Jennifer Witt

Jennifer Witt

More often than not, the first question asked by new personal injury clients is, “What is my case worth?” When the conversation turns to “I have a friend who was offered $100,000 for their whiplash case,” we know that it’s time to provide some education to our client. For many reasons, the vast majority of the public has no idea how personal injury cases are valued, negotiated and settled, which can be quite detrimental when a person is injured due to the negligence of another.

How Personal Injury Settlements Have Changed

 

Over the last two decades, the “game” has changed and the insurance companies are keeping record profits. They are using certain tools to increase the odds that the profits continue. It is important for an accident victim to understand how technology has changed the field in favor of the insurance companies.

What We Can Do About It

 

First, every injury matters. By that, we mean that a strain and a sprain are treated differently. A fracture versus a break are night and day. And, if you are in pain, but never do anything about it, you really don’t have a claim. As the saying goes, the devil is in the details.

Unfortunately, the details are literally wrapped up in computer claims processing software programs, which nearly 80% of insurance companies use to settle claims. While the majority use a program called Colossus, there are several other well known programs that are used to reduce “risk” by lowering payouts. The software programs value cases by looking at various rules or factors and assumes that the insurance adjuster is plugging in the proper diagnoses and factors properly. This is not always the case.

One of the biggest problems with the software valuation is that, for a fair offer, the doctor and lawyer must be aware of how the software works. For example, the ICD codes don’t translate directly to Colossus codes for the injury but they are relevant. If the physician or chiropractor leaves off an ICD code, it could make a significant difference in your offer. Additionally, when ICD-10 codes were adopted, suddenly there were many more codes to enter and, on occasion, a care provider will forget to include all relevant codes. Under ICD-9, one code might have been sufficient to indicate your neck injury, however, under ICD-10, there could be two or three codes that each need to be entered to indicate that there was strain and a sprain. Considering that all of the codes must be included to give a clear picture of the injury (your attorney cannot fill in the gaps), it is imperative that you are seeing a doctor or chiropractor who is fully documenting your injury.

Another big challenge for personal injury attorneys is that writing a demand occurs at the end of the case. Unfortunately, when a client has a physician who is less than enthusiastic about documenting car accident injuries, this will impact how thoroughly your lawyer can document your injuries in the Demand. For example, one of the biggest factors in valuing the case is the documentation of “duties under duress” by your physician and your lawyer. Duties under duress paint the picture for the insurance adjuster how your daily living or work duties were impacted as a result of the pain you experienced from the accident. The documentation or narrative by the doctor needs to include very detailed impact about the activity (work, household duties, domestic duties, etc), when the pain was experienced (lifting, bending, sitting, walking, etc), how much pain or anxiety was experienced, whether there was restricted movement, and that the patient was required to do this activity while in pain. When reviewing the valuation for pain and suffering, pain is not assumed, it is documented.

In addition to documenting “duties under duress,” the physician must be clear as to the duration of treatment, the type of treatment modalities that were used, any complications experienced, prognosis for each injury with great specificity, permanent impairment under the AMA guidelines, as well as any known loss of enjoyment of life that you have discussed (experiencing depression because you are isolated or in pain and cannot interact with family or friends). If a care provider fails to document with specificity, the most well written Demand won’t help you. However, it is also equally important that, where proper documentation has been provided by a doctor, the attorney must clearly include all of those details to increase the odds that the adjuster will input it into the software. Adjusters do have some discretion in how or whether they will input certain facts so it is important to make the injuries and resulting consequences very clear in the Demand to increase your odds of a fair valuation of your case.

Finally, the “weight” of the factors has a tremendous impact on how the software values your injuries. For example, “initial treatment” (ER visits) are weighted more heavily by most software programs than subsequent treatment. This means that, where an ER report is minimal or fails to provide a thorough diagnosis (all proper codes for a loss of consciousness, for example), that will hurt your case. Lately, we’ve noticed a significant difference in ER reports from Harrison Hospital as compared to the very detailed narrative and thorough diagnoses section from St. Anthony’s. If you feel your ER visit was rushed or less than thorough, follow up care is critical. Additionally, if the initial treatment provider suggested you follow up, seek subsequent treatment, or do some type of home care (bed rest or home exercises), make sure that is documented in your chart and that you follow that suggestion. Subsequent care is “weighted” by who suggested the care (primary care doctors are weighted differently than specialists) and whether the suggested care was warranted based on initial care treatment. While there are many other factors that are considered by the software, this is a nuts and bolts overview of the importance of seeking care, documenting care, and following up with necessary subsequent care.

Set Realistic Expectations

 

Remember that while your case might be worth $50,000, if the software says it’s worth $10,000, the adjuster will be quite inflexible during negotiation. It benefits everyone to start with negotiations in a realistic range of value. Often, the adjuster cannot move beyond certain limits once the software has indicated the “appropriate range” for your type of injury. Without other supporting factors to input, the case will not settle outside of the generated range. In some cases, it makes sense to file a lawsuit to move past the designated range but, for a poorly documented injury, this may not provide a better outcome. When doctors or experts are needed for trial, the costs are significant and those will come out of your award—assuming you prevail. Jurors are biased against soft-tissue victims and insurance companies know they have odds in their favor. Often, where the insurance company’s risk is low (not a high value case), the insurance company wants to take the case to trial. In some cases, a lower than fair value settlement offer for your accident is a safer bet than no award at all.

Get Educated

 

The best thing an accident victim can do is to be educated about the process and make sure their your treatment team understands their significance in making sure you are compensated adequately for your injuries. It really is a team effort and the best team makes the difference in a winning case

 

In the world of personal injury, soft tissue cases are among the most challenging for an attorney. The challenge comes in the form of managing client expectations with insurance realities.

 

Every human being feels pain differently and for different lengths of time. If you’re a competitive athlete and are rear-ended, it is unlikely you’ll treat for more than two months. If you have a desk job and haven’t been to the gym in 10 years, the car accident might impact your life for 12 months. Unfortunately, for the desk job person, the insurance companies don’t really think it should take you 12 months to get better.

 

A soft tissue injury case has a range and, if you aren’t in that range, you may end up treating too long and owing more money in medical bills than you are offered for a settlement. This is the worst outcome for any personal injury attorney. We can’t tell you to stop treating and yet your treatment is going to create a financial burden for you.

 

A similar detrimental situation can happen when a client believes that more treatment equals a higher settlement. This is an unfortunate myth. Legitimate testing, such as a CT scan or X-rays, are relevant in valuing a case. Additionally, if you’ve experienced a concussion, this can change the value of a case. However, just treating for months and months with chiropractic or massage has the tendency to make your case look less legitimate. The insurance companies know this and they also know how juries look at soft tissue cases. Unfortunately, most jurors see soft tissue victims as trying to get “free money” and not really as a victim. It’s a hurdle right out of the gate in trial—and insurance defense attorneys often exploit this bias. For this reason, experienced attorneys work very hard to negotiate a settlement to avoid trial.

 

In 2008, a well-regarded article in the Journal of Empirical Legal Studies reviewed 9000 settlements over 41 years and found that, 61% percent of the time, the plaintiffs who went to trial obtained an award that was the same or worse than the pretrial settlement. Considering the incredible expense of trial and experts, even those who obtained the same award as the earlier settlement offer, really ended up in a very bad position.

 

Sometimes, trial is unavoidable for resolution of a case. However, it’s very important that those plaintiffs who are suffering only soft tissue injuries realize that they are going to face an uphill battle when it comes to fighting insurance companies. Regardless of how your injuries impacted your life, generally speaking, your maximum settlement has already been set by the insurance companies. In very conservative areas, that might mean 1.5 times your medical bills. In more liberal areas, that might mean closer to 2.5 times your medical bills. Keep in mind, this is very general information and assuming your medical bills are necessary and reasonable. A $10,000 massage bill is probably not going to be considered reasonable.

 

Nothing in this article is intended to be legal advice. However, consider the above information as you prepare questions for your attorney. Are your expectations realistic for your injuries and your geographical location? Is there a point where you would prefer to stop treating and walk away with more money for your inconvenience rather than have more massage visits? It’s all a factor in making a client feel like they were represented according to their best interest. Not everyone’s interests are the same.

 

At Witt Law Group, we are available 24/7 to hear your particular interests. If you want to discuss your personal injury case, we are here for you.

The issue of bail is always challenging. First, it can be expensive. Second, if you want your loved one to “learn a lesson,” is it best to leave her in jail? Finally, will the Court consider the person less “upstanding” at the Arraignment if he or she was unable to bail out?

 

All of those considerations are relevant. However, for a defense attorney, the biggest consideration (often overlooked) is how remaining in custody will ultimately impact the final resolution of the case. When a defendant is held in custody, it often results in many unintended negative consequences. Here are some factors to consider if you’re struggling with the notion of posting bail:

1.  If Incustody, The State Has All The Power

When a person sits in-custody, the State Attorney has all the power. If a person was arrested on a Friday and sits in-custody all weekend, by Monday’s Arraignment, they have most likely served their sentence. The person is faced with the option to plead guilty and get out of jail or, continue the case, and potentially remain in custody. Basically, if a person is in custody but can be immediately set free by pleading to the charge, the State can leverage them into pleading guilty. 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 to get out of jail quickly and hide the matter from their parents.

 2. If Incustody, Your Representation Is A Gamble 

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 too busy to be much help. Either way, the in-custody defendant does not get to choose who represents them at Arraignment.

 3. Deals / Plea Negotiations Do Not Flow As Easily To The Incustody Defendant

Deals that are often available to out-of-custody defendants are not typically presented to those who are in-custody. This is due, in part, to the fact that 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 statistics are critical. The more guilty pleas, the better the statistics for the office. Clearly, it is easier to improve those stats by forcing pleas out of in-custody defendants.

Don't Be A Stastic!

Don’t let a friend or loved one be a statistic for the State. From our perspective, there is a big disadvantage to defense if a person is held in-custody. While it may not “teach him a lesson” to bail your loved one out right away, being out of jail will help immensely in the defense of the case. Criminal cases always carry some “lessons” and there is no need to add the punishment of remaining in-custody. If you help your friend or family member with bail, it allows us to get the client moving on “tasks” they can do ahead of court dates. We can present a better case to the Prosecutor and a better client to the Court by being proactive. Ultimately, the goal is to learn from being criminal charged but also to move forward in a positive way with life. Think long term and not on the short term lesson.

 

If you would like to ask an attorney further questions about how remaining in custody could impact your specific case, give our office a call.  Witt Law Group is a criminal defense / DUI Defense law firm with offices Gig Harbor and Bremerton Washington. 

One of the hardest parts of being arrested for a DUI is the challenge of having an ignition interlock device (IID) required for driving. If you’re a parent, there is the embarrassment of explaining that you really don’t want to carpool anymore (i.e. you don’t really want to blow going down the road with the neighbor’s kids in the car). Perhaps you drive a company car and have to explain to your boss that you’re going to need to install the IID in the company’s vehicle. Some may not let you do it and you will be required to put miles on your personal vehicle. But, in addition to the incredible inconvenience, there is a sizable financial commitment that is required. There is an expense associated with installing it in your car as well as a maintenance expense. For the above reasons, the notion of installing an ignition interlock device is very stressful for most clients.

 

Unfortunately, for most persons arrested for DUI, it is highly likely that the ignition interlock will be required. It can be required as a condition of release set by the Court (your blow was really high so the judge adds it to your conditions of release), as part of your sentence after being convicted, as part of your alternative resolution (a contract you enter into with the State), and as part of the Department of Licensing (DOL) administrative suspension. The DOL can suspend you because you did not request your hearing, you requested your hearing and lost, or you refused to blow into the breathalyzer at the time of arrest. There are a few scenarios where the requirement for an IID may not be the case.

 

Hypothetical #1

You were arrested for a DUI below the .08 standard. You might think you can’t be prosecuted for the DUI but you’d be wrong. The DUI statute allows the prosecutor to prosecute under the “effected by” prong of the statute. We used to see quite a few low blow DUI arrests in Bremerton but it can happen anywhere—it’s up to the Prosecutor in the area. However, the good news is that the Department of Licensing does not have jurisdiction over these cases. Their jurisdiction pertains to arrests made where the breathalyzer result is .08 or above. Therefore, in this low blow scenario, you could enter into some agreement with the Prosecutor to avoid a conviction on your record or you could go to trial and be found not guilty on the criminal charge and, in both cases, there would be no IID requirement.

 

Hypothetical #2

If you request your DOL hearing and win, there will be no administrative suspension that would trigger the IID requirement. Then, let’s suppose your defense attorney is able to get you an alternative resolution. These are called different things in different counties but some of the common names are pretrial diversion agreement (PDA), continuance without findings, or a stipulated order of continuance. These resolutions allow for your defense attorney to argue that you don’t need an IID as part of the conditions of your contract with the state. If successful, you will have no administrative or criminal IID requirement.

 

Hypothetical #3

As a small variation on hypothetical #2, let’s assume you won your DOL hearing but you had a high blow so you end up with an IID as part of your initial conditions of release. Since conditions of release are conditions set by the judge to secure that you will reappear for court and not be a danger to the community, they are not necessarily part of your final resolution. For example, at the time of your arraignment (your first appearance), you are given the IID requirement because you blew a .15, but months later, you enter into a PDA for 3 years (meet certain conditions in the contract—i.e. don’t get arrested again, comply with treatment suggestions, pay fines, etc.) and the Prosecutor can choose to remove the IID requirement as part of the PDA. So, you could start the case with an IID in your car but, several months later, you might be allowed to remove it.

 

This topic can be quite confusing and certainly not intended to be legal advice. As you can imagine, there are so many variations in DUI arrests that, if you want to know the likelihood you are going to be suspended and required to install an IID, you need to talk with an experienced criminal defense lawyer about the specific facts surrounding your arrest. There are other scenarios where an IID might not be required but it is very fact specific. If you have questions about your DUI, please give our office a call for a free consultation.  Witt Law Group is a DUI / DWI defense law firm with offices in Bremerton and Gig Harbor Washington. 

If you are arrested for a DUI in the State of Washington, you will likely find yourself seeking a DUI drug and alcohol assessment. Some people wait until they are convicted of DUI and ordered to get this assessment. However, those represented by private counsel will seek the evaluation in advance to have better negotiating tools.

The assessment is used to determine whether you have a problem with drugs and alcohol and whether that problem contributed to criminal behavior. The report from your assessment will indicate whether there is no substance abuse concern or if treatment is suggested. If treatment is warranted, there will be an indication as to the length and whether inpatient or outpatient is advised.

What you will need:

To comply with the rules in Washington, the report must be from a state certified agency and the person conducting your assessment must indicate that he or she has reviewed the following documents:

1) Your driving abstract

2) Your criminal history

3) The police narrative/report regarding your recent arrest (including the result of your breathalyzer or blood draw from your arrest (if a blood draw, that won’t be immediately available))

4) Your criminal complaint

Give your attorney enough notice to collect the items

These documents are likely already in your attorney’s file. However, occasionally, discovery from the Prosecutor can take awhile. If you set your assessment appointment and the counselor does not have these documents, most facilities will not conduct the assessment. For this reason, always give your attorney (or staff), at least 5 business days notice of your assessment date. This should give sufficient time to fax documents to the proper location and to notify you if certain documents are not available.

Depending on where you are in the criminal justice process, you may not want to share the results of your assessment with anyone except your attorney. Occasionally, an assessment counselor will suggest treatment that seems extreme for your alcohol use. In those situations, many of our clients will choose to pay for a second assessment to see if similar advice is on the second report. This allows the client to decide which report to submit to the court. Keep this in mind when you go for your assessment and you are asked who should receive a copy of the report. We ask that our clients choose only their attorney at Witt Law Group.

Assessments for minors:

Finally, be aware that many agencies will not do assessments for minors. When making the appointment, be sure to notify them if you are under 18 years old. Additionally, if you are using insurance to pay for the assessment, make sure the agency you are using will accept insurance—and yours specifically. Most people pay for the assessment out of pocket so it is quite possible that you may arrive to find that the agency doesn’t accept insurance.

If you have questions about where to go for your assessment or what to expect, you can contact your attorney. Remember, it is normal that you’ll feel anxious or irritated that you need to do this. Essentially, someone is trying to decide if you abuse substances. If you feel that you don’t have a problem, just the notion of someone asking can put you on the defense. Try to be open to the process and realize that it has to be done. Try to relax and never drink or use any drugs before your appointment. There will be a urinalysis (UA) screening on the day of your assessment and it will establish that you were not sober for your appointment—not a good sign. Additionally, the UA is very sensitive and can pick up whether you are trying to “fool” the test (drinking a ton of water or using substances to mask drugs) and, again, this does not make you look good. Put your best foot forward so you can put this portion of the process behind you.

Occasionally, we get calls from parents of potential clients asking about how to deal with their “kids” (often adult children) when it comes to a criminal issue that their child is facing. Specifically, if their child was arrested for DUI, should they leave the child in jail to “teach them a lesson” rather than bail them out?

 

Our position on this question comes from two concerns. First, from our perspective, there is no longer community policing and that greatly impacts the number of stops that have become “criminal” and lead to someone being arrested (in particular, marijuana-DUI arrests where the individual was not impaired). Cops no longer get cats out of trees. They don’t drive you home when it looks like you’re getting heated at the bar. They don’t settle disputes between neighbors. And, most importantly, the police don’t show up to family disputes and “cool things down” for you. When law enforcement shows up, someone is going to be arrested. In fact, in domestic situations, someone has to be arrested. Yet, not everyone who is arrested should have been and they certainly don’t need to be sitting in jail. Second, it is rarely advantageous to the client to remain in jail in terms of legal justice. Justice should be handled fairly and equitably but, in our opinion, justice is different for those who are able to bail out of jail.

 

While we can’t tell you how to parent, it is important to understand there are consequences that follow from remaining in jail and some of those consequences significantly impact how an attorney can resolve the case. For example:

 

1) It is very tempting to plea to a crime that you could beat because you are offered “credit for time served” (you get out of jail as soon as you plead guilty).

 

2) The prosecution has the upper hand when you’re in jail. They are rougher in plea negotiations (knowing you’ll just want out). The defendant pleas to a higher charge with “credit for time served” or very little extra time so the Prosecutor can keep their conviction stats up.

 

3) When you’re in jail, anxiety is higher and the urge to get out causes people to make quick decisions that aren’t in their best interest. For example, the client doesn’t want to wait in jail while they find out if they qualify for alternative sentencing programs like veterans court or behavioral health court.

 

4) When you are in jail, it is much more likely you’ll miss important deadlines such as sending in your DOL hearing request to challenge a suspension. If you were given a traffic citation at the same time as your arrest, you may miss the 15 day window to contest that ticket. Additionally, you’re racking up very large fees while your car is in impound.

 

5) Perhaps most importantly, it is harder to communicate with a client in jail. It makes it harder to form a defense and to analyze alternative sentencing options. This is inherently unfair to poor people who do not have the financial means to bail out.

 

Finally, we consider long term consequences for all of our clients. How will a conviction or plea impact your career goals or financial concerns for your family? These are not concerns for the State. In fact, the role of law enforcement has changed dramatically over the last 20+ years. They are understaffed, overstressed, risks are higher, and arrests are more likely. In fact, one in four Americans has an arrest record. While both violent crime and property crime has dropped significantly over the last quarter century, there are spikes in certain arrests. For example, just between 1990 and 2010, there was an 80% increase in drug possession and use arrests. The entire methodology and motivation for policing a community has changed and, in our opinion, too many people are arrested for “crimes” that could have been resolved another way. While we can’t remove an arrest from your record, when possible, we want our clients to grow from the experience but not face lifelong obstacles because they had an encounter with law enforcement.

 

*See below for some interesting facts from the Brennan Center For Justice.

 

So. to answer the question about “lessons,” you need to ask what is most important to you in the moment—an immediate lesson or a very long term consequence. In DUI situations, law enforcement and the prosecutor don’t care that you’re trying to “do the right thing” by teaching a lesson. They have a job to convict and they do that job very well.

 

If you would like your child to be convicted of a DUI and have the insurance expenses, license suspension, employment consequences, ignition interlock requirements, and jail time, then you should let the State have the upper hand by leaving your child in jail. Statistically, this will increase their odds of a conviction or pleaing to a charge so they can get out of jail. If you’d rather allow an experienced defense attorney to guide your child through the maze of criminal defense with an eye toward the future with employment consequences in mind, you might consider talking with your child about your concerns within the privacy of your home and leaving legal lessons to the attorney and court. 

 

* The Numbers in Perspective:

America now houses roughly the same number people with criminal records as it does four-year college graduates.

Nearly half of black males and almost 40 percent of white males are arrested by the age 23.

If all arrested Americans were a nation, they would be the world’s 18th largest. Larger than Canada. Larger than France. More than three times the size of Australia.

The number of Americans with criminal records today is larger than the entire U.S. population in 1900.

Holding hands, Americans with arrest records could circle the earth three times

November 03, 2018

Infraction Protocol

Protocol once you hire Witt Law Group for your traffic infraction:

1) You will provide information regarding the date of infraction, your date of birth and full name, whether you have a CDL, the location of where you were cited, and the ticket number (if you know it) to the attorney or staff at Witt Law Group.

2) Our office will file a Notice of Appearance with the relevant court and prosecutor in the county or city where the infraction was alleged to have been committed. This tells the court and prosecutor that you are being represented by an attorney and all correspondence and discovery should be mailed to our office.

3) A court date is set for us to challenge the ticket. The hearing date is typically set 45 days or more from the date of the infraction. Your attorney can move that date when needed. If you receive a Summons from the court regarding your court date, you do not need to appear unless your attorney tells you to do so. If you have a question about this, call our office.

4) Wait to hear from your attorney. Make sure the office has your current phone number!
While waiting a month or two can be hard for some people, there really is nothing happening until the week before your hearing. Discussions between your attorney and the prosecutor will only happen the week before your hearing (and, in certain courts, the day of your hearing) because the prosecutor is too busy. They have a stack of hundreds of infractions and, rarely, will a prosecutor have the time to pull your case out of the pile before it’s on the front burner. So, sit tight and know that your attorney will call you the week before court as soon as he or she gets word of an agreement to dismiss or another offer for you. Again, make sure we have your current contact information.

5) When your attorney calls, you will be asked whether you want to contest your ticket (assuming the prosecutor hasn’t already agreed to dismiss it). Most of the time, this can happen without you going to court. Sometimes, your presence may be needed. There may also be another offer from the prosecutor in which you pay a fine but the infraction is reduced to a nonmoving violation that is not reported to the Department of Licensing (so your insurance rates won’t go up). Your attorney must get your approval to determine which route you want the case to go.

6) On the day of your hearing, the attorney will act on your behalf and follow the plan that you discussed over the phone. Occasionally, if something has changed (perhaps you have more history than you initially let your attorney know about), the hearing date can be moved to a later time. This gives your attorney time to speak with you about new discovery or review new offers from the prosecutor. The normal protocol is to resolve the case on the initial date set for the hearing and we try to avoid re-setting the hearing. If we were unable to reach you during the week prior to the hearing, we will have to move the court date.

7) Within a few days of the hearing, you will hear from our office. The results of your representation will be conveyed to you and what, if anything, you need to do for follow up. If you need to send a check for a fine, you will be instructed on how to do that and where the check should be mailed. Since we handle a high volume of infractions, it is normal to hear from us within a week of your hearing. However, if you are eager to know the results on the day of the infraction hearing, please let our staff know that you’d like a call that evening. We will do our best to accommodate.

Where To Turn If You’re Trying to Have Your Legal Financial Obligations Reduced or Forgiven

The Change Comes From A House Bill And Court Decisions

In June of 2018, House Bill 1783 went into effect and changed numerous Washington statutes to conform with the Blazina decision, which requires the sentencing Judge to make an “individualized inquiry” into the defendant’s ability to pay before imposing Legal Financial Obligations (LFOs). In September, the Washington Supreme Court revisited this issue in Ramirez, where it determined the trial court failed to make an adequate inquiry and to consider the other “important factors” from Blazina, including financial circumstances, employment history, income, assets, living expenses, and other debts. However, re-sentencing was not ordered by the Court because it determined,

“While this Blazina error would normally entitle Ramirez to a resentencing hearing on a his ability to pay discretionary LFOs, such a limited resentencing is unnecessary in this case. Engrossed Second Substitute House Bill 1783, 65th Leg., Reg. Tess. (Wash. 2018) House Bill 1783, which amended two statutes at issue and now prohibits the imposition of certain LFOs on indigent defendants, applies prospectively to Ramirez’s case on appeal.” (emphasis added)

What Does All This Really Mean?

The nitty gritty of this means that defendants who have a Judgment and Sentence (not those who entered into a contract with the State like a Pretrial Diversion Agreement, or “PDA” ) that includes LFOs, it is possible to have those obligations reviewed based on your financial situation. The Judge who assigned the LFOs must have complied with the Blazina and the Ramirez decision but, even if they did, you might still be eligible under the law to have those LFOs reduced based on changes in your current financial circumstances.

Steps To Take

If you would like to seek a review, the Northwest Justice Project put together directions on How To Ask A Washington Court To Reduce Or Forgive Your Legal Financial Obligations. To learn more, review the following list:

1) Go to www.washingtonlawhelp.org
2) Go to the blue tab, Get Legal Info
3) Scroll to Crime, Traffic, ID
4) Click on Legal Financial Obligations (LFO)
5) There are 4 articles under Know Your Rights. Click on How to Ask a Washington Court to Reduce or Forgive Your Legal Financial Obligations
6) Go through Contents links and fill out forms

* Pay attention to whether you meet the requirements that permit you to ask for forgiveness or a reduction in your LFOs.

The information in the Contents link will show you how to get Criminal History Reports, LFO Accounting Summaries, schedule hearings, as well as directions on how to fill out forms. This is a rather detailed and potentially lengthy process. It is important that you do not skip any of the steps. You may be eligible to get help in the process from the local Northwest Justice Project office.

How To Handle This At Your Local Court

On a local level, we have spoken with the Court Clerks for both Kitsap County District and Kitsap County Superior Court.

Regarding District Court, the Clerks will provide you with a Motion titled “I Can’t Afford To Pay Motion And Declaration.” It is relatively short and it takes no special expertise to fill it out. Once you turn that Motion in, the clerks will schedule you for the next Monday at 1:30 to have your situation heard before a District Court Judge. On top of reducing or eliminating your fines, the Judge can also order the “FTA” removed, which is what prevents many people from obtaining a driver’s license. Lastly, they will not pull fines from collections for you, but they WILL order the collections company to remove all the interest that has accrued over the months or years since your sentence.  The Courts will NOT reduce fines on infractions.

Regarding Superior Court, the Clerks will require you to speak with a “Finance Clerk” that will assist you with your request. They will inform you exactly what amount of your fines and costs are eligible to be reduced. Once you have that number from the Finance Clerk, they will provide you with a “Note For Hearing” and a “Motion For Order Waiving Or Reducing Interest On LFO’s”. Once that is completed and filed, you will be scheduled to appear on the next Friday at 11:00 in Superior Court. They Judge will review your Motion and hear from you – and most likely reduce your fines and interest.

If you aren’t certain whether your fines or financial obligations fall under LFOs, you can check out our pervious blog post that goes into greater detail.

While this is not intended to be legal advice, we hope this information helps you find the legal resources you need to move forward. Our goal is to help those who are indigent and stuck in this process to seek a way out from overwhelming financial obligations.

October 09, 2018

To Blow Or Not To Blow?

People frequently call us during a DUI arrest to ask whether or not they should blow at the station. (This “blow” refers to the admissible breath test and not the portable breath test along the roadside.) More often than not, people tell us that their plan is to refuse to blow and they want us to give them confirmation that this is a good idea. Often, they are quite surprised when we provide them with numerous reasons why they SHOULD take the breath test.

Sanctions are more severe if you refuse

First, Washington is an “Implied Consent” state, meaning any person who operates a motor vehicle within this state is deemed to have given consent to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath. In other words, by driving on the roads in the State of Washington, you are essentially agreeing to take the test. Since there is an implied “agreement”, when you violate it (by not taking the test), you are also agreeing to predetermined sanctions by Washington’s Department of Licensing – specifically a lengthy license suspension. 

The refusal can be "argued" by the prosecutor at trial

Second, if you refuse the breathalyzer test, that refusal can be used against you at a criminal trial. This means the Prosecuting Attorney is allowed to “argue” the refusal to the jury when they are putting on their case in chief. The state has wide latitude in its presentation regarding your refusal. The Prosecutor can argue that “only the defendant knows how wildly intoxicated they were, and the refusal is just their way to hide that heinous fact from law enforcement or the Courts.” Additionally, this argument regarding your refusal can also be used at Arraignment. The Prosecutors can argue (and with fairly decent success) that a person who refused is a danger to the community and that individual needs an ignition interlock installed on his or her vehicle.

In a nutshell, we typically believe that it is better for a person who has been arrested on suspicion of DUI to blow into the breathalyzer machine at the station when requested. It is easier for a defense attorney to challenge the results of the blow than it is for us to challenge a refusal. These are just two of the main issues that arise in a refusal. If possible, reach out to a criminal defense attorney after you’ve been arrested but before the breath test at the station is administered. Each case is unique and the attorney will want to ask you questions as you are being processed.

If you have questions about your DUI case, give our Gig Harbor or Bremerton office a call. We take calls 24/7 and our consultations are free. Every stop is unique and it’s important to have an experienced criminal defense lawyer learn the details of your case before you make any big decisions.