Jennifer Witt

Jennifer Witt

Why did it take so long to charge me with Assault?

 

It is not unusual that we receive calls from clients who had an altercation months ago and are now receiving a summons. At the time of the incident, the client was under the impression that the issue was resolved and there would likely not be any criminal charges. They are often quite surprised to face criminal charges for an argument that occurred so long ago.

 

Unfortunately, assault charges can be tricky. Where the assault does not involve a domestic violence incident, there is no mandatory arrest requirement. Therefore, an officer can take statements and do a follow up investigation rather than immediately make a determination whether a crime has been committed. The investigation can take many months and the report is then forwarded to a prosecutor. It is also not uncommon for a detective’s report to sit “on hold” at the prosecutor’s office for many months before a criminal charging decision is made. Hence, we then see criminal charges filed based on a fight that occurred months or even a year earlier.

 

If I didn't get charged for 6 months, does that mean the Prosecutor has a weak case?

 

From the defense stand point, time does not often benefit the alleged perpetrator. The criminal charges are based on the officer’s report and the victim’s version of events—seemingly credible sources. If there were other witnesses who might refute the victim’s version of events, they are often no longer available or do not remember the incident clearly. However, that does not mean assault cases are easy for a prosecutor to prove. When it comes down to it, these cases are often “he said vs. he said” with no clear evidence. Basically, without an unbiased witness, the jury has to decide who is most credible.

 

If you are facing an assault charge, that reality might make you rather uncomfortable. Can you trust a jury to see the truth? For that reason, some people would rather find a resolution short of trial. In most circumstances, there are options for resolving an assault case without taking the risk at trial, which often means the prosecutor will add additional “hold back” charges and/or seek longer jail time. The route you should take greatly depends on the facts of your case. Those facts are primarily determined by the discovery your defense attorney receives, which will include the officer’s reports as well as witnesses statements. It is hard to advise anyone without seeing those documents.

 

What does the domestic violence "tag" or weapons enhancement mean for my charge?

 

If you’re curious about the potential outcome of your charge, the primary concerns occur where you are charged with a special allegation of domestic violence and/or whether a weapons enhancement is added to your assault charge. These “extra” allegations mean significantly more negative outcomes and they are often hard for lay people to understand. The terms are often applied broadly and the RCW allows prosecutors to add these “extras” based on the circumstances or relationships involved.

 

For example, a domestic violence allegation can be added to your underlying assault charge simply because the you and the victim had previously been roommates. The term “domestic” does not mean that you are or have been in a romantic relationship with the victim. It is a very broad term that encompasses a wide array of relationships. The biggest consequence of being found guilty of any crime that includes a domestic violence “tag” is that you will likely lose your gun rights—even if the underlying charge is a misdemeanor offense. And, for a weapons enhancement, you will likely face a longer jail or prison sentence. Again, the term “deadly weapon” can be as confusing as the term “domestic” because prosecutors have been known to consider many types of objects (broom, butter knife, etc.) as a potential deadly weapon. Essentially, if the object has the capacity to inflict death in the manner in which it was used, it can be considered a deadly weapon for enhancement purposes.

 

How can it be Assault if I never touched the victim?

 

Perhaps the most confusing assault charge occurs when the accused did not believe he did anything that could have amounted to an assault because there was no touching of the victim. This charge can occur because the accused put the victim in a position of apprehension of harm. This means the victim was scared enough by the perpetrator’s actions or words to believe the defendant was going to cause physical harm. Therefore, no actual touching has to take place for the person to be charged with a crime. While you can be charged with assault despite no touching, this charge does present more challenges for the prosecutor. The threat or fear of harm must still be reasonable under the circumstances. And, quite frequently, these situations occur without witnesses so it is still an issue of credibility before the jury.

 

Don't delay

 

If you or a loved one have been accused of assault or believe assault charges could be filed, it is very important to speak with a defense attorney immediately. As noted above, it is important to locate witnesses, take statements, and, in some cases, contact the prosecutor prior to the case being charged. If you are unsure about this process or need counsel, please contact our office early in the process. The delay can easily impact the outcome of an assault case. If you would like to learn more about assault charges, click the button below. 

 

CLICK HERE to learn more about Assault charges

Online court is fairly common with the new Covid regulations. For some criminal charges, certain counties are requiring defendants to appear at the courthouse but, most counties, are still wanting a zoom hearing. Better yet, there are many circumstances in which we can have Arraignment waived completely if we are hired early in the case.

 

If you are not required to appear in person, be aware that virtual court is still court. You want to look neatly groomed, dressed appropriately, and address the Judge as “Your Honor.” For most people, the following list of “don’t do” will be obvious. Since we have actually witnessed most of the following over the past few months, we decided some folks might need clarification.

 

Witt Law Group’s “What to know about Zoom court” list:

 

1.  Do not appear from your bed.
2.  Wear a shirt.
3.  Do not simultaneously play video games.
4.  Do not use the screen as your mirror (i.e. do not check your hair and makeup on the zoom screen).
5.  Do not have a pot leaf on your shirt or as your background.
6.  Do not appear via your phone while you are driving.
7.  Do not have someone in the bathroom in your background.
8.  Mute your television or radio.
9.  Do not smoke any substance.
10.  Do not eat or drink.

 

While appearing in court on your computer or phone is still a bit strange for most of us, there are some obvious benefits. You can still go to work. This allows people to avoid taking the day off and commuting. It is very efficient. You can still speak with your lawyer in a “chat room” so there is no risk of being without counsel. And, anecdotally, it seems that there are fewer sentences that require in-custody jail time.

 

If you have any questions about Zoom court or how to log into your court hearing, please give our office a call.

 

Have you received something that looks like the document below, in which it appears you have been ordered to use a Public Defender?

We have been receiving calls by confused defendants about this document that has been sent to people who have received Summons or have been released from jail. Judge Jahns created this document that automatically assigns defendants to a Public Defender even when the defendant did not want a Public Defender and would not qualify for one due to income.

So what do I do now?

Nearly every private attorney in the Kitsap County is confused so we aren’t surprised that defendants are so perplexed. We even had a client receive correspondence to contact his “Provisional” attorney after we had filed our Notice of Appearance—thereby interfering and confusing legal communication with our client. This troubles us on many levels and calls into questions the ethics of this communication.

Another private attorney had a client, who makes $120,000 a year, ask if she was required to use the Provisional attorney against her wishes. She saw that Judge Jahns ORDERED that public defense is representing her. She wanted to use this private attorney and, in particular, needed him to handle the Department of Licensing hearing (something public defense does not do). She was pretty upset when she thought her Constitutional right to counsel of her choosing was being infringed upon.

No, you are definitely not ORDERED to use a Public Defender

If you are also confused, NO JUDGE CAN ORDER YOU TO USE PUBLIC DEFENSE rather than an attorney of your choosing. And, be aware, if you choose a Public Defender:

1) They do not handle any Department of Licensing hearings regarding suspension of your license. Since you only have 7 days to request the hearing following an arrest for DUI, minor DUI, or Physical Control, be very careful about reliance on public defense for legal representation (i.e. this Order). If you are accustomed to private counsel, you may incorrectly believe that a Public Defender is supposed to handle all administrative matters along with criminal matters. This is not so.

2) If you have criminal history or open cases in other counties that will be impacted by your Kitsap County case, be very careful about using a Public Defender. The public defense dollars are assigned to attorneys in Kitsap. If you have a deal in Pierce that might be revoked or need to resolve cases in a certain order to avoid serving consecutive sentences (rather than concurrent), it is not your Kitsap Public Defender’s job to handle those details. They can not and will not appear to assist with you Pierce County case or any other county, for that matter.

3) You may be limited in resolutions. Creative resolutions can take time. A Public Defender will be assigned 100’s of cases during the year. A private attorney likely has no more than 20-40 active cases at any one time.

Of the 39 counties that receive funding from Washington State Office of Defense, we have yet to find one that is bypassing private counsel in this manner. The argument for the Provisional Appointment (free lawyers for everyone) is that they can’t screen defendants for indigency without a face-to-face meeting in the Clerk’s office. Yet, we can find no other city or county in the state that is essentially using tax payer dollars to fund ALL criminal defense (over 3500 misdemeanor cases in Kitsap District Court each year). In fact, in the state’s largest county, King, they have switched to doing screenings over the phone. And, Bainbridge Island allows you to mail, fax, or phone in your form for requesting a public defender.

Considering how the state responded to people who were inappropriately filing for unemployment benefits (forced to repay those benefits and some were criminally charged), this reeks of trouble to us. When the fall comes and so many are out of work, teachers are furloughed, bus drivers are unemployed, parks are closed, and Kitsap County Commissioners are explaining there are not enough funds to support Kitsap citizens’ needs, I would not want to be a person who made $70,000 a year and used free defense that was intended (by law) for those who are at or below poverty level. In the court of public opinion, this looks pretty bad.

If in doubt of whether you qualify for indigency, you can probably call any other court in the state and have your qualification determined. If you don’t want to be one of those folks explaining yourself later, it’s probably best to use the same standard that everyone else is using in the State of Washington.

 

 

KITSAP COUNTY DISTRICT COURT
STATE OF WASHINGTON

STATE OF WASHINGTON,                              No. XXX 
                                                     Plaintiff,
                                                                             PROVISIONAL APPOINTMENT OF COUNSEL

JOHN DOE
                                                     Defendant.


__________________________________________________________________
APPOINTMENT OF COUNSEL

               Effective “legal representation must be provided for indigent persons and persons who are indigent and able to contribute, consistent with the constitutional requirements of fairness, equal protection, and due process in all cases where the right to counsel attaches.” RCW 10.101.005.

               A court shall appoint counsel for all persons "wishing the appointment of counsel” in criminal cases upon a determination of indigency. RCW 10.101.020.

               This Court is unable to make a determination of indigency before the time when the first services are to be rendered.” In such a situation, a court “shall appoint an attorney on a provisional basis.”

               The Defendant wishes the appointment of counsel. Accordingly, it is hereby -

               ORDERED that the Kitsap County Office of Public Defense is appointed to represent the Defendant on a provisional basis.

DATED AND FILED - July 17, 2020

                                                                                                                                                                  /s/ Signed Electronically
                                                                                                                                                                 JEFFREY J. JAHNS Presiding Judge

INSTRUCTIONS TO DEFENDANT


Your case has been assigned to the Kitsap County Office of Public Defense, which may assign your case to one of the OPD contract attorneys.

Please make sure that you have completed OPD's gold client information sheet and given it to your arraignment counsel. If you have not done this, please contact OPD following your arraignment by either going to room 103 of the courthouse or by calling (360) 337-7015 and let them know that you wish to complete the gold client information sheet.

Your attorney contact information will be mailed to you within three business days of today's order. If you do not receive anything from OPD within one week from today, please contact OPD at (360) 337-7015.

1 Emergency Administrative Order No. 2020-22 (District Court Phase 2 Operations) (June 9, 2020), $19 at pages 15-16.
2 RCW 10.101.020(4)
3 Hereafter “OPD.”

 

DUI investigations are somewhat unique in that an officer is trying to find probable cause for your arrest with your help. And, even though the officer is doing an active investigation with your help, you are not actually in custody. For that reason, there is no need to read Miranda Warnings until the officer feels like the evidence collected (including your statements) sufficiently warrant the arrest.

 

At the point Miranda is read to you, the case is essentially ready to hand over to the Prosecutor. Usually, the officer will still want to collect a breathalyzer or blood sample but most people will do that voluntarily because Washington is an implied consent state. This means, if you don’t submit to the breathalyzer, you are automatically suspended for what is termed a “refusal.” This is a mandatory suspension by DOL regardless of the outcome of your criminal case.

  

What should I know to avoid creating problems for myself during a DUI stop?

 

While a DUI investigation is tricky and many people make incriminating statements without intending to do so, citizens can be aware of certain aspects of a DUI investigation to protect themselves.

 

1.  Remain Silent. While you can’t be completely silent, you do not need to answer “extra” questions. You should hand over your driver’s license, registration, and proof of insurance but you should not make “small talk” or think that your friendliness will get you out of an investigation. Every statement that you make will be included in the police narrative that is included in our discovery. Even the most innocuous statements will be used against you in the affirmative or used to prevent you from asserting a defense.


2.  Keep your license, registration, and proof of insurance in an easy to reach location. If you have to get out of the car to get your purse and retrieve the license, the officer is likely to make notes (not in your favor) about your body mechanics, movement, anxious or “fumbling” behavior. Even on cases where our clients had no alcohol, the report will always state that the officer “smelled an odor of intoxicants” or that you slurred your speech while asking to retrieve your purse in the back seat. Whenever possible, make your initial stop as uneventful as possible. Simply hand over the required items and do not make a comment.


3.  Don’t answer unnecessary questions. If you are asked about where you came from, where you are headed, or whether you are on medication, you are not required to answer those questions. You can simply ask if you are under investigation and, if so, you would like to remain silent for the duration of the stop. This requires the officer to build a case against you without your help! This does not mean you will avoid being arrested but it makes it more likely you won’t be convicted.


4.  Don’t fall for fake promises! Often, officers will say things like, “If you’re cooperative, you won’t get into trouble” or “I know you aren’t impaired but I just have to ask a few questions.” This induces the driver to start talking again and make incriminating statements. You are not allowed to lie to law enforcement without a legal consequence but an officer can lie to you. Lying is considered an investigation technique. Just remain silent regardless of what is “promised” to you. Do not suggest that you live a few blocks away or someone can come pick you up—those statements can be used to suggest guilt that you know you are impaired. Just keep quiet and wait to find out if you are going to actually be arrested.


5.  If you are arrested, do not be aggressive or argumentative. The moment of being arrested comes as quite a shock for most people. It is the first time you have every been in trouble with law enforcement and you may have the urge to act out in shock. Do not act out! Again, remain silent and physically cooperative. Every statement that you make will be included in the police narrative.


6.  Do not refuse the breathalyzer if you would like to be able to drive. As stated before, Washington is an implied consent state and you are automatically suspended if you refuse the breathalyzer. As a side note, if the officer mentions that you can have counsel to discuss the issue and dials the public defender, you better make sure the person is familiar with the implied consent laws in Washington. Many “on call” public defenders are new law school graduates who attended schools in other states. While they should know all of the laws in the State of Washington, most lawyers learn through experience. In this case, mistakenly telling you that it doesn’t matter whether you “blow” (which is true in many states) will have very bad consequences for you and that inaccurate advice will not be considered by the prosecutor. It is also important to understand that you do not have much time to think about the breathalyzer test. If you seem to be hesitating about taking the breathalyzer (even briefly), the officer can terminate the process and just write it down as a refusal.


7.  If you are in custody and brought to court for your Arraignment, do not attempt to plead guilty. In most courts, a judge will not allow you to plead guilty at Arraignment but don’t even think about it. Some people want to “explain their situation” and ask the court for mercy because they are immediately pleading guilty. This will not happen. Prosecutors and Judges handle thousands of DUIs a year and are desensitized to any excuses. There will be no mercy. A prosecutor’s “success” is typically determined by statistics surrounding convictions and they will only appreciate the fact that you made it easy to add to their “win” column.


8.  If you are booked into jail and released, you must return to the courthouse for your hearing. Do not miss court for any reason! If you miss your court date, you will likely face additional criminal charges and will make it nearly impossible to negotiate your DUI charge in a favorable way.


9.  Find experienced counsel. This cannot be overstated. You may have an amazing Family Law lawyer but she likely has no business handling your DUI case. Attorneys don’t technically “specialize” but they certainly have their strengths. The more you handle one type of case, the better you are. If you can find a criminal defense attorney who is a former prosecutor, has taken 100+ cases to trial before a jury, and understands the local rules and practices of where you are charged, that should be a good start. Be careful about lawyers who practice outside of the county where you are charged. Some are fine but others make it quite obvious that they don’t know what they are doing. We often see big firms out of Seattle or Tacoma send inexperienced lawyers to Kitsap County because the more well-respected attorneys don’t want to travel outside of their regular practice area. Unfortunately, the inexperienced “newbie” doesn’t know how to prepare the forms nor understand the local procedures. This is not a good sign to the prosecutor and does not bode well for your case.


10.  Send in your request for a DOL hearing. If you fail to submit your request by the deadline, you will be automatically suspended!


11.  Do not compare your case with anyone else’s case. A DUI case is so fact specific that it is impossible to compare the process or the result. Even in the same county, courthouse, and with identical blood alcohol levels, defendants will end up with different results. The prosecutor assigned to your case makes a difference. Your criminal history makes a difference. Whether you were argumentative makes a difference. Whether you remained in custody or were booked and released makes a difference. The way the officer wrote the report makes a difference. Whether you made any statements (even when you thought they made you look better) makes a difference. Whether you performed field sobriety tests makes a difference. Whether there is a breathalyzer or blood result makes a difference. There are so many aggravating or mitigating factors that it is pointless to compare your case to someone else’s situation. You will become more frustrated and anxious by listening to people who are not criminal defense lawyers and who are not reading your particular discovery packet. Save yourself the headache and keep communications regarding your case solely between you and your attorney.


12.  Finally, be completely honest with your lawyer. Do not omit important “bad” facts. Being arrested can be embarrassing and it can also bring up fears about past criminal history. For that reason, some clients will try to hide bad facts or fail to mention that they had a prior DUI in another state. Your attorney must know all of the bad facts! Even if your past criminal history wasn’t discussed at Arraignment and you think your past DUI won’t come up, you are wrong. A thorough criminal history will eventually be run and any arrests or convictions will be available for the prosecutor to see. If your attorney presents your defense as a “first time mistake” and then, in court, learns that you have past history, you can forget about any deal from a prosecutor or any jury believing your defense. Always be truthful and forthcoming with your attorney. Often, with enough notice, bad facts can be minimized by an experienced criminal defense lawyer.

 

Take Your Criminal Charge Seriously

 

A DUI charge is a very serious situation that can have lasting impacts on your personal and professional life. If you were diagnosed with cancer, you wouldn’t leave it to chance that things would work out. You wouldn’t delay in getting help. You would seek out the best and most experienced help to get you through that crisis. The same should be true for a legal challenge. Don’t leave your future to chance and don’t delay.

 

Being charged with DUI is not a hopeless situation. Be proactive. Contact a lawyer right away to discuss your unique facts. An experienced criminal defense attorney can do a lot to mitigate the damage to your life and get you successfully through this crisis.

July 03, 2020

Can You Beat A DUI?

 

Many clients want to know if we think there is any chance that their case will be dismissed. Often, the answer that a lawyer gives them will be a determining factor in hiring that lawyer. Consequently, many firms will advertise with ads that say “We win 95% of the time!” or some other click-bait type slogan. It is critical that consumers understand what those claims mean.

 

First, there were approximately 30,000 arrests for DUI in 2019. According to Washington Courts data, DUI charges were dismissed by the Court or Prosecution’s Motion on 3,645 occasions. That is a bit misleading unless you are a defense lawyer. As you can see from the image, 2,855 of those dismissals were on Prosecution’s Motion under “other.” 

 DUI Chart

The category “other” encompasses a myriad of options. It can mean that the Prosecution realized that the blood result won’t be returned before speedy trial runs. Consequently, the Prosecutor will “dismiss” the charges but file them again once once blood results are available. It can mean that a defendant successfully completed a 5 year Deferred Prosecution and the Prosecutor is now dismissing the charge. It can also mean that the defendant entered into a Pretrial Diversion Agreement that did not include a lesser charge but was a straight dismissal after “being good” for a period of time. The bottomline is that, while it might appear that nearly 10% of DUI cases are dismissed, that would be an inaccurate view of the data.

 

So, How Do Attorneys Claim To “Win” 97% Of The Time?

 

The key is determining the definition of “win” by the lawyer. For some, it is getting a Not Guilty verdict when the case goes to trial. However, depending on the state and county, about 2-10% of DUI cases go to trial. If you do the math, even if your potential lawyer had 10% of cases dismissed and another 10% of cases receive defense verdicts at trial, you still don’t get 97% success. Clearly, there is a lot of gray area in the definition of success when it comes to DUI defense.

 

What Should I Consider When Looking At “Success” For My DUI?

 

At Witt Law Group, our definition of success is dictated by the client. Obviously, we want to make any criminal charge disappear for our clients. That is always our first intention. We fight aggressively to expose every legal challenge possible and seek to suppress any evidence that should be inadmissible. However, we are also extremely skilled negotiators who will focus on our clients’ most pressing needs and fears. If you have been arrested for DUI, most people have a lot to lose—including freedom.

 

Despite those fears, we will never fudge the numbers. Statistics can be manipulated but, in the end, if a client doesn’t feel heard and aggressively represented, it isn’t a win. Every case and every client is unique. When the prosecution’s case is very strong, the client may simply want to mitigate damage to their lives and career by entering into a diversion agreement. Alternatively, some clients feel very strongly that they want to go forward with a trial and put their unique set of facts before a jury. For a person with a CDL who drives for a living, the jury trial could be worth the gamble. For clients who are in the medical or educational profession, their professional licenses are at stake and a trial may not be worth the risk. They might want a strong negotiator to reduce the charge or have the charge dismissed after a period of “good” time. Each client’s needs dictate how we strategize a “win.”

 

We have a highly successful strategy for finding any and all legal challenges to your arrest. There are many layers to this process and the complexity of options often depends on the availability of evidence (i.e. lapel and dash cam footage, witnesses, legality of the stop, etc.) as well as factors such as criminal history. Each case is thoroughly analyzed for extensive legal issues and facts that support your defense. While only a small percentage of our cases must go to trial, all of our cases are prepped for trial. Whether in negotiation or in front of the jury, we always seek a win for our clients.

 

Any private criminal defense lawyer will cost, at a minimum, a couple thousand dollars for a first time DUI defense. In Kitsap County, 95% of experienced local attorneys will typically charge $2500 for most misdemeanor offenses, including DUI. If you have multiple charges or extensive criminal history, the cost can vary. For example, if you are facing a felony charge, the cost is more likely to be near $5000 or even $10,000, depending on the seriousness of the offense.

 

If you are going to hire a private defense attorney for DUI defense, do not get too fixated on price—unless that has to be the determining factor for you. If you are hiring a criminal defense lawyer who has been a former prosecutor, has gone to trial at least 50 times before a jury, has practiced more than 10 years in the county where you have been charged, it is likely that you have weeded out quite a few lesser experienced attorneys. That’s a good place to start.

 

How Do I Find The Best Defense Attorney For Me?

 

Next, consider reviews and referral sources. You should focus on organic reviews (people who had to take the extra time to go to a site like AVVO or a Google Business site to leave their personal experience) as well as personal and professional referrals. Generally, these are the most trustworthy. If you are in the military or work at the shipyard, you will often hear our firm recommended because we understand the challenges with security clearances and dealing with your Command. If you have an unusual circumstance, such as managing security clearances, this is another factor you might consider in your choice of lawyer. Therefore, asking friends or colleagues for legal referrals might be a serious consideration if employment is a meaningful issue.

 

Often, you will see firms that put out extensive ads on Google. You will see their listing at or near the top of the page in a Google search and the word “Ad” (often in bold) will appear. It is normal for law firms to advertise but, where you see the same firm appear at the top for every search, it will typically mean that the firm is spending tens of thousands of dollars in ads per month. If a firm has a good reputation and does well with word of mouth referrals (often by other legal professionals), spending that kind of money on advertising is not necessary. Additionally, this type of advertising expense is past along in terms of much higher legal fees to new clients. You may even find quotes as high as $5000 or $7500 for DUI defense!

 

If you are being asked to pay $7500 for DUI defense, it is not going toward your defense—it is going to someone’s advertising budget. Kitsap County people are hard working and should not be asked to pay the fees of large Tacoma and Seattle firms. We respect that incomes in Kitsap County are not those of Seattle but it will never impact how hard we work for you. We get stellar results without outlandish legal fees.

 

Should I Rush To Hire An Attorney?

 

Yes and no. Criminal charges have some issues that can be time sensitive and you need to have qualified representation to help you. In the case of DUI, you have a very short window to request a DOL hearing to avoid license suspension. However, that does not mean you should feel pressured on the phone. You should always be able to speak with an attorney and have a free consultation. Additionally, the firm should be able to tell you who will actually represent you. This means that a “managing partner” should not sell you on the firm and then pass your case along to an inexperienced new lawyer. You should feel comfortable to ask that kind of question.

 

If you have a legal issue in Kitsap County, we are always here to help. We have been in the area for decades and our family for multiple generations. Our reputation matters and we strive to maintain that stellar reputation. If your legal issue is outside of Kitsap County, we would be happy to take your call and assist in finding you an experienced colleague. Feel free to call anytime. We are here for you 7 days a week.

If you suddenly realize that you have had too much to drink, can you pull over on the road without facing criminal charges?

 

Technically, you have committed the crime of DUI (assuming you are over the legal limit or “affected by” under the statute) but, if no one saw you and there is no evidence to prove this charge, a DUI charge is not likely. Regardless, you should always stop driving if you are impaired. The challenge can be understanding how to safely pull over and avoid a criminal charge.

 

ACCORDING TO THE STATUTE, WHAT AMOUNTS TO “PHYSICAL CONTROL”

 

When you pull over into a parking lot or the side of the road, you are in physical control of the vehicle. This means you can be charged with a crime. The statute that applies is:

 

RCW 46.61.504

Physical control of vehicle under the influence.

(1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:

(a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or

(b) The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or

(c) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(d) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. No person may be convicted under this section and it is an affirmative defense to any action pursuant to RCW 46.20.308 to suspend, revoke, or deny the privilege to drive if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.

(3)

(a) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after being in such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

(b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after being in control of the vehicle. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

(4)

(a) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section.

(b) Analyses of blood samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in control of the vehicle, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1)(c) or (d) of this section.

(5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.

(6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if:

(a) The person has three or more prior offenses within ten years as defined in RCW 46.61.5055; or

(b) The person has ever previously been convicted of:

(i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);

(ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);

(iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or

(iv) A violation of this subsection (6) or RCW 46.61.502(6).

 

As you can see, there are still many ways to be charged with Physical Control even though you have pulled off of the roadway. Additionally, while a substance may be legal or legally proscribed, it may still be illegal for you to consume it and drive. Furthermore, while Physical Control is different than being charged with DUI, the punishments are the same and creates very serious consequences for those convicted of the crime. 

WHAT CAN I DO TO AVOID BEING CONVICTED OF PHYSICAL CONTROL

 

Therefore, if you want to avoid a Physical Control charge, here are some pointers:

 

•  Do not have your car on.
•  Do not have the keys in the ignition (even if the car is off).
•  Do not be near any ingress or egress onto any road. In other words, park as far away from normal traffic flow as you can.
•  If you are going to sleep, do not be in the driver’s seat.
•  When it gets cold, do not be tempted to turn on the car for heat.
•  Do not put the keys into the ignition to listen to the radio (refer back to #1!)
•  To draw less attention to you, park perfectly straight into a stall (if a parking lot).
•  Do not park where customers would have to drive or walk past your vehicle to enter a business.
•  Do not assume a few hours of rest will put you below the legal limit. If you are impaired and do not want to sleep 8 hours, contact an Uber or friend to come pick you up.
•  Even though you are no longer driving, do not consume any additional alcohol while sitting in your car.
•  Make a mental note of when you pulled off the road.

 

DO I HAVE ANY AFFIRMATIVE DEFENSES?

 

If you have been charged with Physical Control, you must assert an affirmative defense of “safely off the roadway.” This means that you must assert you were no longer on a roadway. Pulling onto a shoulder or even a side street will not work. It must be an area far away from a roadway such as a parking lot or a rest stop. Additionally, it would be best to have proof of when you pulled over. You could text a friend that you pulled over to a parking lot or screenshot the time when pulled over to your location. Get out of the driver’s seat and make sure your keys are not in the ignition or such that you could “touch start” your vehicle. It must be absolutely clear that you can not exert ANY control over your vehicle.

 

WHAT WILL A PROSECUTOR BE LOOKING FOR?

 

To summarize, the 2 biggest factors that help you successfully assert your affirmative defense are:

 

•  Showing that you did not and could not assert control over the vehicle is critical. You did not have keys in the ignition and you did not have convenient access to the keys. Additionally, you were not in the driver’s seat.


•  You should be located in a secluded parking lot or rest area, which is as far away from the entrance to the road as possible. If it appears that you could easily return to the roadway (even if you are resting in the passenger’s seat when confronted), you will not meet the standard of “safely off the roadway.”

 

If you are confronted by an officer regarding your attempt to pull off the roadway and she suggests that you “just pulled over”, make sure to request that the officer touch the hood of the car. Having the officer verify that your engine is cool is helpful to asserting your defense.

 

WE ARE ALWAYS HERE TO HELP IN YOUR DEFENSE

 

Please share this information with friends. It is never acceptable to drive while impaired by alcohol or drugs and, if you suddenly feel impacted by a substance, it is critical that you pull safely off of the roadway. This blog is intended to be informational and not legal advice. However, since the charge of Physical Control requires that you assert an affirmative defense, it is important to understand the necessary steps a citizen must make to claim a defense. It is important for tearing down the prosecutor’s case against you as well as being able to put forth a strong defense.

 

If you have any questions regarding a Physical Control charge, a DUI, or any other criminal defense question, our team is here to help. We offer free consultations 7 days a week. 360.792.1000

Check Your Auto Policy Today

 

In the State of Washington, auto insurance carriers are required to offer PIP, or Personal Injury Protection, to their insured. This type of benefit is essentially a no-fault coverage that kicks in when you are injured in an auto accident. It can also be used where the driver of a car injures a pedestrian. The pedestrian is allowed to use the driver’s PIP coverage to assist with medical bills.

 

Why Do I Need PIP If I Have Bodily Injury Coverage?

 

The reason that PIP is so important is that, following an accident, the at-fault driver’s insurance does NOT pay your medical bills. Many people mistakenly hand over the at-fault driver’s insurance information at the hospital or doctor’s office believing the medical provider can simply bill third party from the start. This is not true. And, if you do not have medical insurance or PIP, you will be immediately on the hook for those bills. Your Bodily Injury Coverage will possibly cover injuries to your passengers or to those you injure if you cause an accident.

 

So When Does Third Party Pay My Bills?

 

After your case is settled through negotiation or a trial (assuming you prevail), your attorney will take the proceeds of your settlement and pay the medical providers. Prior to settling your case (which can be many months or years), the medical providers will file a medical lien against your case or may send your medical bills to collections. If your medical bills were paid through PIP, you will likely need to pay that amount back (subrogation) at a reduced rate. However, there are situations where your carrier will waive subrogation.

 

What Does PIP Cover?

 

PIP can be used to cover medical expenses and loss of income due to your accident. The minimum that a non-commercial policy can offer for PIP benefits is: (a) $10,000 medical, (b) $2,000 funeral, (c) $10,000 income continuation limited to $200/week, and (d) $5,000 loss of services limited to $200/week. There are larger PIP policies available so it is important to ask your agent to provide quotes if you would like a higher policy. If you do not reject PIP, the minimum policy will be included.

 

How Can PIP Help Avoid My Bills Going To Collections?

 

The standard PIP policy is usually $10,000 but you can opt to have a much higher policy. Occasionally, we see a $35,000 policy, which is very helpful. This means that your medical providers will bill your PIP policy just like it was medical insurance (however, there is not negotiated lower rate). The providers will bill your PIP until you reach the maximum benefit and the remaining balances are your responsibility. If you have medical insurance, the provider may then start billing insurance. As long as medical providers are paid, they will not send you to collections.

 

What If My Insurance Carrier Says I Don’t Have PIP?

 

In the State of Washington, you must affirmatively reject PIP in writing. If there is a dispute about coverage, the insurance company must provide your attorney with the document with your signature indicating your rejection. If the company cannot provide proof of your signature, they must offer at least the minimum $10,000 policy to you.

 

What Are Some Of The Challenges With PIP?

 

For PIP to apply, your care must be (a) reasonable, (b) necessary, (c) related, or (d) incurred within three years of the injury. So, your physical therapy will likely be reasonable and necessary but your subscription to a mail order food service is not. Certain insurance companies really like to mess with this type of denial. They will assert that, after paying out $2,000, they feel your care is no longer medically-necessary. They will have an “independent” review done of your records or have you submit to an Independent Medical Exam (IME). These are not really independent as the chiropractor or doctor will be chosen and paid for by the insurance company.

 

When Does PIP Not Apply?

 

There are some restrictions to using your PIP policy. If you intentionally hurt someone, such as ran them over or intended to cause damage and someone was injured in the process, your policy would not apply. There is also an exclusion for coverage if you commit a felony while you are injured. Similarly, if you are injured while racing your vehicle (under the statute that covers this term), your insurance company would likely deny your benefits. Most importantly, make sure you have all of your vehicles listed on the declaration page of the policy. If you or a relative are injured in a car that you own but was not on the policy, the company will not pay benefits. There are a couple of other random exclusions such as war and nuclear events that are included but the basic take away is that you should not commit a felony while driving and that all of your vehicles are listed on your declaration page.

 

Can A Company Stop Paying My Benefits?

 

Yes. If the insurance carrier believes that your treatment does not meet one of the basic requirements such as reasonable and medically-necessary, the company can refuse to pay bills in the middle of your treatment. If this happens to you, your attorney will assist in trying to regain your PIP benefits. If you are not represented and your insurance carrier has refused to pay under your PIP benefit or ordered a PIP Termination Exam (PTE), contact a lawyer today. Depending on the facts, they may be facing a bad faith insurance claim. There are many reasons for using your PIP benefits (reduced pay back and avoiding bills going to collections) but there are also certain requirements under Medicare Secondary Payer Rules that PIP be used before Medicare or Medicaid pays for any treatment. It is important to understand your benefits and how to maximize them in the event you are injured in an auto accident or were hit as a pedestrian by a car.

 

PIP benefits are critical to covering you in an accident yet they can be confusing in how and when they apply. For any questions regarding PIP benefits or your car accident, please do not hesitate to give our office a call.

 

If you had interaction with law enforcement in the past year or so, it’s possible that the officer's reports, which were forwarded to the Prosecutor’s Office, are now being reviewed. To the surprise of many, law enforcement does not determine whether you will be charged with a crime. An officer may arrest you for suspicion of a crime but only a prosecutor can decide to bring charges against you in a court of law. 

But it’s been almost a year since I was stopped by law enforcement!

 

With the “down time” from covid-19, many prosecutor’s offices are using this courtroom break to get through the stacks of reports that were forwarded by law enforcement over the past year. Most prosecutors are so busy that this is a task that sits on the back burner. Unless the report involves immediate harm to citizens, it’s possible that the “back burner” stack will sit indefinitely until a prosecutor finally “declines” charges. That is when the person who was arrested or investigated can breathe a sigh of relief.

Unfortunately, there are likely going to be fewer sighs of relief. The backlog of reports are being reviewed daily. We have heard from certain prosecutors that they have been charging dozens if not hundreds of cases right now. This means hundreds of people will be receiving Summons in the mail soon! 

How will I know if I’ve been charged with a crime?

 

If you had contact with law enforcement in the last year or believe you were being investigated for any reason, make sure that your address is up to date with the Department of Licensing. The clerk’s office will use that address to mail you the Summons. If you do not receive it and fail to appear for court, a warrant for your arrest will be issued. If you avoid dealing with the criminal charge, more trouble is sure to follow. You could be stopped for a traffic offense and, if the officer realizes there is a warrant for your arrest, you may be arrested right on the side of the road. So, create more certainty with your legal problem and put yourself in a better position to negotiate your case by following the rules.

 

Make sure your mailing address is correct. If you are unsure as to whether you are going to be charged with a crime, contact our office. We will monitor your situation for you. Avoid a warrant issued or an unexpected arrest. For any questions, give our office a call.