Frequently Asked Questions

DUI & Criminal Defense

Can I defer a ticket in a School Zone?

If I am pulled over for speeding in a school zone, can I defer the ticket? Answer: Yes.

People often have the belief that if they are pulled over in a school zone for speeding or any other infraction, they can’t defer the infraction. That is not the case. Generally, you can only defer a ticket once every seven years.  Specifically, you are only barred from deferring an infraction if (1) you have a CDL, or (2) your infraction is for Negligent Driving in the Second Degree and you have a “vulnerable victim” in the car (like a very young child). Otherwise there are no restrictions. So a school zone ticket is not a bar to deferring a ticket. Here is the relevant statute:

RCW 46.63.070

(5)(a) Except as provided in (b), (c), and (d) of this subsection…. the court may defer findings …  for up to one year and impose conditions upon the defendant the court deems appropriate. Upon deferring findings, the court may assess costs as the court deems appropriate for administrative processing. If at the end of the deferral period the defendant has met all conditions and has not been determined to have committed another traffic infraction, the court may dismiss the infraction.

(b) A person may not receive more than one deferral within a seven-year period for traffic infractions for moving violations and more than one deferral within a seven-year period for traffic infractions for nonmoving violations.

(c) A person who is the holder of a commercial driver's license or who was operating a commercial motor vehicle at the time of the violation may not receive a deferral under this section.

(d) A person who commits negligent driving in the second degree with a vulnerable user victim may not receive a deferral for this infraction under this section.

What is a Compromise of Misdemeanor?

I did something really stupid and was charged with a crime. Can I just pay the person back and make it go away?  

The closest thing to “make it go away” in Washington is called a Compromise of Misdemeanor. Upon the completion of a couple simple steps, it does end with the criminal case being dismissed.  

The Compromise of Misdemeanor is a mechanism in our Criminal Code that allows us in most cases, excluding DUI and DV, to pay the willing victim back and compensate them for their cost and trouble. In essence, you (or your attorney) need to communicate with the victim in the crime (unless there is a No Contact Order or Condition of Release) and see if he is interested in such a resolution.  

Three things must happen for this type of resolution to end in a dismissal.

  • The victim needs to agree and be supportive of such a resolution. The victim needs to fill out a Declaration stating that they have been “compensated” and made whole, and that they further agree that they waive all further civil remedies based on the alleged criminal act. This means the victim cannot sue the Defendant civilly at any point in the future.
  • Money, or something of value needs to change hands between the defendant and the victim. An attorney can and should act as a go-between.  
  • Once the Declaration of the victim is filed with the Court, a Judge needs to sign an “Order on Compromise." This is the document that ultimately dismisses the case.  

Once the “Order on Compromise” is signed, the case is over. At this point, the case will show as a Dismissal on your criminal history. So – aside from a Not Guilty verdict, this is as close as you can come to making a bad choice “go away.” 

What is Distracted Driving?

In July of 2017 the Washington State Legislature enacted a new Distracted Driving Statute (SSB 5289).  

The Statute makes two distinct actions unlawful. The first newly unlawful conduct is everything to do with cell phones. The second is everything that the State deems to be “Dangerously Distracting.” Below are the relevant excerpts from the Statute that describe what conduct is unlawful:  

Changes to the Cell Phone Laws

A person who uses a personal electronic device while driving a motor vehicle on a public highway is guilty of a traffic infraction and must pay a fine as provided in RCW 46.61.110(3). This section will not apply to people who are (1) using the device to report an emergency, (2) employed by the Transit Authority and using it for business purposes, (3) commercial vehicle drivers who are using the device under the scope of their employment and (4) operating an authorized emergency vehicle.  

“Uses” means “holding a personal electronic device in either hand or in both hands. Using your hand or finger to compose, send, read, view, access, browse, transmit, save, or retrieve email, text messages, instant messages, photographs, or other electronic data and watching video. However, this does not preclude the minimal use of a finger to activate, deactivate, or initiate a function of the device.”  

“Personal Electronic Device” means “any portable electronic device that is capable of wireless communication or electronic data retrieval and is not manufactured primarily for hands-free use in a motor vehicle. Personal Electronic Device includes, but is not limited to, a cell phone, tablet, laptop, two-way messaging device or electronic game.”   

“Driving” means “operating a motor vehicle on a public highway, including while temporarily stationary because of traffic, a traffic control device, or any other momentary delays.”  

Dangerously Distracted

This second section is a new law and it is written open-ended and very broad in scope. It reads that “it is a traffic infraction to drive dangerously distracted.”  

“Dangerously Distracted” means that a person “engages in any activity not related to the actual operation of a motor vehicle in a manner that interferes with the safe operation of such motor vehicle.”  

Driving “Dangerously Distracted” is a secondary offense, which means that you would have to be pulled over for a separate infraction, speeding for example, and then law enforcement can add the “Dangerously Distracted” infraction on top of the Speeding as a second count.  

Effects of this new Statute

With this new statute going into effect on July 23, 2017, the other similar (but less severe) statutes are going away. RCW 46.61.667 – Cell Phone Use While Driving and RCW 46.61.668 – Text Messaging While Driving are being repealed and have an end date of July 22, 2017.  

Another change is the reporting of this new infraction. While the old cell phone violations were not reported or made available to insurance companies, by operation of law, the Distracted Driving violations are going to be reported to Washington Courts, SECTOR users (meaning law enforcement), and the Washington Association of Sheriffs and Police Chiefs.  

Interpretation of this new statute is the largest concern that we have.  Nearly all the news coverage that this statute has received describes “eating, drinking, grooming, embracing, smoking"… as if those actions are enumerated in the statute. They are not. Nowhere in the statute are these actions listed. That is the troubling part. The “Distracted Driving” section is written so broadly that law enforcement may actually believe that these things are now unlawful. And maybe they are. The statute is so open for interpretation that everything that law enforcement wants to allege is “distracting” probably falls within the parameters of the statute. Under what we assume is law enforcement’s interpretation, there is nothing to preclude that the use of your radio or talking to your passenger is not “distracting.” The statute creates more questions than it offers concrete answers. It is a blank check for law enforcement to write this ticket.  

Additionally, the fines go up each time an offender receives one of these tickets. The base price is $136 and a second offense is $234.  

DUI: What is a PDA?

What is a Pre-Trial Diversion Agreement?

In Kitsap County District Court, often people accused of DUI hear the term Pre-Trial Diversion Agreement, or PDA. Many people call to ask us “what is a PDA and, is it a good deal?” I will answer that in two parts.  

What is a PDA?

A PDA is a contract that a defendant, in some situations, can enter into with the Prosecutor. It is an agreement to “be good” for typically two years and abide by some negotiated conditions. Generally, the conditions are (1) pay a probation assessment of about $400, (2) pay restitution to the law enforcement agency, (3) obtain a chemical dependency evaluation (and follow through) and (4) complete a defensive driving class. The “be good" means commit no new crimes for the duration of the agreement.

If these conditions are met during the agreed upon time period, typically the charge of DUI is reduced down to the lesser charge of Negligent Driving in the First Degree. This will come with zero days in jail and a nominal fine.  

Not everyone qualifies for such a contract but, if you are accused of a DUI, you should always find out if such a deal can be offered. Issues that preclude the Prosecutor from offering this contract include, but are not limited to – priors, refusing the breath test, or a high blow. 

Is it a good deal?  

That is hard to say. In most circumstances, yes. In other circumstances, it is not a good deal. For example, if a defendant has a great suppression issue, then that defendant may need his attorney to push for an outright dismissal of the case. It is absolutely a case by case determination. There are a vast number of defenses that can be present that only a DUI defense attorney could recognize.  

What should I do if I am accused of DUI?

You need to contact a well-respected DUI defense attorney right away. There are some defenses that are time sensitive. A PDA may be a good deal, and it may not. It all comes down to the facts of your individual case.

First Appearance?

A friend or family member calls you from jail. They were just arrested and want help. Most likely, you have no idea what to do or what will happen next. Obviously, that will depend on the specific details of your friend’s case and, for that information, you’ll need to contact a criminal defense attorney. However, generally speaking, there are some fairly standard things that will happen post-arrest.

The first procedural step (what has to happen according to court rules) will depend upon the seriousness of the crime, whether a warrant was issued or whether the person was arrested by an officer without a warrant, whether the crime falls under the jurisdiction of the state or federal law, and where the detained person is geographically in the state. Yes, depending on where you are arrested (city, county, tribal land, military base), the terms and timelines might vary. 

When an officer learns of a crime that has been committed or will continue to be committed (perhaps human trafficking that is ongoing), the officer will organize information such as sworn statements from witnesses or victims that she can present to a judge. The judge can review this information to find probably cause and issue an arrest warrant for the person suspected of committing this crime. When the officer finds the suspect, the officer can then arrest the person under the authority of an arrest warrant. 

While arrest warrants are not uncommon, most people are arrested by a police officer or deputy while a crime is being committed or was recently committed. In such cases, the officer would be arresting the person without a warrant—making it a warrantless arrest. When a person is detained in jail under these circumstances, the Criminal Rules as well as case law interpreting the Constitution, the State (prosecution) is required to bring the accused before a judge within 48 hours or by the end of the next court business day. Again, this timeline varies somewhat depending on the jurisdiction and, additionally, the remedies for violating the timelines also vary depending on the jurisdiction (state vs. federal).

So, why can an officer arrest you without a warrant signed by a judge? Well, the officer is allowed to make an initial probable cause determination while on the job. For obvious reasons, officers can’t always determine in advance that a person will commit a crime. For example, if the officer pulls over a vehicle that has been swerving and the driver smells of alcohol, the officer must determine in that moment whether the facts and circumstances are sufficient to warrant a prudent person to believe a crime has been or is being committed and then arrest the person. In that case, the officer has made an initial probable cause determination which will later be reviewed by a judge.

Let’s assume your friend Susie was just arrested on Friday night. There is no court over the weekend so Susie will not appear before a judge until Monday. Depending on various factors, Susie might not be able to bail out of jail and will have to sit in jail until Monday. In either case, she will appear before a judge on Monday. This appearance is called a First Appearance or, in federal court, it can be referred to as Initial Appearance.

The First or Initial Appearance will be a quick 15 minute hearing (except that you have to wait for everyone else on the court calendar…so it can take hours). The purpose of this hearing is to have an objective party (the judge) review whether the officer’s interpretation of the facts preceding the arrest supports the officer’s finding of probable cause. Basically, did the officer properly find probable cause before he or she decided to place the defendant under arrest? In Gerstein, the US Supreme Court found that the Fourth Amendment requires a judicial officer (a judge) to make “a fair and reliable determination of probable cause as a condition for significant pretrial restraint of liberty” and therefore Courts use the First Appearance to determine whether probable cause existed for the initial arrest. Gerstein v. Pugh, 420 U.S. 103, 125 (1975).  It is important to note that First Appearance determination of probable cause is for the the officer’s initial arrest only and, therefore, subsequent contests of probable cause fall under Due Process violations rather than the Fourth Amendment. Obviously, this is the nitty gritty stuff you pay your lawyer to figure out and argue at the appropriate time! 

So what else happens? Well, in the same 15 minutes that the judge determines if the officer should have arrested you, she will also (1) ask you to give some basic information (date of birth, full name, etc.), (2) read the charges against you and inform you of the maximum penalties for that charge, and (3) advise you of your right to counsel (have an attorney). The remaining advice depends on which court you are appearing in for this hearing. 

If you are being charged with a Misdemeanor and your First Appearance is in District Court, certain counties do not staff this hearing with a Public Defender. Therefore, you will then be advised that you must appear at another hearing called a Preliminary Hearing where they will also explain that you have a right to a trial and right to trial by jury. Additionally, since a Public Defender (or your own private defense attorney) will be present, you can enter a plea (presumably not guilty if you hired an attorney). You can also contest probable cause at this hearing.

If you were arrested for a Felony and your hearing is in Superior Court, it is very likely that a Public Defender will be present in the courtroom and, therefore, your First Appearance will also be considered an Arraignment (because, with an attorney present to consult with, the defendant can now enter a plea) so the judge will inform you of your right to trial by jury as well as ask for a plea of guilty, not guilty, or no contest. Additionally, if you have not bailed out and the court is not releasing you on your own recognizance (O.R.’d or P.R.’d), the judge will set bail and conditions of release. If you have an attorney present, the attorney can attempt to argue for lower bail or less restrictive conditions of release. Additionally, if you hire a private attorney, you will likely be advised of steps you can take in advance of your First Appearance or Arraignment so that your arguments for lower bail or fewer conditions are more likely to be granted.

Finally, regardless of whether your First Appearance/Arraignment was in District or Superior Court, the judge will also set the next hearing date and trial date. Depending on the court you are in, the future hearings will be called Pretrial (the common name in District Court) or Omnibus (used in Kitsap County Superior Court). Of course, different counties sometimes use different terms but the purpose is the same. The next Pretrial or Omnibus hearings are to get ready for trial and set dates for any motions that the Prosecution or Defense intend to argue before the actual trial (such as suppression of evidence or assert defenses).

Should I bail my friend out of jail?

Should I bail out my friend?

If a friend or family member is arrested over the weekend, what should you do?  It is a question that people struggle with because you have to weigh the desire to get them home with the belief that it will help them learn a lesson.  When people call and seek advice regarding bail, it is typically for guidance between these two options.  

I would add and argue that there is an unknown third consideration that is more important than the previous two: effect on the outcome of the case.  

When a defendant is held in custody, it has numerous negative impacts on the ultimate resolution of the case.  

  • When a person sits in custody, the Prosecutor has all of the power. If a person was arrested on Friday or Saturday night and they sit in custody until Monday, by the Arraignment, they have most likely served their sentence. So the person is faced with the option to plead guilty and get out, OR, continue the case and continue to remain in custody for an additional two or three weeks. Basically, if a person is in custody, the State can leverage them into pleading guilty. People don’t want to sit in-custody for three weeks when they can get out now – even if it means a conviction goes on their record. While in jail, people think about their jobs, family, pets and shame. It often leads them to the conclusion that they should plead guilty at the earliest opportunity so that they can return to their responsibilities. Young people will often plead guilty and try to get out quickly and hide the matter from their parents.  

  • An in custody defendant does not get the attorney of their choice. If a person is in-custody, the Court automatically appoints them an attorney. They may get a terrific public defender or they may get a public defender who is not terrific. Either way, the in custody defendant does not get to choose who the Court appoints to their case.  

  • Deals that are often available to out-of-custody defendants are not usually available to those who are in-custody. Refer to 1., above. This is because the prosecuting attorneys know they have leverage over the in-custody defendant. If the prosecutor plays it right, they can usually squeeze a guilty plea out of someone whose case, if out of custody, would be resolved in a more lenient way. Anyone who has worked in a prosecutor’s office knows that they are driven by statistics. The more pleas and guiltys, the better the statistics for the office. It is easier to up those stats by forcing pleas out of in-custody defendants.  

Don’t let a friend or loved one be a statistic for the State. They will be at a disadvantage in their defense if they are held in custody. While it may not “teach them a lesson” to bail them out right away, it will help them immensely in their defense of the case. And the better the case is defended, the fewer long term consequences it will have on their life.  

There are plenty of good bail companies in Pierce and Kitsap Counties. And we provide excellent defense – but it is easier to defend a person’s case if they are out-of-custody. Think long term and not on the short term “lesson.”  

What is Probable Cause for DUI?

The Officer says there is “Probable Cause” to arrest me for DUI? What does that mean?

The offense of DUI or Driving Under the Influence consists of “driving while under the influence of intoxicating liquor or any drug.” You can drive after consuming alcohol so long as you are not impaired by the alcohol. Thus, a person can legally drink and drive, but the two activities cannot be combined to the degree where the drinking affects the driving.  

Allowing some amount of alcohol to be legally consumed before driving begs the question – what is the threshold for “Probable Cause?”  

Law enforcement can arrest an individual for drunk driving based upon probable cause. It is important to know how law enforcement and the Courts determine or interpret probable cause. Courts have ruled that P.C. to arrest must be based on the facts known to the arresting officer at the time of arrest, not facts established after the arrest. It is a judgement call where the facts and circumstances known to the officer would warrant a reasonably cautious person to believe that the offense of DUI is being committed. P.C. needs to be more than a bare suspicion of criminal activity, and it should not be viewed in a hyper technical manner. It is determined by viewing the total facts of each case, viewed in a practical, non-technical manner.  

Typically, the Courts deem that an officer’s report notating blood shot watery eyes, slurred speech and an odor of alcohol is enough. It can be one of these or any combination. Courts have consistently held that odor alone can rise to the level of probable cause. Poor driving does not need to be present for the probable cause determination. 

What is the difference between a misdemeanor and a felony?

In Washington State, Misdemeanors and Gross Misdemeanors are handled in Municipal Courts and District Courts. The difference between Misdemeanors and Gross Misdemeanors is the maximum time that a Court can impose. For Misdemeanors, the maximum is 90 days in jail and a $1,000 fine. For Gross Misdemeanors, the maximum that a court can impose is 364 days in jail and a $5,000 fine. These cases are typically DUI’s, licensing offenses, small theft cases, reckless driving and trespassing to name a few. Guilty findings on some of these offenses can result in loss of your license, requirement to have an ignition interlock on your vehicle, no contact orders, no trespassing orders and potential restitution payments to victim. They are less serious and carry less potential jail time than felonies. An upside to Misdemeanors and Gross Misdemeanors handled in District and municipal Courts is the availability of alternative methods of resolution – like Pretrial Diversion Agreements, Stipulated Orders of Continuance, Continuances Without Findings, Civil Compromises and Deferred Prosecutions. While these cases still have the potential to be life changing, they do not have nearly the consequences that are present with a felony conviction. Most District and municipal Courts have a “rehabilitative model” and encourage treatment and counseling.

Felonies are more serious than Misdemeanors. They are classified as C’s being the least serious, up to A’s being the most serious. Felonies can carry sentences all the way up to life in prison. Felonies are handled in Superior Courts and there are very few alternative methods of resolution. Unlike the rehabilitative model of District Courts, Superior Courts have a punishment model. They impose jail and sanctions more frequently than imposing treatment or counseling. 

  

Personal Injury

Isn’t it greedy to try for a larger settlement by hiring an attorney?

It is very honorable to consider whether it is fair for you to be compensated. Unfortunately, people sometimes “take the high road” and want to let the at fault party walk away before they know whether they are hurt. Often, victims of auto accidents do not realize they are injured. It could be a soft tissue injury that flares up a day or two later or perhaps a concussion that they didn’t realize they suffered. The stress or adrenaline at the scene might mask the initial injury. The injured person goes home or back to work and realizes later that they’ve had a headache for days or their back is throbbing. It is always best to seek medical advice immediately following any accident. Let a medical professional determine if you need further follow up care with a specialist or other protocol that keeps you on the road to proper recovery.

And, if you are injured, there is nothing greedy about using insurance to help you on that road to recovery! That is why we all carry insurance. And, for the record, we don’t think the insurance companies feel particularly guilty for the profits they make from collecting premiums. You paid for the service of insurance and, unfortunately, you need to use it. That is not greedy. It was responsible that (hopefully) all parties involved carried their required insurance.

Why can’t I handle the insurance companies?

Most likely, you can handle the insurance companies. The more important question is whether you want to.

Problems arise when you plan to be compensated for more than just the loss of your car or perhaps your medical bills. If your life turns into a nightmare, with medical bills sent to collections, don’t expect the insurance company to compensate you for that headache. Not all medical service providers will wait for payment while you are working for months on a settlement. Your issues with collection agencies or ruined credit is not something insurance companies are concerned with or will compensate.

Basically, whether you need an attorney really depends on what you expect in the end. If you expect the process to run smoothly, you might want an attorney. If you prefer to spend your time with family and friends rather than tracking medical bills in collection, you might want an attorney. If you feel that missing work, renting a car, spending weekly visits at health care providers, and tracking your bills for hours a day, should be compensated for more than just the exact dollar those things cost you, you might want an attorney. Dealing with insurance companies is a full time job. If you already have a job, you might want the Witt Law Group to handle the job of your auto accident.

What is PIP insurance and why is it necessary?

PIP stands for personal insurance protection and it is an extension of car insurance that covers medical expenses and, in many cases, lost wages. In Washington, you are not required to have PIP but, if you reject it, you must do it in writing. PIP is often called “no-fault” coverage due to the fact that claims are paid out regardless of who is at fault in the accident. There are a few situations where PIP doesn’t apply—injuries caused by farm equipment, off-road vehicles, mopeds, and, depending on the policy, motorcycles. Additionally, for PIP to apply, the services must be reasonable, necessary, related to the accident, and incurred within three years of the accident. (Office of the Insurance Commissioner)

What is UM and UIM insurance?

The Insurance Research Council (IRC 2017 ed.) recently produced information regarding the number of drivers who are on the road without insurance. While the national average used to be that 1 in 8 drivers were uninsured, the numbers have increased. It is very important to know your likelihood of being hit by an uninsured driver when you consider rejecting UM/UIM coverage. According to the IRC, Washington ranks 7th in the nation for most uninsured drivers. In our state, you have almost a 20% chance of being injured by an uninsured driver (as measured by the ratio of UM claims).

Under UM (uninsured) and UIM (underinsured) insurance policies, you can be protected when you are injured by a driver who does not have any insurance or does not have an adequate policy to cover the costs. It can also help you in the case of an unidentified hit and run driver. These policies will help with medical expenses, services, and lost wages. Due to the high numbers of underinsured and uninsured drivers, being able to use UM/UIM insurance can be extremely helpful (perhaps even critical) in your auto accident recovery.