State Of Washington v. Anthony Brestoff, 48948-1

In April 2015, Anthony Brestoff was adjudicated in juvenile court for unlawful possession of marijuana under age 21 and placed on community supervision with conditions including attending school and refraining from new offenses.
In October 2015, while under supervision, Brestoff was suspended from school after school officials reported he possessed marijuana, a vaporizer, and vapes; the district labeled the conduct as drug-related misconduct.
The probation officer filed a violation report alleging Brestoff failed to attend school without unexcused absences or disciplinary referrals and attached the school’s disciplinary notice describing the marijuana possession.
The State moved to modify Brestoff’s community supervision; at the modification hearing Brestoff admitted the allegation of failing to attend school due to disciplinary referral and the court imposed detention, extended probation, and ordered substance-abuse evaluation/treatment.
Shortly after the modification, the State charged Brestoff criminally for unlawful possession of marijuana; Brestoff moved to dismiss under RCW 13.40.070(3), arguing the State must elect between modification or prosecution when based on the same conduct.
The juvenile court denied the motion; after a stipulated-facts bench trial it adjudicated Brestoff guilty. The Court of Appeals reversed, holding the modification and the charge were based on the same conduct and the charge must be dismissed with prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether RCW 13.40.070(3) required the State to elect between modifying community supervision and filing criminal charges when both actions stem from the same conduct	Brestoff: the State already modified his supervision based on the school suspension (which was caused by marijuana possession), so the State was required to elect and could not later prosecute for the same conduct	State: the modification was based on the school suspension/failure to attend, not on a new criminal offense; charging for possession was separate and permissible	Court: The modification and the criminal charge were based on the same underlying conduct (possession of marijuana); under RCW 13.40.070(3) the State must elect, so the adjudication was reversed and the charge dismissed with prejudice

State v. Murrin, 85 Wn. App. 754, 934 P.2d 728 (1997) (interpreting RCW 13.40.070(3) to require the State to elect between modification or prosecution when both are based on the same conduct)
State v. Tran, 117 Wn. App. 126, 69 P.3d 884 (2003) (adopting Murrin’s rationale that the State cannot both modify supervision and prosecute for the same offense)
State v. Rohrich, 149 Wn.2d 647, 71 P.3d 638 (2003) (standard of review for a trial court’s ruling on a motion to dismiss is abuse of discretion)
State v. S.J.C., 183 Wn.2d 408, 352 P.3d 749 (2015) (juvenile proceedings should not subject juveniles to adult criminal proceedings and punishments; JJA’s rehabilitative focus)