Displaying items by tag: DUI

We are trying to respond to our current clients but we know there is a lot of interest in how the recent Keller decision will impact DUI cases in Kitsap County.

While the decision impacts admissibility of breathalyzer evidence, that does not mean it will impact ALL cases. Prosecuting DUI cases in the State of Washington does not require a BAC result. In fact, many cases are prosecuted under the "affected by" prong.

If you have an attorney on your pending case, you should reach out to him or her regarding your specific case. If the Keller ruling will have any impact on your case, it will be a fact-specific analysis to determine whether the State has ONLY the BAC result as evidence of your DUI.

Do not take advice from non-lawyers or any lawyer who is not an experienced LOCAL criminal defense attorney. You can make a bad situation a lot worse if you make assumptions about the recent District Court ruling.

Appear for ALL court dates and do not assume your case is being "thrown out" or dismissed. Additionally, do not forget that you also have potential DOL issues that can suspend your license.

https://www.youtube.com/watch?v=K172VuhuUUU

https://www.youtube.com/watch?v=Fq86oC-45iY

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When confronted with the BAC (Blood Alcohol Content) test in Washington State, what should I do?

While this blog should not be construed as legal advice, we share this information after 20 years of experience in Kitsap County, Washington. Many people believe that refusing the BAC test makes a future DUI prosecution more difficult for the Prosecuting Attorney. The theory makes sense – if you take the BAC result out of the Prosecutor’s tool chest, it is more difficult to prove the case. Unfortunately, that theory does not match with legal reality in the State of Washington.

The State Can "Argue" The Refusal


When you “refuse” the breath test at the station, it is true that the State doesn’t have a result to show that an individual is over the per se limit. However, in exchange, the State now possesses something more powerful – the ability to argue the refusal.


The District Courts give the Prosecuting Attorneys wide latitude to paint the defendant who refused the breathalyzer as a menace to society. The menace to society / danger to the community label permeates through all levels of the DUI prosecution, not just before a jury at trial.


As early as a defendant’s first hearing, or “arraignment”, the State will undoubtedly mention the refusal when suggesting conditions of release to the judge. For example you will hear statements like “your Honor, as troubling as these facts are to begin with, this defendant also choose to refuse the breath test, preventing this Court from knowing how high the result was and how serious a threat this individual poses to the community.” Next, the Prosecutor will ask for an Ignition Interlock requirement due to the refusal.


The refusal is easy for the Prosecutor to prove. While the introduction of a BAC result into evidence is a precise process of many steps that must be followed in the correct order, the refusal is as easy as throwing paint at a wall. For defense counsel, it is nearly impossible to prevent the State from intruding / arguing the refusal evidence before a jury.

A Refusal Is A Sentencing Enhancement


When the Prosecuting Attorney alleges the “Refusal” on the Criminal Complaint, it is a sentencing enhancement. The sentencing enhancement increases the mandatory minimum jail time and mandatory minimum fines.

A Refusal Triggers More Severe Sanctions From The DOL


Lastly, the “refusal” triggers more severe action by the Washington State Department of Licensing. For a frame of reference, if an individual blows, the suspension is usually 90 days. Under the same set of facts, with a refusal, the suspension will be not less than one year.

People Have No Reason To Know The Negatives Of A Refusal

 

People aren’t educated as to the negative repercussions of the refusal. No one ever plans on being arrested for DUI, so why would you educate yourself for a scenario that you believe will never happen? To compound the issue, individuals from other states come with the belief that they need to refuse the breathalyzer because it is advantageous in their home state. Washington is an implied consent state and you will are assumed to consent to the blow if you drive on Washington roadways. If you don’t blow, you will certainly be punished more severely. If you have questions about this or any other Washington DUI related topic, please call or text our office. 

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When a DUI defense attorney looks over the facts of a case, what they are trying to do is figure out what evidence can be “suppressed,” or in other words, be declared inadmissible at a future trial. One of the most common pieces of evidence that a skilled attorney will attempt to suppress is the results from the BAC (Blood Alcohol Content) test. If the BAC result is suppressed, this removes the most significant piece of evidence from the State in a future DUI prosecution. Without the BAC test result, the State would have to prove that the defendant is “affected by” alcohol, and that is not always easy to do. So how do you suppress the BAC result?

Challenge the 15 Minute Observation Period

 

Under Washington’s Law governing breath tests, an officer must conduct a fifteen minute observation of a person arrested for DUI prior to the administration of the breath test. This requirement comes from RCW 46.61.506, Washington Administrative Code (or WAC) 448-16-040 and from the Washington State Patrol’s BAC DataMaster Operator’s Manual. Each of these authorities mandate an uninterrupted observation period of at least 15 minutes. If the observation period is interrupted, it must be restarted – including a new mouth check.
The observation period begins with the officer conducting a mouth check. This can either be a physical inspection, or the officer simply asking the subject if they have anything in their mouth. Once the mouth check is complete, the observation period has begun. The following is a statement that must be sworn to, every time an officer conducts a BAC test:

 

I observed the subject during the entire observation period and during that time they did not eat, drink, smoke, vomit, or place any foreign substance in their mouth.

 

This begs the question, what does “observe” mean? Many officers treat this requirement (that they are swearing to!) very lackadaisically. Most defense attorneys argue that any break in the observation period invalidates the period, and thus, invalidates the test result. For example, when the officer fills out forms, leaves the room for any reason, lets the subject go to the bathroom, or, the most egregious – drives with the detained subject in the back of the patrol car. Most defense attorneys have a very black and white definition of the meaning of "observe." The courts, not so much. 

“Observe” Doesn’t Necessarily Mean Visual Observation


In 2013, a Washington Appellate Court chipped away at the requirement for direct, 100% visual observation. The Court in State v. Mashek 177 Wn.App 749 ruled that the observation “need not be strictly visual but, rather, can be a combination of other senses….” The Court lowered the bar and said as long as there is “prima facie evidence” (evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved) that the person did not vomit, eat, drink, smoke, or have foreign substances in their mouth for 15 minutes before the test, then the test is valid. Basically the Court indicated that an officer can use a combination of any number of their senses to keep an individual under their observation. 

This Mashek Decision Is An Obstacle, But It Is Not Insurmountable


Even with the Court diluting the uninterrupted observation period rule, officers still FREQUETNLY violate the rule in an irreparable way. For example, they leave the BAC room for several minutes, or a second officer signs the form that didn’t observe the subject at all. And there is definitely not a clean observation of a defendant in the back of a patrol cruiser when the officer is driving. The ability to suppress the BAC result with this defense is slightly harder, but it certainly did not go away.

Contact A DUI Defense Attorney


The penalties for a DUI conviction are severe. If you are facing a DUI charge, give yourself the best chance at avoiding or mitigating the penalties of a DUI conviction. Contact the DUI defense attorneys at Witt Law Group right away!

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In the State of Washington, the DUI statute has multiple prongs and one of the prongs is “affected by”—meaning the cop decides if you’re affected by alcohol or drugs. You do not need to have a predetermined amount of alcohol in your blood such as .08 to be arrested and criminally charged. In fact, every month, we have cases charged in Kitsap District, Bremerton Municipal, Port Orchard Municipal, and Poulsbo Municipal courts that are below the .08 standard. 

There Is No Automatic Dismissal!

 

Do not plan to show up to court and anticipate your case is “getting thrown out” once you point out a blow below .08 during your arraignment. It will not happen. These cases make money for the county and cities. Additionally, if an officer wrote in your reports that you were “affected by” a substance, that is sufficient for a judge or prosecutor. Unless you have video that establishes that the officer is lying and proves you were driving perfectly, the judge is going to find probable cause and you will be arraigned. Additionally, there may be further restrictions on your driving due to this reason. 

Do Not Ignore Filing Your DOL Hearing Request!

 

Because people often get legal advice from friends who support non-legal theories for dismissal, the accused will, to their peril, wait to file the DOL hearing request. If summonsed, the defendant goes to court for arraignment well beyond the 7 day hearing limit and discovers they are facing a DUI criminal charge and now will have their license suspended regardless of whether they prevail on the criminal case. That is a bad situation to be in because, if you do not ignore the reality of low blow DUI arrests and had filed the DOL hearing request, your attorney could have successfully fought the DOL suspension due to a lack of jurisdiction on the low blow. In fact, most officers know they are not supposed to file the report with DOL on a DUI arrest below .08 but some officers still do it. Once that paperwork is filed, you must request the hearing if you want to avoid the suspension. 

Caution

 

This information is an over-simplified explanation of these challenges. Do not use this as legal advice. To know what your risks and challenges are with an arrest below .08, you need an experienced criminal defense attorney in your area. It will make all the difference in your result. Do not take advice from non-lawyers or lawyers who do not practice law in your area.

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In DUI cases, the Court will often impose an Ignition Interlock requirement as a pretrial condition of release. In some situations, the imposition of that condition is discretionary, in other situations, the imposition is mandatory. This page addresses the situations in which it is mandatory.  

Mandatory Requirement For Installation / Use Of An Ignition Interlock Device

 

If an individual has a prior DUI conviction from any state (assuming the laws are comparable), the Court must order that the defendant install an ignition interlock effectively immediately. So the only way to be truly prepared for your arraignment is to have read and reviewed this form in advance.  Be advised that the Court doesn't allow for a window to time to drive home. Effectively immediately is truly effectively immediately.  

Form - Declaration To Not Operate Any Motor Vehicle Without Ignition Interlock

 

If a person falls into this scenario (where the IID will be required at arraignment) it is our preference to go through this document prior to the arraignment. To access the document, please press CLICK HERE, immediately below. 

 

CLICK HERE

 

 If you have any questions about the form, please call our office at (360) 792-1000. 

 

 

 

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The "Statute of Limitations" is a safeguard that prevents the State or any prosecuting authority from charging a criminal case outside of a certain period of time. The Statute of Limitations precludes the State from bringing charges against an individual outside a time period that the legislature has deemed to be appropriate. 

Statute of Limitations in WA for a DUI is two years

 

RCW 9A.04.080 (1) Prosecutions for criminal offenses shall not be commenced after the periods prescribed in this section.

(j) No gross misdemeanor may be prosecuted more than two years after its commission. 

A DUI is a gross misdemeanor, therefore the Statute of Limitations is two years. The case can not be filed more than two years after it is alleged to have occurred. 

Can my DUI be dismissed if outside the Statute of Limitations?

 

Absolutely! We always check on the Statute of Limitations when we review a DUI case. This is especially important when a blood sample was taken and the Washington State Crime Lab is involved. We have seen the Lab take up to 14 months to return a result to the law enforcement agency. So many cases actually are charged right up to the Statute of limitations, and some over. If the case if charged beyond two years, case dismissed! 

If you have a statute of limitations question about a DUI, or any Washington criminal case, please give our office a call. We have have offices in Bremerton, Poulsbo and Gig Harbor for your convenience.

 

For More Information About DUI Statute Of Limitations, Watch Our Video Below  

 

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An arrest for a DUI and dealing with the criminal charge is daunting enough. If you are lucky enough to have been informed about the co-occurring civil proceeding, your already high stress level will go through the roof. When we inform people about the civil proceedings, on top of the criminal prosecution, their heads figuratively explode. Most ask:

If I’m already being prosecuted, and the result of the criminal case will dictate what happens to my driver’s license, why is DOL also going after my license?

That is a great question. It’s one of the only questions where we do not have a satisfactory answer. The best we can surmise is “if one level of governmental oversight is good, two must be better.” Obviously this is a tongue in cheek answer. That is because there truly is no good answer – Washington State just likes more government than less. A wise, now retired Kitsap County District Court Judge, when posed with difficult questions, used to opine “It is what it is.” That is the most accurate statement when trying to rationalize the necessity for DOL's involvement in DUI cases.

Understanding that the DOL’s case against a defendant occurs simultaneously with the government’s criminal prosecution, what can be done about it?


The Four Legal Issues At A DOL Hearing


The are four legal issues that a DOL Hearings Examiner will take into consideration at a DOL hearing. When we participate in a DOL Hearing on behalf of a client, we try to challenge at least one, if not all, of the issues.


1. Did the law enforcement officer have reasonable grounds to believe the petitioner had been driving or in physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs;


2. Was the petitioner lawfully placed under arrest;


3. Was the petitioner advised of the ICWs (Blood case: Whether the petitioner’s blood was lawfully drawn, i.e. pursuant to search warrant or consent);


4. Was the breath/blood testing valid according to the statute and protocols established by the state toxicologist and showed a result of alcohol concentration of .08 (.02 for minor) or more or .50 or more for THC concentration.

Alternatively - If the subject refused, was the refusal valid under the statute and case law?


How To Challenge The Four Legal Issues


Have competent counsel help you throughout this process. Many people have public defenders appointed on their cases. Understand that public defenders represent people in criminal matters, not civil matters. While the DOL hearing seems like a logical extension of the criminal case, it is not. It is civil in nature, so a public defender will not help you. 

Make sure to submit your request for the DOL hearing within 7 days from the date of arrest. If your license is from out of state, this request can not be done online, it must be made through the mail.

At the hearing, there are many considerations that your private attorney should address. Is the case at hand a refusal? Was there an accident? Were multiple people in the car? Did law enforcement see the driver behind the wheel? Should the defendant be available to testify? Is the BAC result admissible? Is the "chain of custody" good on a blood sample? This list could go on for pages and pages. Usually there is a valid challenge to at least one of the four issues if your attorney knows where to look. 

Witt Law Group is a DUI Defense and Personal Injury law firm based in Washington State. We have offices in Bremerton, Poulsbo and Gig Harbor for your convenience. If you have a questions about an upcoming DOL hearing, or your DUI case in general, give our office a call. 

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If you are seeking a drug and alcohol evaluation because your lawyer thinks it’s a good idea or you have been ordered to do one, it is important to know a few things.

 

#1

 

First, Prosecutors and Judges do not want you to “shop around” for a good evaluation. If you have been ordered to get one following a plea or a guilty verdict, you better choose wisely the first time. This means do your research with reviews and referrals. Your lawyer may have a strong opinion about where you go. 

 

Unfortunately, there is an inherent conflict at most of the chemical dependency treatment providers because they are both evaluators and treatment providers. By this, we mean that if you are found to have a “problem” with drugs or alcohol, the treatment that is suggested can be completed and is billed by the same company that does your evaluation. If you think that gives them a reason to find you have a drug or alcohol problem…well, it might. Evaluators should be professional and keep their financial incentives separate from their judgment but some locations have a reputation for doing the opposite. So do your homework in advance. If there are a lot of complaints about unfair or exaggerated evaluations, take that into consideration.

 

Additionally, if you haven’t been ordered to do an evaluation and are simply having one done in preparation for your case, you can choose to go to more than one location. However, when possible, simply choose the best place you can based on research and stick with the one evaluation. That evaluation should be sent to your lawyer ONLY.

 

#2

 

Second, you will be answering written questions and oral questions. Be prepared. Don’t show up uninterested or “bothered” by the evaluation. That is usually seen as lacking awareness of your problem. If you’ve been arrested for an alcohol-related offense, you, by definition, have a problem. The issue the evaluator is trying to resolve is to what extent you have a problem and whether you will continue to have that problem. If you don’t have a problem, participate fully so they can figure that out.

 

Furthermore, do not minimize things that should not be minimized. Even if your criminal charge is a one time occurrence, don’t minimize the fact that you got arrested, perhaps hurt someone or yourself, or could have endangered others. Basically, don’t try to “outsmart” the evaluator by choosing the “right” answer. There really are no perfect answers. The best thing you can do is be respectful, responsive, and take responsibility for your mistakes. Making a terrible mistake on one occasion does not mean that you need treatment. If you don’t know that you made a mistake, it might indicate that you do need treatment. So, don’t try to play games.

 

#3

 

Third, you will be taking a UA at some point during your evaluation. Do not show up with any substance, including alcohol, in your system! This would seem like a no brainer but it happens all the time. If you can’t show up sober to an evaluation, you have a problem. Similarly, do not try to “cheat” the UA. These are highly sensitive tests and it WILL pick your THC, alcohol, or any other substance. It will also pick up your diluted sample. So, drinking a gallon of water before your UA will only mean that your test is labeled deceptive and counted as a positive. Not a great way to start the evaluation process.

 

If you have questions about what to expect, where to go, or any other questions before your evaluation, contact your lawyer as soon as possible. If you think you will test positive for THC because you used two weeks ago, you might want to delay your evaluation. These are issues you can discuss with your criminal defense lawyer. For some folks, a positive THC test will not matter and for others it could make a big difference on the outcome of your case. Every case is unique and the outcomes vary wildly depending on every detail. Do not take legal advice from blogs or from friends. Get advice from a lawyer who can go over your particular facts and give experienced advice.

 

If you would like to know more about chemical dependency assessments, CLICK HERE.

 

If you haven’t hired a lawyer yet, Witt Law Group offers free consultations. If you have a criminal case in Kitsap or Pierce County, give our office a call. 360-792-1000. We answer evenings and weekends so don’t hesitate to get peace of mind.

 

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December 12, 2020

Can I Beat My DUI?

Often, law firm ads will give defendants an impression that “beating a DUI” is a likely outcome. While it would be impressive to think that hiring just the right lawyer will get your case dismissed, that is not how criminal defense works. If you fall for it, you may have been suckered out of a lot of money for a hollow promise or gimmicky ad.

 

Simply put, if you are seeing the “get your DUI dismissed 95% of the time” ads, there are not a few top lawyers who get all the dismissals and 99% who are just terrible at their job and can only plead you guilty. While there are certainly more experienced defense lawyers, the outcome of your DUI greatly depends on your lawyer’s strategy, experience, willingness to educate the client as well as the motivation of the client to take proactive measures. This is where the evaluation and other actions can work to your favor. CLICK HERE to learn more evaluations.

 

The truth is that fewer than 2% of DUIs go to trial and outright dismissals occur less frequently than that. So, you have a 98% chance of NOT “beating” the DUI. Every experienced and successful defense lawyer will certainly review discovery for legal challenges but, the truth is, law enforcement makes DUI arrests for a living and they’re pretty good at it.

 

So why would I hire a lawyer if I can’t get my DUI dismissed?

 

Your attorney at Witt Law Group will use his or her history as a former prosecutor and years of defense experience to find every legal challenges possible to try for that dismissal or to create a solid trial case. However, if that does not look promising, you will want a lawyer who knows the options and realties in the jurisdiction where you were arrested. In the case of a DUI, local is always better. If an out of town lawyer does not about the PDA options, do not expect the prosecutor to enlighten them. Our lawyers know the culture of Kitsap as well as the municipal courts of Poulsbo, Bremerton, Port Orchard, and Gig Harbor and the fact that we can get a resolution that works within your goals—even if it isn’t in the form of a straight dismissal.

 

For some clients, success can be getting a really tough DUI into some kind of pretrial diversion agreement. Another client might simply want to keep a security clearance and avoid jail time. Make sure you convey to your attorney what success means to you. Since you have about a 98% chance of NOT getting a dismissal or winning at trial, it is important to set your priorities with your attorney.

 

If you are unsure about your odds in your case, the only way to know what can happen is to talk with a local attorney where you were charged. A local experienced criminal defense attorney will know how the prosecutors in that area handle a DUI charge, a refusal, or a high blow. The details make a difference and so does the jurisdiction. If you were charged in Kitsap District, you can expect a very different outcome than if you were charged in Mason County. For further discussion of your Kitsap or Pierce County case, give our office a call for a free consultation. 360-792-1000.

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First, an evaluation is extremely helpful in DUI cases. Most private defense attorneys will want this done and completed early because it helps with negotiation. A skilled negotiator is equally, if not more, important as trial experience when it comes to DUI cases. Unfortunately, clients are frequently misinformed about negotiation vs. trial due to law firm advertisements.

 

We see the negative impact of gimmicky advertising all the time. Due to misinformation, we spend a great deal of time and significant effort educating new clients on the realities of a DUI charge in Washington. The problems can be even more significant when the client is from another state and is unaware of the unique rules in Washington—including the fact we are an implied consent state.

 

So What Does The Eval Do?

 

A drug and alcohol evaluation can be extremely helpful because it can be a tool that the prosecutor uses to make a favorable decision in your case. When your defense attorney can establish legal issues with your arrest and also establish that you are not a threat to the community, via no dependency issues, it improves your odds of a good outcome.

 

In a nutshell, a positive evaluation can help negotiations run much more smoothly. There are a lot more details to this process but, suffice it to say, taking the proactive step to get an evaluation before your first pretrial can make a significant difference in assisting your attorney get the end game you want. It might be a dismissal one year later, after avoiding any further criminal violations, or it might be some other agreement. Basically, if you get an evaluation at a location that will give you a fair shake, your evaluation can be a positive tool in your defense.

 

Where Do I Make The Appointment?

 

Always ask our attorneys where you should go for an evaluation. Not all evaluators are equally qualified, meet the court standards, and some have more history of financial incentive (assigning lots of treatment that their company gets paid to provide). There are many factors to consider before you pay for an evaluation.

 

For More Information About Evaluations, CLICK HERE

 

If you have any further questions about signing up for an evaluation or how it might help in your specific case, contact one of our lawyers. Every case is unique so do not take the above information as legal advice. Do not take your friend’s advice. Do not substitute general blog advice. Do not delay getting advice. Call early in your case and contact a trusted experienced criminal defense lawyer in the area where you were criminally charged.

 

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