In re Detention of Albrecht

In In re Detention of Albrecht, 98 Wn. App. 426, 434, 989 P.2d 1204 (1999), the Court of Appeals illustrated the dangerousness of the majority's position with the following hypothetical: What if he had been living in the community under supervision for almost two years but was serving five days in jail for a DUI driving under the influence or some other minor community supervision violation? If the State had filed its petition on the day that he was incarcerated, would it be relieved of alleging and proving a recent overt act? We do not believe that the due process protection mandated by Young is so tenuous. If so, what would prevent the State from always initially proceeding with an allegation of a community supervision violation. For a person with a history of sex offenses, the conduct that the State believes constitutes a "recent overt act" would also likely be a violation of community supervision. The alleged predator could be incarcerated for the community supervision violation based upon proof of that conduct by a preponderance of the evidence. Once incarcerated, the State could file a sexually violent predator petition and be relieved of its obligation to allege and to prove a recent overt act by proof beyond a reasonable doubt. Albrecht, 98 Wn. App. at 433.