charges. Moreover, RCW 3.66.068 specifically contemplates a district court judge deferring sentences in connection with convictions under the DUI and Actual Physical Control statutes by reference to RCW 46.61.5055. RCW 46.61.5055 further describes the manner in which such DUI and Actual Physical Control sentences can be deferred.

Washington State district court judges have the authority to grant deferred sentences in connection with DUI and Actual Physical Control convictions pursuant to RCW 3.66.067, RCW 3.66.068, and RCW 46.61.5055.


[1]Chapter 10.97 of the Revised Code of Washington neither restricts nor impacts a court’s judgment when sentencing a defendant. The Washington State Criminal Records Privacy Act, RCW 10.97, governs criminal history record information. Section 10.97.060 allows for the deletion of certain information. An applicant can request the deletion of non-conviction data two years after the entry of disposition from the criminal justice agency maintaining the record. The criminal justice agency may refuse the deletion if: (i) the disposition was a deferred prosecution or similar diversion; (ii) the applicant has had a prior conviction for a felony or gross misdemeanor; (iii) or the applicant has been arrested for or charged with another crime during the intervening period. This chapter is not intended to restrict the authority of any court.