Ryan Witt

Ryan Witt

November 19, 2019

DUI and Corpus Delicti

In Latin, Corpus Delicti means “body of the crime.” It is a procedural safeguard that we have in our legal system that basically means that a person may not be convicted of a crime unless it is first proven that a crime has actually occurred. In other words, the State needs to demonstrate that something bad happened as a result of a violation of the law, and that the defendant was the one who violated it. There are two elements of Corpus Delicti in every offense: (1) a wrong has occurred, and (2) the wrong is the result of a specific person’s criminal act.

Historical Context

“Body of the crime,” as one can imagine, has to do with a murder charge. The idea is that, without a body, there is no proof that a crime has been committed. People can suspect that a murder was committed, but without a body, it is difficult to prove element 1 above – that a wrong has occurred. How does the State prove that the missing person is not just on an unannounced vacation to the Bahamas?

What About a Confession?

The Corpus rule receives the most discussion and debate when a person confesses to a crime that has been committed. A person’s confession as to the commission of a crime is not sufficient evidence to convict a person of a crime unless there is independent evidence that the crime being investigated was committed by the confessing individual.

The Corpus Delicti Rule is a Safeguard

The rule is meant to prevent the prosecution of mentally unstable people who admit to crimes for attention or notoriety. And it is also in place to reduce the use of interrogation tactics that tend to strong-arm confessions.

Do you remember the convicted pedophile who confessed to the 1996 murder of child JonBenet Ramsey? The Boulder Police Department did not find his DNA matched and it appears the confession was not perceived as trustworthy. This does not mean other law enforcement agencies would do the same thing or put so much emphasis on DNA. It is possible that a Prosecutor would try to charge the person based solely on the confession. While it seems far-fetched that people confess to crimes they did not commit, it does happen. The Corpus Delicti rule is one safeguard in protecting the veracity of the criminal justice process and keeping truly innocent (and perhaps mentally ill) people from being convicted for a crime they did not commit while allowing the actual perpetrator to go free.

What Does This Mean For A DUI Charge?

Assume two or more people are driving in a car. For one reason or another, the driver accidentally drives into a ditch. A passer-by sees the accident, and calls 911. At the same time, all of the occupants get out of the car and walk up to the road. When the police arrive, no one is left in the car. The policeman asks, “who was driving the car?” – to which Joe Suspect raises his hand and says he was the driver. Mr. Suspect is arrested. Throughout the investigation it is determined that he was under the influence of alcohol. Mr. Suspect is then prosecuted for DUI.

So How Does The Corpus Rule Work?

Continuing on with the same example from above, Ms. Defense Attorney realizes that Mr. Suspect is being prosecuted based solely on his confession. There is no independent evidence that Mr. Suspect was the driver of the car. There were multiple people in the car, and it could have been any one of them. Ms. Defense Attorney files a Corpus Motion and the case is dismissed.

What Officers Can, But Often Forget, To Do

In more cases than not, law enforcement officers stop investigating who the driver was once they obtain a confession. What officers can, but neglect to do, is: (1) check who is the registered owner of the car, (2) check who’s pockets the keys are in, (3) check for seat belt marks on people’s shoulders (this can indicate who was the passenger versus who was the driver), (4) check the seat position of the driver (is the person confessing very tall, yet the driver’s seat is adjusted for a short person?) and (5) ask other individuals who were witness to the accident to corroborate the events.

These small efforts can shut down a Corpus defense, but law enforcement typically does not make this final investigative effort. They believe once there is a confession, the case is closed. That is incorrect and law enforcement’s lack of diligence can be used to great advantage by a suspect accused of DUI.

This is a complicated area and you will need an experienced DUI attorney to help you. If you are accused of DUI or any other criminal offense, do not hesitate to give our office a call. We have offices in Gig Harbor, Bremerton and Poulsbo for your convenience. If you found this blog interesting, CLICK HERE to read more on similar topics. 

The charge of Driving While License Suspended (DWLS) is one of the most common criminal charges in the State of Washington. The reason for the volume of charging has to do with the fact that it is fairly easy to be charged with this offense.

There are three levels of DWLS. The level of DWLS depends on variables such as the reason your license was suspended in the first place, whether you made a mistake in trying to reinstate your license (assuming you were permitted to reinstate), whether you have been determined to be a Habitual Traffic Offender (HTO), and the nature of the crime (or just fines) that lead to the original suspension.

The following are the degrees of DWLS according the Revised Code of Washington:

First Degree DWLS


A person can be charged with First Degree Driving While License Suspended if they were caught driving after their license was suspended for being a Habitual Traffic Offender (HTO). A driver can be determined HTO by the Department of Licensing if they have 3 major traffic convictions such as vehicular assault, DUI, Hit and Run, DWLS 2 (there are others) or a combination of 20 separate traffic infractions, within a 5 year period. If you are convicted of DWLS 1, you face a mandatory jail sentence of up to 364 days in jail, a $5,000 fine, and new 7 year period of HTO suspension.

Second Degree DWLS


The primary differences between DWLS 2 and DWLS 1 are: (1) the person charged with DWLS 2 has not been suspended for being a Habitual Traffic Offender (HTO), (2) unlike DWLS 1, the person charged with DWLS 2 does not face a mandatory jail sentence. The person charged with DWLS 2 has been suspended due to a criminal conviction or an administrative finding (not HTO and not just due to unpaid fines). The crime of DWLS Second Degree is a gross misdemeanor and is punishable by up to 364 days in jail and a $5,000 fine. You may also face additional license suspension.

The most common way a person is charged with DWLS 2 is by violating a condition of probation on a previous crime. For example, if you were convicted of a DUI or have entered into a PDA for that DUI, you have certain conditions regarding your driving. You may not be able to drive or you might have an Ignition Interlock License. If you are caught driving outside of the permitted conditions (not using the ignition interlock or failing to get the ignition interlock license), you have committed a probation violation. As a side note, in addition to the new charge of DWLS 2, you are likely going to face a Motion To Revoke on the previous criminal charge if you are on a PDA. If this is your situation, you need to contact your criminal defense attorney immediately. You will have two separate pending criminal charges, which may be in separate jurisdictions.

Third Degree DWLS


This charge happens when a person is driving after their license has been suspended due to unpaid fines. The fines or costs can be due to unpaid traffic tickets, child support, or improperly reinstating your license. The last issue comes up when you fail to do all of the proper procedures necessary after you become eligible to reinstate your license. This criminal charge is a misdemeanor and is the least serious of the three degrees of Driving With License Suspended.

To learn how these charges will impact your past or existing criminal charges, contact our office for a free consultation. While DWLS is the most common criminal charge, the resolutions can vary significantly and dealing with the problem early is your best bet. Some counties and cities have options for you to pull unpaid fines out of collects and qualify for a relicensing program. To learn if that is an option for you, contact us immediately.


To learn more about the charge of Habitual Traffic Offender (HTO), CLICK HERE.

If you are facing a Driving Under the Influence (DUI) or Physical Control charge in the State of Washington, you may be eligible to enter a rigorous but rewarding treatment plan commonly known as a Deferred Prosecution. A successful Deferred Prosecution ends with the current charge(s) being dismissed, but not everyone is eligible to enter a Deferred Prosecution. The three major factors that determine whether or not a person may be allowed into a Deferred Prosecution are (1) you can not have done a previous Deferred Prosecution, (2) you have to believe that, without such treatment, you have a high likelihood to reoffend, and (3) you must be diagnosed as alcohol or drug dependent.

Benefits of a Deferred Prosecution


•The case is dismissed.


•There is no jail time.


•More often than not, even initially reluctant people at the end of the Deferred Prosecution report that is was a very positive experience.

Downside to a Deferred Prosecution

• You are only eligible to enter the program once in your life. If you mess it up, even at the beginning, that was your only shot.


•You are waiving substantial rights upon entry of a Deferred. If you fail, it is much easier for the State (or City) to convict you. If the Court deems that you are out of compliance, the Judge simply reads the Officer’s narrative of the events – no trial is held.


•In entering a Deferred, you have created a legal record that you are alcohol and/or drug dependent.


•The entrant bears the cost of the Deferred Prosecution program (some insurance companies will pay for the treatment).


•Even if successful, the Deferred Prosecution will be counted as a “prior offense” if an individual gets charged with a subsequent DUI.


•The entrant will only be allowed to drive a motor vehicle with a functioning Ignition Interlock device.

RCW 10.05.010 Eligibility


(1) In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution program. The petition shall be filed with the court at least seven days before the date set for trial but, upon a written motion and affidavit establishing good cause for the delay and failure to comply with this section, the court may waive this requirement subject to the defendant's reimbursement to the court of the witness fees and expenses due for subpoenaed witnesses who have appeared on the date set for trial.


(2) A person charged with a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020 or section 18 of this act. Such person shall not be eligible for a deferred prosecution program more than once; and cannot receive a deferred prosecution under both RCW 10.05.020 and section 18 of this act. Separate offenses committed more than seven days apart may not be consolidated in a single program.


(3) A person charged with a misdemeanor or a gross misdemeanor under chapter 9A.42 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020 Such person shall not be eligible for a deferred prosecution program more than once.

RCW 10.05.140 Conditions of Granting


As a condition of granting a deferred prosecution petition, the court shall order that the petitioner shall not operate a motor vehicle upon the public highways without a valid operator's license and proof of liability insurance. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490. As a condition of granting a deferred prosecution petition on any alcohol-dependency based case, the court shall also order the installation of an ignition interlock. To help ensure continued sobriety and reduce the likelihood of reoffense, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for alcoholism or drugs, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution program upon violation of the deferred prosecution order.

RCW 10.05.150 Program requirements (Per Statute)

 A deferred prosecution program for alcoholism shall be for a two-year period and shall include, but not be limited to, the following requirements:


(1) Total abstinence from alcohol and all other nonprescribed mind-altering drugs;


(2) Participation in an intensive inpatient or intensive outpatient program in a state-approved substance use disorder treatment program;


(3) Participation in a minimum of two meetings per week of an alcoholism self-help recovery support group, as determined by the assessing agency, for the duration of the treatment program;


(4) Participation in an alcoholism self-help recovery support group, as determined by the assessing agency, from the date of court approval of the plan to entry into intensive treatment;


(5) Not less than weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment;


(6) Not less than monthly outpatient contact, group or individual, for the remainder of the two-year deferred prosecution period;


(7) The decision to include the use of prescribed drugs, including disulfiram, as a condition of treatment shall be reserved to the treating facility and the petitioner's physician;


(8) All treatment within the purview of this section shall occur within or be approved by a state-approved substance use disorder treatment program;


(9) Signature of the petitioner agreeing to the terms and conditions of the treatment program.

Program Requirements (Per Treatment Providers)


The Washington State Treatment providers have a more succinct way of explaining the requirements. They break the two year period into three phases:


• Phase 1: Intensive outpatient treatment consisting of a minimum of seventy-two hours of treatment in a maximum of twelve weeks.


• Phase 2: Not less than weekly outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment.


• Phase 3: Not less than monthly outpatient contact, group or individual, for the remainder of the two-year deferred prosecution period.


Once a person completes the two year treatment portion, they graduate into the three year non-supervised portion. During the three year period, the person’s obligation is simply to remain crime free and continue to abstain from the use of alcohol or non-prescribed drugs.

Sample Forms For Treatment Providers

Attached please find (1) a template for the Deferred Prosecution Treatment Program, and (2) the Committment to Provide Treatment, which the agency providing the treatment is required to sign. 

 pdfSample Deferred Prosecution Treatment Plan

 pdfSamle Commitment To Provide Treatment


Witt Law Group is a Kitsap County based DUI Defense law firm. If you have a question that pertains to a DUI in Kitsap County or any of the cities therein, please do not hesitate to call one of our top rated Kitap DUI lawyers.

If you or a friend are in need of DUI defense, you have likely called around to several firms. For many years, the going rate for defense in Kitsap County has always been the same fee. However, in recent months, we’ve seen a noticeable increase in out of county firms advertising and charging huge legal fees. Some claim to have an office in the area but most do not. Consequently, they don’t come up under organic searches. They run Google Ads that appear at the top or very bottom of page one. There are 2 important differences from outside firms and local Kitsap area law firms:


1. The outside law firms will quote you anywhere from $5000 to $7500 for DUI defense. This is at least double, if not triple, the average price of defense. One reason for this is the cost of rent and advertising for an “outside” law firm. They pass along the high cost of rent in Seattle or Tacoma to their clients. Additionally, to compete with their big city law firms, they must also run ads that cost tens of thousands of dollars more than smaller counties, like Kitsap.


2. The most troubling aspect that we’ve witnessed is the assumption that paying triple the fee is somehow providing the client triple the experience. Sadly, the contrary seems to be true. We’ve seen many very inexperienced attorneys appearing on behalf of these outside area firms.


What to do?


1. Ask if you can meet them in Kitsap County. Do they actually have an office in Kitsap and are they available locally for your needs.


2. Ask for the name of who will appear on your behalf. Be certain that your fee is contingent on the experienced attorney appearing. This means the person has been a former prosecutor and/or done private defense for a minimum of 5 years.


3. Ask for specifics! How many criminal jury trials has your attorney done? Will they try to send someone else on their behalf? Explain that you are not wanting to hire anyone who will then substitute an attorney with experience of less than 5 years and 50 jury trials.


4. Ask if they are familiar with the Kitsap or Bremerton Court pleadings. This is a trick question. Everything is computerized in these courts and, from our observations, none of the out of county defense attorneys know how to use the local programs. This exposes their inexperience in Court and is a big disadvantage.


If the firm cannot answer these questions or will not guarantee the experience of their attorneys, keep calling around!


Normally, we would let the competition fade out on their own mistakes. However, we have taken numerous calls from outside firms asking Ryan to cover their hearings. They take an enormous legal fee and then ask local attorneys to do a “professional courtesy” by appearing at the Arraignment and other pretrial hearings for their clients. They simply are not doing the work. Then, when they can’t get the case dismissed or strike a compromise with the prosecutor, they try to charge another enormous trial fee. It’s terrible for the client and terrible for our profession.

September 24, 2019

Harassment

Harassment charges can occur when tempers run high and one individual causes another individual to feel threatened. The threat is typically to cause injury to the person or any other person or to cause physical damage to the property of another. The threatened individual typically initiates the investigation – usually with a 911 call – but the criminal charge of Harassment is brought against a defendant by the State of Washington (or a City, if the act occurred within city limits). On occasion law enforcement responds and makes as arrest, but on many occasions a person doesn’t know they have been charged with Harassment until they receive a summons in the mail.


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

 

Harassment can be charged as a Gross Misdemeanor or as a Felony. What the charge will be depends on the facts or allegations against the accused. The elements of the different levels of Harassment are as follows:

RCW 9A.46.020 (Gross Misdemeanor)

 

(1) A person is guilty of harassment if:


(a) Without lawful authority, the person knowingly threatens:


(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or


(ii) To cause physical damage to the property of a person other than the actor; or


(iii) To subject the person threatened or any other person to physical confinement or restraint; or


(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and

(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication.

RCW 9A.46.020 (2)(b) (Felony)

 

A person is guilty of Harassment at the Felony level if the above elements are met, and in addition:


(i) The person has previously been convicted in this or any other state of any crime of harassment, as defined in RCW 9A.46.060, of the same victim or members of the victim's family or household or any person specifically named in a no-contact or no-harassment order;


(ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person;


(iii) the person harasses a criminal justice participant who is performing his or her official duties at the time the threat is made; or


(iv) the person harasses a criminal justice participant because of an action taken or decision made by the criminal justice participant during the performance of his or her official duties. For the purposes of (b)(iii) and (iv) of this subsection, the fear from the threat must be a fear that a reasonable criminal justice participant would have under all the circumstances. Threatening words do not constitute harassment if it is apparent to the criminal justice participant that the person does not have the present and future ability to carry out the threat.

 

There are multiple ways to resolve a Harassment Charge


Harassment charges are handled in District, Municipal Court and Superior Courts. Gross Misdemeanor Harassment charges are handled in the District and Municipal Courts. These “lower” Courts offer more options regarding how to resolve a Harassment case other than going to trial or pleading guilty. Felony level Harassment charges are handled in Superior Court. While the options are different than the options in a District or Municipal Court, there are still a number of ways to resolve a Harassment case that will hopefully avoid the finding of Guilty.


At the Misdemeanor level:


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


CLICK HERE for more information on a PDA


A second option at the Misdemeanor level is entering into a Compromise of Misdemeanor. This happens when the defense attorney for the defendant obtains a signature from the alleged victim on a document that asserts that the victim is waiving future civil litigation against the defendant and wishes that the defendant not be prosecuted. This is typically the quickest and least expensive way to have a Harassment case dismissed.


CLICK HERE for more information on a Compromise of Misdemeanor


If a defendant wishes to not resolve the Harassment through a Diversion (PDA) or a Compromise, they always have the right to go to trial. At trial, a defendant can require the Prosecutor to prove every element of the Harassment charge beyond a reasonable doubt.


If neither of these options seems like a fit, then a defendant always has the ability to set the matter for trial and force the Prosecuting Attorney to prove all the elements of Harassment beyond a reasonable doubt.


At the Felony Level


While options are slightly more restrictive than at the Misdemeanor level, Felonies can also typically be resolved through some type of alternative disposition. Often the best resolution at this level is through Felony Diversion. In a nutshell, Felony Diversion is where the defendant enters into a contract with the Prosecuting attorney where they agree to pay restitution, do some community service and remain crime free.


CLICK HERE for more information on Felony Diversion


If a drug addiction was a contributing factor to the criminal behavior, Drug Court may be an option that results in a dismissal of the charges.


CLICK HERE for more information on Drug Court


If mental health issues were a contributing factor that led to the crime being committed, then Behavioral Health Court may be an option. Successful completion of BHC will also lead to the charge being dismissed.


CLICK HERE for more information of Behavioral Health Court


Lastly, a good defense attorney may be able to convince the Prosecuting Attorney to reduce the Felony Level Harassment to a Misdemeanor Level Harassment, typically in exchange for a plea.
If none of these options seems like a fit, then a defendant always has the ability to set the matter for trial and force the Prosecuting Attorney to prove all the elements of the crime beyond a reasonable doubt.

 

Witt Law Group serves individuals that have been charged with the crime of Harassment in Kitsap County and in the City of Gig Harbor. We also handle cases in nearly all the cities within Kitsap County. That includes Kingston, Poulsbo, Bainbridge Island, Silverdale, Tracyton, Port Orchard, Olalla, Bremerton and Manchester. We have offices in Gig Harbor, Bremerton and Poulsbo for your convenience. We offer free consultations and can be reached at (360) 792-1000 (Bremerton) or (253) 312-3838 (Gig Harbor) or (360) 773-8598 (Poulsbo)or you can text one of our attorneys at (360) 710-0027.

September 01, 2019

Minor In Possession (MIP)

 

Minor in Possession (MIP) charges can occur when an individual under the age of 21 has in her possession alcohol or is exhibiting the effects of having consumed alcohol. These offenses typically originate when an officer is called to an underage party or when an officer conducts a traffic stop and there are juveniles with alcohol in the car. The criminal charge is brought against a defendant by the State of Washington (or a City, if the act occurred within city limits).


Do You Have A Minor In Possession Charge? CLICK HERE And We Will Contact You Within 15 Minutes


RCW 66.44.270 is the statute that governs Minor in Possession Charges. It states:

(2)(a) It is unlawful for any person under the age of twenty-one years to possess, consume, or otherwise acquire any liquor. A violation of this subsection is a gross misdemeanor punishable as provided for in chapter 9A.20 RCW.

(b) It is unlawful for a person under the age of twenty-one years to be in a public place, or to be in a motor vehicle in a public place, while exhibiting the effects of having consumed liquor. For purposes of this subsection, exhibiting the effects of having consumed liquor means that a person has the odor of liquor on his or her breath and either: (i) Is in possession of or close proximity to a container that has or recently had liquor in it; or (ii) by speech, manner, appearance, behavior, lack of coordination, or otherwise, exhibits that he or she is under the influence of liquor.

While the elements of the Statute sound simple, there are many Washington State cases that have cut away at the Prosecution’s ability to convict minors on these charges. For example, the word “possess” has been defined so specifically that once a minor has consumed the alcohol, they no longer possess it. Once it has been consumed they no longer have the ability to exert any control over it – hence they no longer are in “possession.”

There Are Positive Ways To Resolve A Minor In Possession Charge


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


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


CLICK HERE for more information on Pre-Trial Diversion Agreements


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


Defenses To MIP


Additionally, if the case goes to trial, there are several defenses to the charge of Minor In Possession. The defenses that can be asserted by the defendant are:


The alcohol has already been consumed – hence they no longer “possess” it, or
The alcohol, if consumed, was consumed in another jurisdiction, or
The Officer did not have reason to question the minors, or
The Officer solicited incriminating statements from the minors prior to providing Miranda warning.

This is not an exhaustive list of defenses for pre-trail motions or trial, but these are more common. Other defenses, such as lack of knowledge, intent or positive identification can also be argued at trial.

Collateral Consequences Of MIP


While MIP does not sound like the crime of the century, there are reasons to fight to avoid the conviction. On top of potential jail time and fines, a minor will lose their license if convicted of MIP. Also, probationary requirements may prohibit a minor from being able to move away and go to the college or employment of their choosing. For what seems like an “insignificant” charge, the ramifications can be quite significant on a young person’s life. Getting an experienced criminal defense attorney on board early is crucial to a successful MIP defense.


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


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

 

Witt Law Group calls B.S.


Skateboarding may be a crime, but the act of skateboarding is only a crime if it occurs in an area where the police have jurisdiction to regulate it. Skateboarding in your driveway (or any other place that is private property) is not a crime, even if the City has an ordinance preventing it.


This photo depicts the City of Gig Harbor’s attempt to curtail skateboarding. The problem with the City’s attempt is that it is trying to control conduct on private property. These signs are erected in the “Up Town” area, which is private property. Even if the City had a “No Skateboarding” ordinance, it would only be enforceable on public property, not private.

Possibly Trespassing


The remedy that “Up Town” does have is to alert the authorities that individuals are Trespassing. If there is adequate signage prohibiting skateboarding on private property that is otherwise open to the public, then the skateboarder could be removed. The skateboarder could be “trespassed” and prevented from returning to the property. If they returned, then the City Prosecutor could prosecute the individual for Trespassing in the Second Degree.

Hollow Threat

No one at “Up Town” is getting prosecuted for skateboarding. Witt Law Group’s official, legal analysis: The sign is a hollow threat. It is B.S.


At Witt Law Group, we handle all kinds of criminal defense issues, even ridiculous ones. We defend cases in Pierce and Kitsap Counties, and have offices in Gig Harbor, Bremerton and Poulsbo for your convenience. We can answer your calls in the evenings or on weekends. Thanks for reading.

July 06, 2019

Physical Control

In Washington State, the crime of Physical Control has essentially the same consequences as a DUI conviction. People often wonder what Physical Control is.


The Elements Are Not Defined


The Statute (RCW 46.61.504) does not exactly define the elements of Physical Control. Courts have been known to use the definition that the defendant “is in a position to physically regulate and determine movement of the vehicle.” The most common scenario is when a person decides to stop driving and either wait out their impairment or sleep it off. People will pull over to the side of the road or pull into a parking lot. Often, people go to sleep. Following an arrest based on these facts, Courts determine that people sleeping in their cars with the engine running are in physical control of the vehicle.


Affirmative Defense of “Safely Off The Roadway”


There is a Statutory Defense to Physical Control. If a defendant can prove by a preponderance of the evidence that they moved the vehicle safely off the roadway, that is a complete defense to the charge. The definition begs the question – what constitutes “safely off the roadway”? The definition is left to the trier of fact, meaning the jury. The legal community (meaning prosecutors and defense) typically believes that a safely off the roadway defense has merit when the defendant has moved the vehicle off of the roadway and it presents no present danger to the community. The defense can even be present when the engine is running. This is a broad idea of the defense and most fact patterns are different, but the defense is often available if the defense attorney knows what to look for. It can mean the difference between a conviction and a not guilty verdict.


Get The Best Possible Defense For Your Physical Control Case


At Witt Law Group, we have been practicing DUI and Physical Control defense for 15 years. We have handled hundreds, if not thousands, of these cases. We provide defense in Kitsap and Pierce Counties. We have offices in Gig Harbor, Bremerton and Poulsbo.

Speeding tickets are annoying. People often do not feel protected and served when a young Trooper in an unmarked car hands them a revenue generating ticket. Some people are inclined to not sign the ticket.


We have been asked several times over the years – “Is it unlawful to refuse to sign the ticket?”

RCW Dictates You Must Sign The Ticket


In Washington State, RCW 46.61.021(3) requires a person to “sign an acknowledgement of receipt of the notice of infraction and RCW 46.61.022 makes willful violation a misdemeanor. So, yes, it is a crime (misdemeanor) to refuse to acknowledge receipt. However, you are not required to promise to respond. Even if you do not agree with it, you need to sign the ticket. You can always challenge it later.

Best Practice - Respond And Fight It


The best practice would be to sign the ticket, and then let us defend you! At the Witt Law Group, Ryan Witt has been representing people with speeding tickets for over fifteen years. No case is too small. We acknowledge that for some, getting a speeding ticket is a big deal, and we treat your day in Court with the same dedication as we would give a felony. We handle infractions in Pierce and Kitsap Counties. Contact our Gig Harbor, Bremeton or Poulsbo office today and let us turn that ticket into a dismissal.

At the end of 2012 Washington voters approved Initiative 502 which legalized possession of marijuana by persons over 21. In the Washington Laws, there is a statute that “saves” sentences and or convictions that exist when the law changes (to the benefit of the defendant) after the fact. For example – if there was a hypothetical law against selling beans, and you were convicted of selling beans, and then the law changed to make the sale of beans legal, your bean selling conviction would still stand as a valid conviction. The issue with I-502 was that people were being sentenced for marijuana possession long after marijuana was legal. This was happening when individuals were on diversion style agreements that they entered when marijuana was illegal, and then they somehow failed on the diversion and were kicked off and sentenced – when marijuana was legal.

Effect of State v. Rose


The Washington Court of Appeals in State v. Rose corrected this issue. The basic facts were that in 2012, Rose was smoking marijuana while fishing on the Yakima River. A Fish & Wildlife officer busted him for the marijuana possession. In October of that year, Rose entered into a deferral. Two months later, in December of 2012, I-502 went into effect. In January 2013, the district court revoked Rose's deferral and found him guilty. At sentencing Rose moved to dismiss based on I-502's decriminalization. The district court denied his dismissal, citing RCW 10.01.040 – the “saving” clause previously mentioned.


This revocation issue made its way to the Washington Court of Appeals. December 17, 2015, the Court ruled on the Rose case, overturning the District and Superior Court’s convictions. It was held that the “savings” clause would no longer allow the conviction for possession of marijuana when someone is bumped off of an old possession of marijuana deferred prosecution. What that means is if a person entered into some type of diversion agreement while marijuana was illegal, if the diversion agreement is revoked it will not lead to a conviction.