Jennifer Witt

Jennifer Witt

Choose your insurance coverage wisely 

Recently, we were dealing with a first party agent regarding a car accident case. We were commiserating about the difficulty of dealing with the agent of a certain company. This person mentioned that everyone in the industry knows this company is intentionally difficult. They are terrible as third party but also terrible with their own insured as first party. She stated that, “Everyone in the industry knows they are impossible to deal with!” Even if you just need a rental car, they will make it so difficult that you give up. We would probably have to second that sentiment (although there might be a tie with another company). 

When you are choosing auto insurance, be sure to check the reviews of any company you’re considering. Saving a few bucks on your premiums may not be worth it. Check reviews online, ask around, and contact insurance agents. Make sure you make an informed decision. There can be a big difference in customer service among the various companies. Your premium might be higher for a certain company but your stress after an accident could be much lower!

 

“My case is worth 3 times my medical expenses”—Problems With This Personal Injury Myth

 

One of the most common myths when handling injury cases is that there is some magic “multiplier method” for getting a certain amount of money offered by the third party insurance company. Most often, we hear 3x medical costs. We’ve even heard as high as 7x medical! That would be awesome! That sure would make our work a LOT easier!

 

Origins Of The Myth 

 

So how did this myth get started? Well, it was somewhat true decades ago. Unfortunately, the myth continues in various forms all over the internet. Today, the multiplier myth is most often used on click bait websites to help simplify the personal injury process and get a person to sign up with a law firm. This myth is also passed along by friends who tell the injured person, “I got 10x my medical bills and I was hardly hurt!” The friend forgets to mention a few facts such as it happened in California in the 90’s, she was scarred by some object in the car, there was a permanent disability as defined by the AMA guidelines, or she actually broke a bone but decided not have the surgery (which was part of the settlement offer). Then, the person who is injured in “reality land” now assumes that if he or she racks up enough medical bills, there will be a much bigger settlement at the end. Much to the victim’s disappointment, she racked up $25,000 worth of medical bills and receives a $15,000 settlement offer for her soft tissue/whiplash injuries. Not good.

 

While it is true that “medically necessary” treatment has an impact on the value of a case, the insurance companies are always on the look out for injury victims who are faking or exaggerating claims. They hammer those individuals the most. They want the plaintiff’s attorney to file a lawsuit after a low ball settlement offer because the adjuster firmly believes a jury will not like the client. There are many studies to show that it’s a pretty successful strategy.

 

Once a lawsuit is filed, the third party is permitted to see a full medical history. They will poke around looking for ANY past injuries or issues to explain that your past medical conditions are the real problem. If the insurance company believes you are faking any of your symptoms, be prepared for an independent medical exam request. Their experts want to establish that you are a malingerer or committing fraud by faking your claim.

 

The third party experts might employ Waddell testing, the Autobiographical Implicit Association Test, or any other series of exams or tests to establish that your injuries are not real or are exaggerated. They can prove their assertion if the tests establish there is inconsistency between your physical findings and your stated symptoms. The goal is to make a pitch to the jury that you are faking it. So, while it’s important to be detailed as you describe pain and symptoms, never exaggerate to a medical professional. People who exaggerate run the risk of a physician labeling you a malingerer.

 

Obtain Guidance For Your Personal Injury Case 

 

If you have questions about treatment or projected settlement figures, talk with your attorney. And, most importantly, don’t seek treatment simply to bolster the medical bills in your case. It will hurt you in the long run. The nature of the injury will dictate the range far more than the treatment. If you broke your arm but decided to forego an optional surgery, your broken arm will be compensated at a much higher amount than a person who has whiplash and elects to treat with various providers for more than a year. Additionally, where your accident happened can be one of the biggest predictors of the amount an adjuster will offer. The insurance companies are keenly aware of jury awards in various cities and counties. If your accident happened in a county where juries typically don't offer much for soft tissues injuries, expect your settlement offer to reflect that information. This doesn't mean you have to accept the low offer but it's important to understand how your local jury might respond if you take the case to trial. 

 

Every case is unique and it’s important to be informed by accurate information and not anecdotal stories. Again, always consult with your attorney about questions and don’t rely on internet searches about case results from a decade ago. If you were injured due to someone else’s negligence, you are entitled to compensation. Don’t compromise that settlement by listening to bad advice.

Most crimes at the misdemeanor / gross misdemeanor do not have “sentencing guidelines” like crimes do at the felony level. Driving While License Suspended in the First Degree (or Habitual Traffic Offender Status) is one of the few exceptions to the rule. For a conviction, the punishment is harsh and escalates rapidly for each offense. DWLS 1 has by far the most severe mandatory sentencing for any crime at this level.

A person is designated a Habitual Traffic Offender by:

1) Accumulating three major traffic offenses within 5 years. (major traffic offenses are DUI, Reckless Driving, Hit and Run, Driving With A Suspended License, Eluding, Vehicular Assault, and Vehicular Homicide), or
2) Accumulating twenty driving infractions within 5 years.

The Department of Licensing determined the 5 year period based on the violation date and not the date of conviction.

Loss Of Driving Privilege

 

Being designated a Habitual Traffic Offender (HTO) in Washington State can have devastating consequences to you. There is mandatory jail time for those who violate the driving restrictions and there is a lengthy restriction period of 7 years. During this period, the person may not drive. There is no occupational, restricted, ignition interlock, or other alternative licensing options. This suspension is set by the Department of Licensing and is separate from any other driving penalties set by a court due to a criminal conviction.

There are only a few options to restore your license following a HTO designation.


1) You do not drive for the entire 7 years and then you follow the protocol as designated by the DOL to reinstate your license. You must take proactive steps as your license is not automatically valid after the 7 years.
2) Petition for a early reinstatement 4 years after you were first designated a HTO. The details are below. If you are successful with this petition, you may still need to comply with extra conditions such as an ignition interlock on your vehicle and carry SR-22 (high risk) insurance.
3) Seek a stay on your revocation based on your alcohol or drug dependency. This can only be done after you have completed a 2 year treatment program and you meet other conditions of the review. You will be on “probation” for the remainder of the 7 year HTO period but, if you keep an ignition interlock and high risk insurance, you will be able to restore your driving privilege.

Reinstatement Hearings

 

According to the Department of Licensing, you may qualify for a reinstatement hearing if:

1) You have been designated HTO for at least 4 years,
2) There is no evidence that you have driven within the past 2 years,
3) If you had conditions regarding alcohol or drug treatment, you have met all of those requirements,
4) You are not suspended for non-compliance with your treatment,
5) At least one year has passed since any previous reinstatement requested have been denied.

CLICK HERE for info on how to request a Reinstatement Hearing

Additionally, if your license has been suspended for other issues such as unpaid fines, there may be other conditions (such as payment of fines or child support) that you must comply with before you can seek to have your license reinstated.

Drug and Alcohol Dependency

 

You may qualify for a “stay” on your revocation if you meet certain conditions. At your DOL hearing, you would need proof that you have been assessed “substance dependent,” you have completed a treatment program and are compliant, you are not in HTO status for violating a previous stay or probation, and the offenses leading up to your revocation were due to alcoholism or drug addiction.

Consequences of Conviction

 

Each progressive conviction for DWLS 1 has exponentially harsher minimum sentences. For the 1st offense, the minimum is 10 days. The 2nd offense carries a minimum sentence of 90 days, and the 3rd offense has a minimum of not less than 180 days in jail These are charges not to be taken lightly.

If you are facing a designation of Habitual Traffic Offender, it is critical that you seek the advice of an experienced criminal defense attorney. Occasionally, there may be a challenge to the validity of the designation but time is of the essence.

Do not ignore the warnings by the Department of Licensing or drive once you are notified of the designation. Even if you believe it to be inaccurate, you do not want to compound the problem with additional criminal charges. At Witt Law Group, we offer free consultations. If you are unsure of how to proceed, give our office a call.

As Bob Dylan sang to us in 1964, The Times They Are A Changing. Historians say Bob wrote the song in October of 1963 and so it seems appropriate that this month we want to revisit the message again, nearly 55 years later.

The picture above is Ryan’s mother and my mother doing a little pellet gun practice with our kids. I realize it isn’t the normal image one might advise I use in today’s climate of gun reform or gun violence but, I assure you, they are peaceful and non-violent Grandmothers.

I use this picture because it tells a story of time and perspective. If this picture were taken six or seven decades earlier, these ladies wouldn’t be holding pellet guns. Ryan’s mother was raised in Texas and my mother was raised in Montana. Like all people, they are a product of their environment. What is perceived as normal is based on what you experience all around you. Ryan was raised in Alaska, where everyone had a gun rack on their truck (usually with a gun in it) parked at school. When he lived in Fairbanks, everyone entered the schools and the banks with their guns strapped on. In Texas, Montana, and Alaska, guns were used for protection—necessary protection for the survival of you and your animals.

When Ryan came to the lower 48, he noticed something different. Guns were carried for more than protection. There was some status to having a gun and being able to talk about your gun. For our mothers and for Ryan, you never talk about a gun, you use a gun. If a bear is coming at you, there isn’t a lot of gun waving and and threatening, “I’m going to put a cap in you, bear.” You just fire off a round and hope the bear gets the message that she should retreat.

Ryan and I both grew up knowing that a gun wasn’t a way to solve a problem (other than a bear coming at you). In our upbringing, guns really weren't associated with fighting. That didn’t mean we weren’t taught about fighting. Knowing when to fight and how to fight was just as valuable as knowing how to participate in family chores, take care of your pets, or do well in school. It was a life skill. I don’t recall who taught me how to hold my fist, but I very clearly recall understanding that I would break my thumb if I did it the wrong way. Built into the lesson plans was also an overall understanding of “don’t write checks that your body can’t cash.” Basically, don’t run your mouth in the wrong place or to the wrong people. We also learned that you don’t start the fight but, in defense, you better end the fight.

I realize there are people who only believe in “turning the other cheek” and might take offense to our early lessons—but I think they were valuable. We learned time and place or the context for when defending yourself is appropriate. I have no problem admitting that I’ve thrown a punch. I didn’t start the fight but, when someone hit my cousin, I think my response was completely appropriate. I grew up hearing stories about how my Uncle Ray, who was developmentally disabled, was teased by some boys on the school bus. I don’t recall if it was my Uncle Bob or Uncle Bud who had a little “Billings-style boxing match” after they got off the school bus, but the teasing stopped. In that way, kids learned not to run their mouth or write checks their body couldn’t cash. For me, the guy who hit my cousin learned fairly that he didn’t have the funds to cash that check.

When Ryan came down from Alaska to visit a friend heading out on deployment, he had his first interaction with “weapon” fighting. He and his friends were strolling through an area with fraternities when a group of about 20 young men came out of their frat to fight. One of the college kids threatened to cut them with a knife. Ryan kind of laughed at that because it sounded so ridiculous. I will spare you the details (although some of it is quite funny) but, word to the frat world, boys should not fight men—especially Alaskan men who lift weights 3 hours a day and one is the heavy weight boxing champ of Alaska. Don’t worry, there was no blood shed—just some bruised egos.

The point of these stories is that it is quite obvious we grew up in different times. If you threatened someone, insulted them for their sexuality or race, or made derogatory comments about their family, no one felt sorry for you when the insulted person cleaned your clock. No one called the cops or the prosecutor. But, times are changing. Instead of learning that you shouldn’t run your mouth, many people run their mouth and then waive around a weapon. They start fights but try to look like a victim when law enforcement arrives.

Why would we highlight this strange change in times? Well, because, more and more, the people who actually start the fight tend to win. By win, we mean they are not the ones who end up being arrested. They love to run their mouth off in a bar, insult your girlfriend, and call you gay. You might ask to “take it outside” to teach them a lesson but they head out to their car to pull out a gun. These people who use “fighting words” don’t actually fight and, when they do, they usually get their @#% kicked. So, when law enforcement arrives, you get arrested. If you never hit them, they will still tell law enforcement that you followed them outside and they felt threatened. The times are changing—and they play by different rules.

So, while many of us could understand that “taking it outside” might seem reasonable, that response no longer works the way it did decades ago. You have to back down. You have to take the insults. You have to walk away. The real reason you must retreat is that the check your body has to cash is way too expensive today.

Today, law enforcement is called for every altercation. There is very little “down time” and, when they respond, situations often escalate rather than deescalate. They don’t have time (or perhaps desire) to find out who started the fight and why. Usually, the most sympathetic (sometimes just pathetic) person is deemed the “victim.” The other person is arrested. Additionally, depending on the county or city you were arrested, certain prosecutors don’t care whether the person baited you into a fight. It doesn’t matter that they called you a racially derogatory term. If you choose to fight, you have to accept that your actions will likely amount to a criminal charge. Law enforcement doesn’t hold trial at the bar or the sports field. They simply arrest you, file a report, and you go to jail.

Getting arrested is just the start of the “costs” of fighting. To hire a defense attorney who can present your side of the story to the prosecutor, it will cost you anywhere from $2500 to $10,000—and there are no guarantees. Criminal charges are a lot like math equations. If the prosecutor can make the three or four elements of a criminal statute add up, you get convicted. If you don’t want to test your luck at trial (and face a much longer sentence), you might feel forced to plea to a lesser charge. Additionally, the process lasts a long time. While you’re trying to move on and apply for a new job, your case may linger for months or even a year. In that time, no one can answer whether you will lose your job, spend months or years in jail, and be forced to say goodbye to your family.

Hopefully, if you’re like us, as we have grown older we rarely encounter situations where a fight could happen. Unless someone grabs the last Costco pumpkin pie during Thanksgiving week, I’m probably not “taking it outside” anytime soon. However, when it happens to those of us from another era, it’s important to know what our response has to be. We need to check our egos and decide whether the fight is truly necessary. While someone should get their ass kicked, you probably don’t want to be the one paying the price for it. While it’s hard to walk away, remember that a pathetic name-calling jerk is not worth your freedom or hard-earned money.

Sometimes it’s hard to react differently when your instincts say something else. So, have a game plan. We take the calls after the fact and see the mess it creates. We don’t want more of these calls. In our minds, there is an element of unfairness to criminal charges for certain fights—but, despite this, we must learn to change with the changing times. In the words of Bob Dylan, “You better start swimmin’ or you’ll sink like a stone. For the times they are a-changin’.”

October 12, 2019

Disorderly Conduct

Disorderly Conduct charges generally arise when tempers and language boil over the generally accepted social norms. When a confrontation escalates to the point that there is a likelyhood of violence, the person who is raising the temperture of that confrontation can be charged with Disorderly Conduct. This is a criminal charge that is brought by the State (or a City), and not by a private individual.

Do You Have A Disorderly Conduct Charge? CLICK HERE And We Will Contact You Within 15 Minutes

According to RCW 9A.84.030, a person commits disorderly conduct if she:

1. Uses abusive language and thereby intentionally creates a risk of assault;

2. Intentionally disrupts any lawful assembly or meeting of persons without lawful authority;

3. Intentionally obstructs vehicular or pedestrian traffic without lawful authority; or

4. Meets the following:

(i) Intentionally engages in fighting or in tumultuous conduct or makes unreasonable

noise, within five hundred feet of:

(A) The location where a funeral or burial is being performed;

(B) A funeral home during the viewing of a deceased person;

(C) A funeral procession, if the person described in this subsection knows that

the funeral procession is taking place; or

(D) A building in which a funeral or memorial service is being conducted; and

(ii) Knows that the activity adversely affects the funeral, burial, viewing, funeral procession, or memorial service.

If the prosecutor is charging a person under the first part of the statute for provoking a fight, there must be some evidence that your “fighting words” were intended to actually start a fight. A person can be insulting to another person and make offensive statements but, in some circumstances, the words rise to the level that an average person would understand the statements to be provoking a fight. Certainly, if the defendant made statements like, “You think you can take me?” or “I’ll knock that smile off your face.” Statements that are derogatory to a person’s race, ethnicity, or sexuality can also rise to disorderly conduct.

Under the second prong, a person yelling at a City Council meeting could be charged with disorderly conduct. If a person yells or makes offensive statements during the time he or she is permitted to address the Council, this is probably not disorderly conduct. However, if the person continues to yell after their turn or yells while other people who are speaking, this will likely rise to disorderly conduct.

The third prong is used mostly with political protests. If a person gathers with other people and intends to stop traffic to garner attention to a cause, it would be hard to argue that this act was unintentional. If the organizers of the protest have the appropriate permits to hold the rally or demonstration, blocking traffic should not rise to disorderly conduct. If the protest ventures outside the permitted area or designated area for marching, it could be possible to be arrested for disorderly conduct.

Finally, if a person intends to disrupt a funeral service and knows that it will adversely affect the event, this is disorderly conduct. This is a fairly straightforward. If a person was not invited to a funeral and is there for the purpose of protesting or causing a scene, this conduct will likely rise to disorderly conduct.

There Are Positive Ways To Resolve A Disorderly Conduct Charge

There are defenses to disorderly conduct but, for the most part, a defense attorney is attacking the element of intent. Depending on the reason for the criminal charge, there could be defenses as to whether abusive language or “fighting words” were stated by the defendant. In the case of disrupting a funeral, was the defendant within the required 500 feet of the event? If you were arrested at a protest or a City Council meeting, there could be a challenge to proving identity. How did the officers know the defendant was the person yelling or causing the disruption? Disorderly Conduct can be a complex charge and it is best to consult an experienced criminal defense attorney for advice on the unique challenges to a particular case.

Additionally, Disorderly Conduct cases are handled in District and Municipal Courts, as they are misdemeanors. Being that they are handled in these “lower” Courts, there are more options regarding how to resolve a Disorderly Conduct case other than going to trial or pleading guilty.

Most jurisdictions have some form of a Pre-Trial Diversion Agreement, which is essentially a contract between the Defendant and the Prosecuting Authority. With this type of Diversion Agreement, the Court does not sentence a defendant, the Court merely approves the contract between the parties (the Defendant and the Prosecutor). If the defendant abides by the terms of the contract, the Disorderly Conduct charge is typically dismissed at the end of the agreed upon term. Procedurally, the case goes onto a long continuance and then ends in a dismissal – there is never a conviction if all the terms are met.

CLICK HERE FOR MORE INFORMATION ON PRE-TRIAL DIVERSION AGREEMENTS

If a defendant wishes to not resolve the matter through a Diversion, they always have the right to go to trial. At trial, a defendant can require the Prosecutor to prove every element of the Disorderly Conduct charge beyond a reasonable doubt.

Witt Law Group serves individuals who have been charged with the crime of Disorderly Conduct in Kitsap, Pierce and Jefferson Counties. We also handle cases in nearly all the cities within those Counties. We have offices in Gig Harbor, Bremerton and Poulsbo for your convenience. We offer free consultations and can be reached at (360) 792-1000 (Bremerton) or (253) 312-3838 (Gig Harbor) or (360) 773-8598 (Poulsbo) or you can text one of our attorneys at (360) 710-0027.

If the topic of Disoderly Conduct was interesting to you, please CLICK HERE to read more similar articles in our Blog.

More and more people are receiving a Summons to Appear on criminal cases and it’s causing some confusion. Why is the Prosecutor waiting so long to decide whether I broke the law?

Why The Change?

 The landscape of criminal law has changed somewhat. Part of the change is the way in which law enforcement responds to alleged crimes. Lower priority crimes where there isn’t an imminent public safety concern, such as property crimes or trespassing, the officer might investigate the crime days or weeks later. In those cases, the person or people who are believed to have committed a crime will receive a Summons to Appear on the criminal charge weeks or months later. Where law enforcement deems there could be a threat to public safety or courts generally want to set some kind of conditions on behavior of an accused, law enforcement will arrest the person so these conditions can be set immediately. This happens more often in cases of Assault or DUI.

 

But I Received a Summons for a DUI

 While it is true that most DUI charges originate by way of arrest, booking, and appearing for Arraignment within a few days, that seems to be changing. Where the person alleged to have driven impaired is accused of using marijuana, the officer will draw blood for a THC reading and other substances. Those blood samples are sent to the state toxicology lab and the result is returned to the arresting agency. Currently, the results are returned almost a year after the arrest. This delay is the longest we’ve ever seen it.

 

For marijuana arrests (and other substances), the person accused of driving impaired might be arrested and released or no arrest may occur at the scene. The person might reasonably believe he or she has not committed a crime and follow up is unnecessary. This would be a bad assumption! If you or someone you know has been arrested for a crime or been in contact with law enforcement as a suspect, they MUST keep their address up to date with DOL. Realize that doesn’t mean the Summons will definitely reach you. It is still possible that a Warrant will be issued for your arrest.

 

I Gave DOL My Current Address But I Never Received The Summons

 This scenario is becoming a more common occurrence. The person who was arrested and released moves away (not yet formally charged with DUI) and is careful to update DOL with their new mailing address yet ends up with a warrant. Unfortunately, if the officer wrote down the address from your license, this might trump any DOL updates. To be honest, we aren’t certain about the many ways the address issue is arising. We have had clients call DOL 3 to 4 times a year to make sure their mailing address is accurate and the Summons will still be mailed to an old address.

Avoid The Warrant! 

One way to avoid getting a Warrant in the process of being charged through a Summons is to hire an attorney to monitor your case. At Witt Law Group, we contact the Prosecutor’s office weekly to check on our clients’ status. If they have been charged, we notify the client and file our Notice of Appearance on the case. A Notice of Appearance can’t be filed before the case is charged because there won’t be a case number. Once we have the case number, we can request discovery from the Prosecutor (all the evidence that the state is using to prosecute you) and begin working on your defenses. When our Notice is filed, we will also be notified of your upcoming court dates and immediately contact you so that you do not miss a date. When a person misses their initial court appearance, it is very bad for the case and a Warrant for your arrest will be issued.

Summons For Crimes In Kitap County

Finally, Kitsap County has been using Summons more frequently due in part to the increase of marijuana DUIs. However, it should be noted that we are seeing an overall increase on charging through Summons in all neighboring municipalities. Bremerton and Poulsbo are increasing this practice so be aware that, if you have had contact with law enforcement in these cities and were not arrested, you should seek a consultation regarding your risk for a future criminal charging through a Summons.

July 16, 2019

Bail

14 Billion Reasons Why We Need Bail Reform 

 Most Americans do not fully understand the pretrial portion of our justice system. While many know you are presumed innocent until proven guilty in a court of law, most don’t realize that hundreds of thousands of Americans sit in jail waiting to have their day in court. They are not sitting in jail because they have been convicted or plead guilty. They sit in jail because they are too poor to bail out.

According to the Pretrial Justice Institute, nearly 750,000 people are held in our nation’s jails daily. Two-thirds of these people have not been convicted of a crime. Taxpayers spend approximately 38 million per day and 14 BILLION annually to house citizens waiting for trial who are mostly low risk. Pretrial inmates account for 95% of jail growth from 2000 to 2014. (see Pretrial Justice Reports—Pretrial Justice: How much does it cost? & What pretrial system look like without money bail)

Why are so many Americans sitting in jail without a conviction?

According to a report on the Economic Well-Being of US Households by the Board of Governors of the Federal Reserve System, nearly half of Americans can not afford a $400 emergency. Posting the $5,000 bail for a DUI, whether by using cash or a private bail bondsmen, is simply not possible.

Consequently, poor and working class people are held in custody while they wait for trial. As a result, they have limited hours in which they can meet with their attorney (assuming their public defender will have the time to see them in jail) and they will pay the average $1 a minute charge to use the jail phone to reach their attorney and family members. For most, a jail stay of more than 3 days will cause catastrophic damage to their lives—losing jobs, falling behind in rent or mortgage, and negative family consequences due to stress. (see Reports from Pretrial Justice Institute) On the other hand, wealthier members of the community are able bail out, go back to work, be with family, and strategize with their attorney prior to making any significant decisions regarding their case. 

Why do we keep people in jail if they haven’t been convicted? 

In most cases, when a person is charged with a non-capital offense, the presumption is that the accused can be released on their personal recognizance during the pretrial phase. Typically, the judge will set pretrial conditions of release only where it is the interest of securing the defendant’s appearance in court, protect the community from violent crime, and prevent any obstruction of justice. These conditions do not violate the Fourth Amendment so long as they are legitimately related to the objectives of securing a defendant’s presence and public safety. In Washington, criminal Rule 3.2 and Criminal Rule for Courts of Limited Jurisdiction 3.2 govern pretrial release conditions.

The challenge we see in Kitsap County is that the defendant who was never able to post the bail that was automatically set at arrest by a bail schedule (i.e. $5000 for a DUI), has frequently served the jail time required for the crime charged. This means, they can just plead guilty, be released, and deal with the resulting fines, fees, and any administrative consequences or punishments. Unfortunately, that plea of guilty may have been a mistake considering the State’s evidence or because, without a negotiated plea by an experienced defense attorney, the conviction will cause significant collateral damage for the defendant—such as immigration consequences, job loss, loss of housing, discharge from the military, or even loss of federal student loans.

Is a “bail schedule” allowed under the law?

Yes. So far, there are many counties and municipalities using “schedules” that essentially list a crime and set a standard bail amount without any independent review of whether the accused is likely to appear for court or is a risk to the community. At the first appearance or arraignment, the defendant will be permitted to argue that bail is unnecessary to secure his presence to the next hearing. This is acceptable if the judge does an independent assessment of the defendant’s unique circumstances when reviewing the interests of 1) securing the defendant’s appearance at the next hearing or trial, and 2) public safety. Unfortunately, there are some situations where the predetermined bail schedule is de facto part of the conditions of pretrial release. Under the law, this is not allowed. Furthermore, practically speaking, when a bail schedule is set unreasonably high for a misdemeanor defendant who is poor, there is almost no chance that he will be able to bail out before the initial hearing to consult with an attorney, gather evidence, or provide information from witnesses.

How Does Kitsap Measure Up? 

Despite having no criminal history, no failure to appear for court dates, or risk to the community, it is very likely that a person arrested in Kitsap County for DUI will have bail set at a minimum of $5,000. If you were arrested Friday night and don’t have the money for bail, you will sit in jail until Monday’s Arraignment calendar. Unless you have criminal history or there are unusual facts, it is highly possible that you’ve served all of the jail time required for your alleged crime. As noted above, this creates big incentive for poor people to simply plead guilty so they can get out of jail. Knowing that bail, in some amount, will remain as a pretrial release condition, a poor defendant often finds pleading guilty and going home more favorable than sitting in jail for weeks or months until the trial date. The person has a conviction now, but they also have their freedom. It’s a tough predicament.

While it is true that this can happen in other counties, some of the largest in Washington have already made great reform and no longer use bail schedules. King County, Spokane County, and Yakima County have made great strides at reform, which has saved taxpayers a significant amount of money in pretrial incarceration costs. These counties use evidence-based assessment protocols on an individual basis to determine whether a person is a flight risk (i.e. won’t show up for court) and/or is a risk to the community. According to Pretrial Justice Institute, only 3.4 percent of citizens in Washington live in a county using a validated pretrial assessment, giving our state a C overall on the report card (factors such as pretrial detention rate, elimination of money bail, as well as other measurements are considered in grade report).

We are hopeful that Kitsap County will eventually move in the direction of reform. For now, we are unaware of any changes to the current system but, with larger counties already making changes and seeing the benefit of securing presence in the courtroom, safety in the community, and significant savings to taxpayers, it is possible Kitsap County could be next.

Variations In Surrounding Municipalities 

Why the difference in setting bail for nearby cities? Well, as the saying goes, follow the money. Local municipalities must pay a fee to the county jail when a police officer from Poulsbo or Bremerton book a suspect into the jail. Think of it as a hotel charge. The law enforcement officer is taking care of business in the city limits but using the “hotel” belonging to the county. This fee comes out of the city’s overall budget. Therefore, the “culture” understood by law enforcement is to use the city budget for post-conviction incarceration rather than pretrial holding of a suspect. This is the reason many people in Poulsbo will be “cited” and released. Basically, they are given a summons to appear in court on a set date. For those facing a Poulsbo criminal charge, this will generally be the next available Wednesday. There are exceptions to this booking/bail “culture” for people who have a history of failing to appear for court, are a flight risk, or are a danger to the community, but those cases tend to be the exception. 

If you are arrested in Bremerton, you will fall somewhere in between the booking rate of the County and Poulsbo. The Bremerton Police will fairly regularly book a suspect into the jail with the “bail schedule” but not as frequently as occurs in surrounding Kitsap County.

Around The State

As noted above, larger counties around the state have moved away from having bail schedules. They are using evidence-based assessments to evaluate, on an individual basis, whether a person is a flight risk and/or a risk to the community. For example, Yakima County is using the PSA (Arnold Foundation Public Safety Assessment), Spokane County Superior Court is using SAFER (Spokane Assessment for Evaluation of Risk) and Whatcom and Thurston Counties are using ASRA (Adult Static Risk Assessment). Overall, only 10.3% of Washingtonians live where they would be covered by a pretrial risk assessment protocol. 

According to the Washington Pretrial Reform Task Force Report, more than half of inmates in Washington’s jails are full of people being held pretrial, meaning they have not been convicted of a crime. In King County, despite reform efforts, it is still over 70%. Clearly, this is a problem for those in the defense bar who feel this is a violation of rights but also for the cost to taxpayers. In almost all cases, the taxpayers are paying the "hotel bill" to hold all of these low risk inmates. The Task Force recommended all jurisdictions create a pretrial risk assessment tool. This means, “an actuarial tool that uses data to determine the likelihood that a defendant will fail to appear or commit a criminal offense while on pretrial release.” 

pdfTASK FORCE REPORT

Around The Country

Despite tremendous interest in bail reform, bail schedules have yet to be ruled unconstitutional. While the practical impact of their use often leads to violations of the Equal Protection Clause and Due Process violations, they are still in use in most states. Unfortunately, the Supreme Court has yet to rule on bail schedules.

One relevant federal rulings on this issue is O’Donnell v. Harris County, 892 F.3d 147 (5th Cir. 2018), in which the Fifth Circuit reviewed how predetermined bail amounts for arrestees were adhered to in nearly 90% of first appearance determinations regarding pretrial release conditions. The Court did a very exhaustive examination of how the bail schedule actually operated, where the policies and procedures created a disparate impact for indigent defendants and also lacked any meaningful alternative considerations. The ruling tightened the lower court’s ruling directing Harris County to make immediate changes to the bail system for misdemeanor arrestees but, in a nutshell, agreeing that the bail practices by Harris County were in violation of the Equal Protection Clause and violate Due Process. It’s a long read but quite informative. 

One interesting excerpt from the 193 page District Court’s ruling in O’Donnell, was the review of similar challenges in various states. These challenges have produced significant responses from a wide range of legal authorities in the form of amicus briefs, including the American Bar Association and the US Department of Justice. Below is a portion from O’Donnell, describing the ABA’s contribution to Walker v. City of Calhoun, a case arising in Georgia that was heard by the 11th Circuit.

“The American Bar Association’s amicus brief in Walker argued that “[m]onetary conditions of release should never be drawn from an inflexible schedule, should be imposed only after consideration of the defendant’s individual circumstances, and should never prevent the defendant’s release solely because the defendant is unable to pay.” Pls. Ex. 12(ff) at 12. The Third Edition of the ABA Standards for Criminal Justice, Pretrial Release (3d ed. 2007), recommend “procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond.” Standard 10-1.4(a). Jurisdictions should impose financial conditions only “when no other conditions will ensure appearance,” and financial conditions “should not be employed to respond to concerns for public safety.” Standard 10-1.(4c)–(d). The Standards also emphasize that “[t]he judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.” Standard 10-1.4(e).

The American Bar Association’s brief emphasizes that “[u]nwarranted pretrial detention infringes on defendants’ constitutional rights, ‘making it difficult for the defendant to consult with counsel, locate witnesses, and gather evidence’ and placing a particularly heavy burden on ‘poor defendants and on racial and cultural minorities.’” Pls. Ex. 12(ff) at 14 (quoting Standards at 32–33). The commentary to the Standards states that “[i]f the court finds that unsecured bond is not sufficient, it may require the defendant to post bail; however, the bail amount must be within the reach of the defendant and should not be at an amount greater than necessary to assure the defendant’s appearance in court.” Id. (quoting with emphasis Standards at 43–44). The brief concludes that detaining a defendant solely for failure to pay a secured financial condition of release is unwarranted and unconstitutional. Id.” 

pdfCato Institute’s summary of O’Donnell

pdfO’Donnell District Court ruling 

O’Donnell 5th Circuit Ruling 

pdfStandford Law Review—Punishing Poverty

 

Why unnecessary use of bail matters?

As the Pretrial Justice Institute and the Washington Pretrial Reform Task Force noted, there are disparities in legal outcomes for those unable to post a bond or bail. Individuals who were detained prior to trial were four times more likely to receive a sentence of imprisonment and three times more likely to be given a longer prison sentence. Lowencamp, C., VanNostrand, M., A.M. (November 2013) Investigating the Impact of Pretrial Detention on Sentencing Outcomes. Being poor is not a crime and, therefore, justice should not serve the poor any differently. The disparate outcomes are not acceptable in our justice system.

If you or a loved one has been arrested and need help finding a local bail bondsmen, give us a call so we can help.

We have always enjoyed providing legal services in Kitsap County because it offers such a diverse group of people and legal challenges. In such a small geographical area, we have city, county, and federal laws pertaining to crimes such DUI, marijuana possession, trespassing, theft as well as many other criminal charges.

We Help Our Military

With Bangor, Naval Base Kitsap, and the PSNS, we find ourselves also helping many military members. The penalties and consequences for a crime, such as DUI, can mean very different things to a person in the military. Often, security clearances are the most immediate impact for military service members but jail time and losing the ability to drive without an ignition interlock is also very challenging. Additionally, you might find yourself facing "extra" punishments from your Commanding Officer. The lawyers at Witt Law Group can help facilitate communication between you and your Command regarding the Kitsap County criminal charge so that you can manage the consequences and move forward with a plan for success.

We Are Kitsap County Lawyers

As a local law firm, we care deeply about those in our community and trying to minimize the devastating consequences of a criminal charge. It is important to be able to learn from mistakes and then move on to being a productive member of our community. If you are arrested and charged with a crime or receive a summons to appear for a crime, it is important to seek the counsel of a criminal defense attorney. Local is better. Experience matters. Don't delay and think your problems will fade.

We Can Help You

In Kitsap County, early intervention with a lawyer can make a meaningful difference in the outcome of your case. You have nothing to lose with a free consultation and we have offices in Bremerton, Gig Harbor, and Poulsbo. Let us know how we can help.

When you find yourself charged with a crime, it is normal to go through a state of shock. After all, if you’re like 90% of our clients, you’ve never been in trouble before. Nearly half of our criminal defense clients have never even had a speeding ticket. An arrest and possible jail time is an unthinkable situation for most people.

In response to this state of shock, we often hear about every wonderful thing our clients have done in their lives. They are not “criminals” and this can’t really be happening. This is a tough spot for defense attorneys. We see this phase so often that we want to blow right past it and move to important things—relevancy and admissibility. It can seem that we don’t care. We do! However, our job is to care by doing what is best for you. This means getting to the facts of the case, the elements of the crime, and what we will use to negotiate a resolution in your favor.

The Interview

When interviewing a client, defense attorney are concerned with two basic rules in criminal procedure: 1) is the information provided by my client actually relevant, and 2) if it is, will it be helpful with negotiating a pretrial resolution or, if the case goes to trail, will it be admissible in court. This means, when a DUI client tells us that the car isn’t registered to her, that is not relevant. Vehicle registration is not an element of the crime of DUI. And, if you tell us that you can’t go to jail because you are a single parent, that is not relevant to the elements of your crime. We are listening for things such as, “I was drugged and therefore I was involuntarily intoxicated” because voluntary intoxication is relevant to the elements of the charge of DUI.

To understand why we get so focused on relevancy and admissibility, you need to understand how crimes are charged and how a prosecutor’s office works. When you are arrested for a crime, the officer has some discretion whether to arrest you and what he will write as the crime you committed. He just needs to believe there is probable cause (a fairly low standard as compared to beyond a reasonable doubt in a criminal trial) to believe you committed that crime. When the prosecutor receives the police report and reviews it for probable cause, she can 1) agree with the officer and charge you with the same crime as listed, 2) find there was no probable cause and release you, 3) find additional crimes were committed and add to your charges, or 4) find the facts warrant a higher level of charging such as a felony level crime rather than a misdemeanor. This means the criminal charge is never really “set” until a prosecutor sees the reports. This also means your defense attorney never really knows how good or bad your case is until the reports are provided.

Are There Bad Facts?

When discovery is provided to us, we also look for other “bad facts” that might hinder the strength of your case. These are not necessarily facts that relate to relevancy and admissibility but have more to do with how you interacted with law enforcement. Most prosecutors have drawn a much tougher line when it comes to misconduct or foul language with law enforcement. If you were calling the officer a “pig” or said “my attorney will get me out of this,” the prosecutor will be less likely to see you as a person who is genuinely remorseful. So, while the defendant before you with an identical DUI scenario received a Pretrial Diversion Agreement, you might not be offered the same deal if you called the officer names during your arrest. If drugs or alcohol was involved in your arrest, you might not remember doing something so out of character. Unfortunately, law enforcement never forgets to write these facts down and they are serious factors for us as we determine how to negotiate a case.

When you meet with your attorney, please realize that information is being “processed” as you’re talking. If the initial meeting seems a bit like an interrogation, that is usually because we’re trying to find relevant facts to know before heading into your first appearance or arraignment. No defense attorney wants to be blind-sided. We also need to know if you have criminal history. Nothing looks worse to a prosecutor than a defense attorney who claims the client has no criminal history but is then surprised by the secret out of state DUI or theft charge. The defense attorney instantly loses all credibility (and negotiation strength) if inaccurate or false statements are made. Your attorney should know the good facts but it is absolutely critical that he know the bad facts, too!

Have Patience

As the case progresses, the reality of how a prosecutor’s office runs becomes even more important to understand. It is NOTHING like you see on television. There are hundreds of cases assigned to a prosecutor and she is juggling far more than a private defense attorney. In most counties, prosecutors are on triage mode. This means, if she doesn’t have your case set for trial next week, it is not relevant to her work load this week. Negotiations happen at the leisure of the prosecutors and they have very little time to talk, email, or negotiate. There will be some discussion with the prosecutor in court but, typically, that will be under 5 minutes due to dozens of other cases set for the same time. Most negotiation happens via email. Your attorney begins “the attack” against the elements of the crime and whether the prosecutor can convict you of the crime charged. The prosecutor might respond quickly or, if in trial or busy, respond a week later. This stage is all about relevancy and admissibility. Unfortunately for clients, this stage takes time.

When this phase becomes drawn out, clients often get quite frustrated. It seems unthinkable that you would have court on Wednesday but the prosecutor won’t respond to your defense attorney’s emails until Tuesday (or the morning of court on Wednesday). This is just the reality of criminal defense. It is stressful and there is nothing we can do about it. Whether you need to arrange child care, take time off of work, or handle a family emergency are all irrelevant to the prosecutor. They don’t care if you’re in limbo. They don’t care if you will lose your job or business. They don’t care if you’re a single parent. The response is the same—don’t get into trouble if you have that much riding on you. In the criminal justice system, the only facts the prosecutor wants to hear are those that are relevant to the crime charged. It is a rough reality that we try to prepare our clients to understand.

Seek Wisdom Over Wives' Tales

For this reason, if you have trouble managing the uncertainty and the stress of being in limbo, it is important to find a counselor or friend who can help you manage that anxiety. We suggest you don’t include people who focus too much on “this is an outrage” or “my friend blew a .18 and he never went to jail.” The advice from this type of friend tends to be counterproductive for your case. Rarely, does the friend understand admissibility of evidence and how that played into the outcome of another person’s case (i.e. perhaps their other friend was pulled over on a pretextual stop and evidence was excluded as a result of the motion). If a great resolution is reached for your case, the “outraged” friend can keep you from making a good decision moving forward. Let your friends help with stress but let your experienced criminal defense attorney (who has prosecuted and defended a 1000+ criminal charges) give you legal advice.

We understand that it feels unfair to be just a case number. We try to soften that reality the best we can. Everyone in our office knows that clients are stressed and facing life-changing consequences as a result of a criminal charge. We definitely get it! However, it is our job to provide the best defense for you and negotiate the best outcome for your future—which may not include sharing your personal story. In fact, most of the time, we don’t want to get to the “share your hardship” phase. If you’re sharing your story, it is probably because you’re in court for sentencing, which means you were convicted at trial. That is not the outcome we want for you.

This long and overwhelming process is handled better with a support system. As a result, we strongly encourage proactive self-care and looking for ways to manage stress. We understand that you are scared and want the prosecutor to hear about everything you stand to lose. After all, that is typically all our clients can think about. We simply can’t do that and the prosecutor won’t have it. Please understand that it has nothing to do with a lack of compassion. In truth, we do care and our passion is finding fair resolutions. Caring for our clients means we will always stay focused on what will actually help you. We are in your corner and we will use everything that is relevant and helpful for your defense.

When you come to our office, we will provide you with an intake form that we will use for contact information and other relevant data regarding your case. The following checklist should provide some guidance regarding information and documents that you might need to complete the intake form.

 

¤   Any correspondence (letters, emails, phone calls) from insurance adjusters. This includes correspondence from your insurance and from the at-fault party. 

¤   Your insurance documents, including the “declaration page” of your policy. 

¤   If you have more than one policy, please bring documents regarding all of the policies.

¤   Police report and/or any documents given to you by first responders. If you do not have a police report, we can collect this at a later time (assuming a report was filed).

¤   A list of all passengers in the vehicle and include contact information.

¤   A list of witnesses to the accident. Again, please provide any contact information you have for these individuals.

¤   Pictures of the damage to your vehicle.

¤   Pictures of the accident scene.

¤   Pictures of your injuries.

¤   If you were injured in a bicycle or pedestrian accident, please bring damaged equipment (helmet, bike, etc.) and damaged clothing.

¤   Any video, audio, or newspaper articles regarding the accident.

¤   Documents regarding all medical policies.

¤   A list of any treatment providers you have seen since the date of the accident. Please provide location or contact information.

¤   If you are missing work, please indicate whether your doctor has provided time loss statements.

¤  If any medical bills have been sent to collections, please bring any correspondence regarding those bills.