Title 6 - Juvenile Offense Proceedings--Diversion Agreements

JuCR 6.1: ELIGIBILITY FOR DIVERSION

A juvenile's eligibility for diversion shall be determined pursuant to RCW 13.40.070 and .080.

JuCR 6.2: RIGHT TO CONSULT WITH A LAWYER

(a) Advice of Right to Representation by Lawyer.

A juvenile found eligible for diversion shall, prior to the initial interview with the diversion unit, be advised of his or her right to consult with a lawyer concerning the juvenile's decision to enter into a diversion agreement or to appear in juvenile court.

(b) Appointment of Lawyer.

The court shall appoint a lawyer for any juvenile who is financially unable to obtain a lawyer for the consultation if the juvenile does not waive that right pursuant to rule 6.3.

A juvenile may be represented by a retained lawyer during the diversion process in accordance with RCW 13.40.080(6).

JuCR 6.3: WAIVER OF RIGHT TO LAWYER

A waiver containing the following statements and in substantially the following form shall be read by, signed by, and a copy given to a juvenile who waives the right to consult with a lawyer before an initial interview with a diversion unit:

Waiver of Lawyer

1. I know that I can talk to a lawyer about whether I should enter into a diversion process and will not have to pay for one if I cannot afford it.

2. I know that a lawyer can look at my police reports, tell me about the law, help me understand my rights, and help me decide whether I should enter into a diversion process or go to juvenile court.

Dated ________________________

______________________________

Parent or Guardian (optional)

Dated _________________________

_______________________________

Juvenile

The above statement was read to the juvenile and signed by the juvenile on the date indicated.

______________________________

Representative of Diversion Unit

JuCR 6.4: ADVICE ABOUT DIVERSION PROCESS

(a) Advice When Confinement Possible.

A juvenile alleged to have committed an offense for which an adult could be confined shall be given a copy of a statement in substantially the following form during the initial interview with a diversion unit. The statement shall also be read by, or read to, the juvenile before the juvenile signs the statement.

Advice About Diversion

1. Diversion is a different way of dealing with juveniles who are charged with an offense. You do not go to court and there is no trial before a judge.

2. A diversion agreement is a contract between you and the diversion unit. A diversion agreement may require you to do certain things, such as community service, attend a counseling, informational, or educational interview, or make restitution, but you cannot be sent to jail. Under certain circumstances you may be counseled and released, which means no further action will be required of you.

3. If you sign a diversion agreement, or if you are counseled and released, the offense with which you are charged and any diversion agreement will be part of your criminal history. When you have a criminal history, (A) you may not necessarily be permitted to participate in diversion for other offenses you have committed or may commit in the future, and (B) you may be given a longer sentence for other offenses you have committed or may commit in the future.

4. Your criminal history for this offense will show whether or not you have completed the terms of this diversion agreement.

5. Your criminal history may be available to the police, the prosecutor, the court, and the diversion unit.

6. If you do not follow the diversion agreement, the prosecutor may bring you to a hearing for the offenses with which you are charged. If you do not appear at the court hearing, the court may order that you be arrested.

7. When you are 18 years old, you may ask the court to destroy all records on this offense if your criminal history consists of only one diversion and 2 years have passed since you completed the diversion agreement.

8. You have the right to talk to a lawyer about whether you should participate in diversion or whether you should go to court. You will not have to pay for a lawyer if you cannot afford it. If you do not believe you committed this offense, you should talk to a lawyer.

9. When you agree to participate in the diversion process, you do not have the right to have a free lawyer appointed for you to help you work out a diversion agreement, but you do have the right to have a lawyer help you work out a diversion agreement if you can afford to pay for it.

10. You do not have to participate in diversion. If you do not participate, your case will go to court if charges are filed by the prosecutor. If your case goes to court, you can have a lawyer to represent you, and you will not have to pay for the lawyer if you cannot afford it. If you are found guilty in court, the maximum penalty cannot be greater than the maximum penalty the diversion unit may impose.

11. I have been informed and fully understand that if the offense for which I have entered into a diversion agreement is a violation of RCW 66.44, 69.41, 69.50, or 69.52, and I was 13 years of age or older when the offense was committed, the diversion agreement will result in the suspension or revocation of my privilege to drive. (If not applicable, this paragraph should be crossed out and initialed by the offender.)

12. I have been informed and fully understand that if I am enrolled in a common school, the court will notify the principal of my diversion agreement if the offense for which I am entering into a diversion agreement is a violent offense as defined in RCW 9.94A.030; a sex offense as defined in RCW 9.84A.030; inhaling toxic fumes under chapter 9.47A RCW; a controlled substance violation under chapter 69.50 RCW; a liquor violation under RCW 66.44.270; or any crime under chapters 9A.36, 9A.40, 9A.46, and 9A.48 RCW. (If not applicable, this paragraph should be crossed out and initialed by the offender.)

13. I have read or someone has read to me everything printed above, and I understand it. I have been given a copy of this statement.

Dated ________________________ Dated _______________________ ______________________________ _____________________________

Parent or Guardian (optional) Juvenile

The above statement was read to the juvenile and signed by the juvenile on the date indicated.

___________________________________

Representative of Diversion Unit

If applicable:

I am fluent in the __________ language and I have translated this entire document for the juvenile from English into that language. The juvenile has acknowledged his or her understanding of both the translation and the subject matter of this document. I certify under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

Dated this _____ day of ___________, 19___, at ___________, Washington.

___________________________________

Interpreter

(b) Advice When No Confinement Possible. A juvenile alleged to have committed a traffic infraction or an offense for which an adult could not be confined shall be given a copy of a statement in substantially the following form during the initial interview with a diversion unit. The statement shall also be read by, or read to, the juvenile before the juvenile signs the statement.

Advice About Diversion

1. Diversion is a different way of dealing with juveniles who are charged with an offense. You do not go to court and there is no trial before a judge.

2. A diversion agreement is a contract between you and the diversion unit. If you are alleged to have committed a traffic infraction, a diversion agreement requires you to do community service or attend educational or counseling sessions. If you are alleged to have committed some other offense, a diversion agreement may require you to do certain things, such as community service, attend a counseling, informational, or educational interview, or make restitution, but you cannot be sent to jail. Under certain circumstances you may be counseled and released, which means no further action will be required of you.

3. If you do not follow the diversion agreement, the prosecutor may bring you to a hearing for the offenses with which you are charged. If you do not appear at the court hearing, the court may order that you be arrested.

4. When you are 18 years old, you may ask the court to destroy all records on this offense if your criminal history consists of only one diversion and 2 years have passed since you completed the diversion agreement.

5. You have the right to talk to a lawyer about whether you should participate in diversion or whether you should go to court. You will not have to pay for a lawyer if you cannot afford it. If you do not believe you committed this offense, you should talk to a lawyer.

6. When you agree to participate in the diversion process, you do not have the right to have a free lawyer appointed for you to help you work out a diversion agreement but you do have the right to have a lawyer help you work out a diversion agreement if you can afford to pay for it.

7. You do not have to participate in diversion. If you do not participate, your case will go to court if charges are filed by the prosecutor. If your case goes to court, you can talk to a lawyer but you may have to pay for it. If you are found guilty in court, the maximum penalty cannot be greater than the maximum penalty the diversion unit may impose.

8. If you are charged with a traffic infraction and agree to diversion, the diversion unit may notify the Department of Licensing. This may affect your driving privileges.

9. I have read or someone has read to me everything printed above, and I understand it. I have been given a copy of this statement.

Dated _______________________ Dated _____________________________ _______________________________ __________________________________ Parent or Guardian (optional) Juvenile

The above statement was read to the juvenile and signed by the juvenile on the date indicated.

___________________________________

Representative of Diversion Unit

If applicable:

Dated this _____ day of ___________, 19___, at ___________, Washington.

___________________________________

Interpreter

JuCR 6.5: ADVICE OF RIGHTS AND EFFECT OF DIVERSION

(RESCINDED)

JuCR 6.6: TERMINATION OF DIVERSION AGREEMENT

(a) Petition.

The procedure to seek termination of a diversion agreement is to file a petition in juvenile court alleging that the juvenile has substantially violated the terms of the diversion agreement. The petition shall include a statement of:

(1) The offense which the juvenile was alleged to have committed;

(2) The terms of the diversion agreement; and

(3) The alleged violation of the diversion agreement.

(b) Preliminary Hearing if Juvenile Is in Detention.

A juvenile may not be taken into custody and held in detention solely for an alleged violation of a diversion agreement. RCW 13.40.040 and 13.40.050 are the only authority for taking a juvenile into custody and holding the juvenile in detention. If a juvenile alleged to have violated a diversion agreement is held in detention on some other basis, a preliminary hearing on the petition for termination shall be held within 72 hours after taking the juvenile into custody, excluding Saturdays, Sundays, and holidays. Notice of the hearing shall be given in accordance with rule 11.2. At the hearing the court shall determine whether probable cause exists to believe the allegations in the petition, whether the petition is contested, and, in accordance with rule 7.4, whether continued detention is necessary. If the petition is contested and the juvenile is held in detention, the hearing on the petition shall be held within 14 days of the date of the preliminary hearing. If the petition is uncontested, the court may proceed immediately with the hearing on the petition to terminate the diversion agreement.

The court shall schedule a hearing on the allegations in the petition with reasonable speed, except that when a juvenile is held in detention, the hearing shall be scheduled in accordance with section (b) of this rule. A copy of the petition and written notice of the hearing, containing the date, time, and other information required by RCW 13.40.080(6), shall be given the juvenile in accordance with rule 11.2. The notice shall also state that an information may be filed on the original offense.

(d) Disclosure of Evidence.

All evidence to be offered against the juvenile shall be disclosed to the juvenile a reasonable time prior to the hearing.

(e) Procedure at Hearing.

The court shall hold a hearing on the allegations made in the petition. At the hearing the juvenile shall have the opportunity to be heard in person, to present evidence, and to confront and cross-examine all adverse witnesses.

(f) Burden of Proof and Order Terminating Diversion Agreement.

The petitioner must prove by a preponderance of the evidence that the allegations in the petition are true and that they are a substantial violation of the diversion agreement. If the court finds that the petitioner has met this burden of proof, it may order the termination of the diversion agreement. An order terminating a diversion agreement shall include a written statement of the evidence relied upon by the court and the reasons for the termination.

(g) Consolidation of Termination Hearing With Adjudication of Offense.

When the diversion unit has referred the case to the prosecuting attorney, and the prosecutor has filed an information, the court may schedule the hearing on the allegations in the petition to terminate the diversion agreement for the same time and place as the adjudicatory hearing on the allegations in the information. In that case, the court shall hold a hearing in accordance with this rule and make a finding with respect to the allegations in the petition before conducting the adjudicatory hearing on the allegations in the information.