Jennifer Witt

Jennifer Witt

Were You Charged With Domestic Violence?

 

Actually, no. In Washington, you are charged with a crime and the domestic violence or “DV” tag is added to your criminal charge. This confuses a lot of people so they frequently call our office and want representation for their domestic violence charge. Since there are so many criminal charges that can have the domestic violence tag, it’s important to know where to start when you call around to find a lawyer.

First, most DV cases involve an underlying assault charge. We see Assault in the Fourth Degree most often. Typically this happens when someone in the household or some kind of relationship accuses a person of an act that falls under RCW 9A.36.041:

 

Assault in the Fourth Degree

 

(1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another.

(2) Assault in the fourth degree is a Gross Misdemeanor, except as provided in subsection (3)(b) & (3)(b) of this section.

(3)(a) Assault in the fourth degree occurring after July 23, 2017, and before March 18, 2020, where domestic violence is pleaded and proven, is a class C Felony if the person has two or more prior adult convictions within ten years for any of the following offenses occurring after July 23, 2017, where domestic violence was pleaded and proven:

(i) Repetitive domestic violence offense as defined in RCW 9.94A.030;

(ii) Crime of harassment as defined by RCW 9A.46.060;

(iii) Assault in the third degree;

(iv) Assault in the second degree;

(v) Assault in the first degree; or

(vi) A municipal, tribal, federal, or out-of-state offense comparable to any offense under (a)(i) through (v) of this subsection.

For purposes of this subsection (3)(a), "family or household members" for purposes of the definition of "domestic violence" means spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common regardless of whether they have been married or have lived together at any time, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, and persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship. "Family or household member" also includes an "intimate partner" as defined in RCW 10.99.020.

(3)(b) Assault in the fourth degree occurring on or after March 18, 2020, where domestic violence against an "intimate partner" as defined in RCW 10.99.020 is pleaded and proven, is a class C Felony if the person has two or more prior adult convictions within ten years for any of the following offenses occurring after July 23, 2017, where domestic violence against an "intimate partner" as defined in RCW 10.99.020 or domestic violence against a "family or household member" as defined in (a) of this subsection was pleaded and proven:

 

(i) Repetitive domestic violence offense as defined in RCW 9.94A.030;

(ii) Crime of harassment as defined by RCW 9A.46.060;

(iii) Assault in the third degree;

(iv) Assault in the second degree;

(v) Assault in the first degree; or

(vi) A municipal, tribal, federal, or out-of-state offense comparable to any offense under (b)(i) through (v) of this subsection.

 

What Is An Assault?

 

The statute above contains a lot of information but it never really tells the reader what does it mean to commit an assault. In our state, the legislature has not precisely defined the term assault. It is our courts that have provided guidance on the topic through case law. The basics of this case law tell us that, to be accused of an assault, the defendant must:

•  Intentionally touch or strike the victim in a harmful or offensive way, OR

•  Attempt to inflict injury to the victim when the accused had the apparent ability to do so, OR

•  Act in such a way that the accused intentionally placed the victim in apprehension of harm.

 

Just like the statute, the guidance from the courts often adds more questions than answers. For that reason, assault cases can be quite tricky. Unlike DUI cases where you can tell within five minutes if a person has a solid trial case and good chance of winning, the assault cases pose much greater risk. Unless there are unbiased and sober witnesses to the event, the case often boil down to “he said—she said” situations. Those make for problematic trial cases and prosecutors rarely back down from their position to prosecute. And, unfortunately, the prosecutor will often add “hold back” charges if you choose to take the case to trial.

 

If Assault Trials Are So Risky, How Do I Defend Myself?

 

There are several defenses to assault cases but you need a very experienced defense attorney to analyze your case in detail. It is important to consider the defenses and likelihood of success before forcing the prosecutor to a posture where trial is inevitable—particularly where it is a bad trial case for the defendant.

 

And, while the accuser may have some serious factual challenges to his or her version of events, it can be very challenging to attack the “victim” during a trial. It is a tactical decision that the attorney really has to weigh in the defense strategy. That can be very frustrating for the accused since he or she wants to explain how the “victim” is not really a victim. However, the legal defenses that an experienced attorney is considering often are not intuitive to the accused. Non-lawyers often want to talk about the victim and disparage his or her character. Unfortunately, character evidence is rarely admitted in a trial so the defense strategy can be quite different than what the client expects. Experienced criminal defense lawyers will know what evidence will be admitted or allowed at trial and what evidence will be objected to and likely not permitted by the judge.

 

Finally, if the victim does not feel like a “victim” or is non-cooperative with the state, that can change how defense approaches the situation. That is not to say that the victim can “drop charges” because only the State can bring or drop criminal charges. And, prosecutors are trained to understand that true domestic violence victims frequently recant their stories out of fear. So, simply because the victim in your case wants to see the charges dismissed does not mean as much as you might think.

 

Delays in Hiring Defense Counsel Can Create Even More Problems

 

One thing is for sure, any assault charge is incredibly serious. Things happen quickly that non-lawyers aren’t aware of and the accused needs guidance and advice immediately. The trajectory of your case is greatly impacted by how quickly you get a very experienced local criminal defense attorney on the case. When your case has a domestic violence tag, there are additional consequences that the attorney is going to want to try to mitigate right away. So, if you or a loved one is accused of assault in Western Washington, contact our office right away.

 

We are here for you 7 days a week. (360) 792-1000 (call or text)

 

You can learn more about Assaults and the Domestic Violence Tag by clicking on the links below 

 

An Explanation of Washington's Mandatory Arrest Law

Was Calling The Police A Mistake And Did It End In An Unwanted Assault Charge?

Do Not Call, Text Or Send Messages To Your Partner Who Has A No Contact Order

 General Info On Assault Charges

No Contact Orders When Charged With Assault

 

Should I Just Use a Public Defender?

 Hiring a private defense attorney can be pretty costly. Most folks don’t have thousands of dollars to do that nor were planning to be in trouble. It’s understandable that a person would prefer to test their luck with the assigned Pubic Defender. Unfortunately, most people don’t consider the collateral issues that will come up due to being criminally charged. You are likely to save money in the long run when you prevent those problems.

 

For example, when someone who was arrested for DUI on Friday and bailed out, the Monday Arraignment may not go as you anticipate. On a fairly regular occurrence, the jail will either release the person with no bail or set bail at $5000 (when there should have been a no bail hold). The person arrested pays the $500 (10% of bail to a bailbonds company) and heads home. The defendant doesn’t realize that, since it was a second DUI or perhaps someone was injured, the prosecutor is going to ask to have you taken back into custody and increase bail. That comes as quite a shock.

 

If you call us on Saturday morning, we can have you doing proactive steps that will greatly reduce your chance of being taken back into custody. We need to make sure you take certain steps that can convince the Judge that you are not a risk to the community and will return for all future court dates.

 

In addition to saving you money by reducing or eliminating bail, we help our clients stay out of jail, which helps them stay employed. Whenever possible, we also try to avoid having our clients attend court. In some cases, we can have the Arraignment waived and we also try to have our clients attend court via zoom so they don’t miss more work or have to put children in daycare.

 

In assault cases, we do everything possible with the accused and the alleged victim to reduce the time of the No Contact Order (if appropriate and requested). In these cases, the accused is usually having to maintain and pay for a separate residence. The parent left at home has to maintain the entire household and take care of the children without any help. This can get very costly where additional rents and child care are now required. Getting that NCO lifted as soon as possible saves money. That is not something a public defender would assist with nor is appropriate since it does not pertain to your defense.

 

What is the problem with trying a PD then hiring a private lawyer later?

 

This is probably the biggest mistake you can make. The vast majority of “posturing” in a criminal matter happens at the outset of the case. In fact, whenever possible, we want on the case the moment the Summons arrives and BEFORE the Arraignment. We can help the client get a lot of proactive steps taken that will greatly help with getting a dismissal or negotiating the case favorably. If you were arrested and there is no Summons, we still want to be on the case prior to Arraignment. Even 12 hours can help us change the trajectory of how the client is perceived—especially for setting bail or release conditions.

 

What are some of the benefits to hiring a criminal defense lawyer early?

 

•  Reduce or prevent bail
•  Argue against expensive or burdensome release conditions
•  Discuss your case prior to Arraignment rather than weeks after with a PD
•  Make sure your DOL hearing request gets filed
•  Get advice on handling your DOL hearing (PDs do not handle these)
•  Get advice on how to get licensed even if you are suspended
•  Get the client into evaluations or other tasks that will improve their odds
•  Put client in touch with advisors regarding professional licenses, clearances, etc.
•  Negotiate to have case dismissed or charges reduced prior to Arraignment
•  If pre-Arraignment, negotiate resolution and have only one hearing
•  Work with alleged victim to take steps to facilitate removal of NCO, if desired
•  Assist managing concerns of employer to avoid termination
•  Manage any outstanding issues such as warrants or other charges
•  Prepare response/defense on a MTR on another case
•  Managing compliance reports
•  Avoiding bench warrants
•  Notifying client if a MTR is filed or is likely to be filed
•  Managing MTR if a new charge is filed (entering a denial)
•  Answering the phone 7 days a week to answer questions about paperwork
•  Advising in the future on employment or other issues that come up

 

The list goes on. The primary benefits will depend on your charge, the facts, and what concerns you have regarding the future. If you are serving in the military, you will have other unique issues that are best served by private counsel particularly because you are always on the move. Having local counsel who is monitoring your case and can locate you or your command to give updates on court dates is invaluable to active duty. Avoid those warrants!

 

Why don’t Public Defenders do the same things

 

Public defense tax money is supposed to be used for those people who are deemed indigent and qualify based on a criminal charge. Many of the “benefits” listed above are issues that arise due to complications from being criminally charged but they are not directly related to the actual defense of your case. For example, your license suspension is triggered by your arrest but it is a civil matter. PD does not handle civil issues. Many of the other issues listed above pertain to counsel or advice rather than defense. A private defense attorney is really counseling you through this process while advocating for your defense.

 

See the difference in action

 

If you still aren’t sure about how this works, we encourage you to sit in on criminal calendars in Kitsap County. You will regularly see public defense clients miss court dates.

 

When their public defender is asked about the client’s presence or lack thereof, the attorney typically responds with “I have no knowledge of my client’s whereabouts” or “I haven’t had contact with this client” or “I don’t have a phone number for this client.” Then, the prosecutor requests a warrant for $2500 or $5000, which is usually granted.

 

The truth is, the public defender has no time nor any obligation to track down the client in advance to notify them of the hearing. In 99% of cases, a notice of court date was mailed to the client and that suffices as notice. However, many people do not update their accurate mailing address (the court uses what you have on file with DOL) so the client never gets notice. Unfortunately, you are deemed to have been given adequate notice. Basically, a lack of notice based on moving or not updating your address is your fault.

 

You will never see this with our clients. We require clients to provide multiple methods of contact and keep us updated of changes. When we are notified of a court date, we notify our clients and provide them a zoom link for court. Our clients do not miss court due to these issues. Consequently, our clients do not get bench warrants and ruin their chance for a favorable resolution to their case.

 

Being informed of pending court dates may seem trivial but it can make or break a case. Prosecutors and judges do not trust people who fail to show up to court and typically punish you for that misstep.

 

I’ve never hired a criminal lawyer so how do I know if I am paying too much?

 

First, criminal defense attorneys charge on a flat fee and are barred by law from charging a contingency fee. They do not bill hourly against a retainer like a family law attorneys or other types of civil attorneys. If you have a felony or potentially very time-intensive case, an attorney may charge you a flat fee but ask that you also be prepared to pay additional money later on an hourly basis. This is not typical for misdemeanor cases.

 

While the flat fee covers nearly everything for the case, there are typically additional fees if the case goes to trial. The Fee Agreement will list that as a “trial fee” and indicates the cost by day. So, if your trial is a two day trial, you can multiply the trial fee by the days your attorney anticipates your trial will take. Most misdemeanor cases are usually one or two day trials. However, don’t worry too much about that additional fee because the vast majority of DUI cases do not go to trial (in most counties, over 90% resolve prior to trial).

 

What does it cost to hire private defense for a DUI or other misdemeanor?

 

There is a range on this because larger firms tend to have much higher overhead. Additionally, firms in larger cities will have more costly leases and other overhead related to running a business in a more populated area. Be prepared to pay more if the attorney you hire is located in a larger city or runs extensive advertising campaigns.

 

For example, you can pay as much as $15,000 for a DUI in Seattle or Kirkland and that will likely not include trial fees. If you hire an attorney who works out of Tacoma, you might expect to pay over $6000 for a first time DUI and we have heard firms charging as much as $7500. In Kitsap, some attorneys are charging as much as $5000 or $6000 for a first time DUI particularly where they have satellite offices outside of Kitsap.

 

We are able to charge less than most firms because we have relatively low overhead and do not spend money on fancy advertising (notice, you won’t find our faces on a billboard or in a radio jingle…those cost tens of thousands of dollars every month). We appreciate that most of our clients come to us by referrals or past client reviews so we pass that savings on to our local community. So, if you have no criminal history and your case is a first time DUI without special allegations (i.e. no accident, no obstruction or eluding) or a Hit & Run unattended, the fee is typically around $3000 depending on your facts.

  

If you are facing a criminal charge in Kitsap County or surrounding cities, please give our office a call for help. We answer 7 days a week. (360) 792-1000.

 

For More Information On Hiring Private Defense, Watch Our Video Below! (Three Part Series) ↓

 

 

The calls and emails have been steady since the Keller decision last week. The common theme is “I heard DUI cases are getting thrown out.” Nope. Nada. Not the case.

 

Again, the Keller decision has to do with admissibility of BAC results. Judge Jahns’ decision means that the BAC results (in Kitsap County) will not be admissible as evidence in a DUI trial.

 

This means, there must be a BAC result in your case for the Keller decision to be relevant.

 

Additionally, the BAC is only ONE piece of evidence the Prosecutor will present (or not) to a jury during a trial. If the BAC is not admissible, it weakens the Prosecutor’s case but it does not mean the case is “tossed out.” The prosecutor will use other evidence to establish that you were impaired.

 

Many out of state drivers or people who are unfamiliar with the fact that Washington is an implied consent state refuse to blow into the BAC machine when arrested for DUI. As an implied consent state, you agree, by driving on Washington roads, that you will submit to the BAC (this is different than blowing at the roadside test) if being investigated for DUI. If you refuse, you will face harsher penalties, the DOL suspension is longer, and the Prosecutor is allowed to argue inferences from your refusal.

 

So, for those who refused the breathalyzer in either their pending case or past case, the Keller decision has no impact for you. There is no BAC that is relevant to your case.

 

Finally, if you have a pending case or a past case with another attorney, you must contact that attorney to discuss your concerns. It is not appropriate for lawyers to comment on another criminal defense case because EVERY fact is relevant and, without reviewing the discovery provided by the prosecutor, it is inappropriate to offer advice or speculate on a pending or past case.

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

While the word “trial” is in this procedure, it is quite a simple and quick process. There are no witnesses, opening statements, closings, or even a jury. It is a hearing that occurs after the defendant has been Arraigned (see Arraignment in our blog). If your attorney is going to request a future date for a pre-trial, your attorney will discuss with you the need to sign a Speedy Trial Waiver.

 

In most counties and cities in Washington, the pre-trial hearing is set approximately one month following the Arraignment. There can be one or many pre-trial hearings depending on the nature of the case and how negotiations are proceeding between the prosecutor and defense attorney.

 

What happens at a pre-trial?

 

During your pre-trial hearing, a case is either resolved, continued, set for motions, or set for trial. If you are pleading guilty, entering a diversion contract, or entering a deferred prosecution (or some other alternative resolution), you are “resolving” the case.

 

If your defense attorney is still working on your case by way of negotiation or gathering information, she will request a continuance and another pre-trial date will be set a month or so out.

 

If the prosecutor and defense attorney are in dispute as to whether certain evidence should be admitted or have some issue that requires a legal argument, the defense attorney will request a date to argue Motions.

 

If the prosecutor and defense attorney are no longer working toward an alternative resolution, dismissal, or other negotiation, the defense attorney will request a date be set for trial. Once that happens, the case is set for trial and the attorneys must be prepared to go to trial on that date. 

 

If you have a case in Kitsap County or surrounding cities and have yet to be Arraigned or are facing your first Pre-Trial, give our office a call to learn how we can help. 360-792-1000.

 

We frequently receive calls from potential new clients who want confirmation that their case is going to be dismissed. Obviously, everyone wants to beat a criminal charge and the stress or fear of potential jail time to go away. While immediate dismissals do happen in approximately 1% of cases, the reason is usually not what you think—and it is almost never due to failed Miranda warnings.

 

One of the most common assertions from a potential client is that the case is a “slam dunk” because the cop didn’t Mirandize the person. Unfortunately, we have to break it to many folks that it is far from a slam dunk. In fact, despite what people see on TV, not being mirandized can have zero impact on a case. The reason for this is timing.

 

So, when do Miranda warnings apply?

 

If an officer is in the process of investigating a crime, there is no reason for the Miranda warnings. Miranda only comes into play when a defendant is arrested.

 

What are the required warnings? First, you have the right to remain silent. Second, you have the right to consult with an attorney before or during questioning and to have one appointed if you can’t afford one. (You don’t have the right to an attorney at the time of arrest…just prior to being questioned.) Third, you have the right to have an attorney present during the questioning.

 

As noted, these rights come into play when the officer realizes an investigation has produced enough facts to meet probable cause and warrant an arrest of a specific person for the crime. If that person had been talking before enough facts have been gathered to support probable cause, the officer was not required to give Miranda warnings.

 

What is the remedy if the officer fails to read Miranda rights?

 

If the officer arrests you but does not ask you any questions and then fails to Mirandize you, that is also not reason for a dismissal. The remedy for failing to Mirandize or violating the Miranda rule is simply to suppress the statements made after the Miranda warnings should have been provided. So, if you said nothing after Miranda warnings should have been read, there is no remedy. The case proceeds as normal.

 

Additionally, if you were properly Mirandized but you were not clear that you wanted to consult with a lawyer, any statements made following the Miranda warnings will likely not be suppressed. For example, people often want to “hedge their bets” and see if they’re friendly to law enforcement and share some facts, it might convince the officer to release them. This is not a good strategy but one that many people use. The defendant continues talking after Miranda warnings were read and throws out statements like “maybe I should talk to a lawyer” or “how can this be happening when I wasn’t the one with the _____.” The defendant continues to talk and the officer will happily let you. S/he is not required to keep alerting you to your rights—once is enough.

 

How do you properly invoke Miranda rights?

 

To properly assert your rights, you must unequivocally state, “I want a lawyer before I say anything further.” YOU must be clear. It is not the burden of the officer to clarify. If you talk, they will write it down. And, even if you claimed “I want a lawyer” but kept talking to the officer, you have waived the right.

 

So, if you were not Mirandized, it might mean some statements are suppressed and it might also mean nothing for your case. Going forward, if you are ever arrested, realize that you must assert your interest in those rights by claiming you want to speak with a lawyer AND stop talking after you make that assertion.

 

 Everything in this blog is basic and simplified. There is a great deal of case law reviewing Miranda and how those rights are applied. There is no "one size" fit for Miranda so it is pointless to ask friends or do countless internet searches. If you think you have a Miranda issue, the only way to know your remedy or how will impact your case is to contact an experienced criminal defense attorney where you were charged with a crime who can review your discovery. Attorneys are licensed by each individual state and can only provide advise in the state where they are licensed. If you were charged with a misdemeanor in Kitsap County or one of the surrounding cities, please reach out to one of our attorneys if you have a Miranda concern.

 

This blog is written for those of you who did not know about Washington’s mandatory arrest rule and, now, very much regret calling law enforcement on your partner. Most likely, your life is a mess right now. Your partner’s life is pretty bad, too. Perhaps you have children and now just one of you is in charge of everything—kids, pets, school projects, paying the bills, fixing cars, and the list goes on. The other partner misses those kids, has to find alternative housing or live in their car, and likely has some pretty significant financial consequences due to that call to law enforcement. Life is really bad. But, guess what? If you are the person who was not arrested and you’re trying to coordinate everything via texts and third party messages, you are making a bad situation worse. In fact, you are going to make it much worse for your partner and yourself. So, stop. 

Why the increase in Assault charges?

 

We have had a record number of assault cases over the last two years. There is no doubt that a lockdown did not help otherwise happy couples get more bonded. It drove everyone crazy. We have had couples in happy 40+ year marriages to madly in love newlyweds—all caught up in dumb spats that resulted in an arrest. To understand why, you should read our blog on Washington’s mandatory arrest law but also know that just about anything in an argument can amount to an assault—including pouring a coke or glass of wine on someone’s head. Trust us, the prosecutor will charge you with a crime and one that impacts your livelihood, travel, family, gun rights, and so much more. So really take that to heart before you call the police to “settle the disagreement.” Community policing, where officers come to simmer down hot heads and ask if someone has another place to stay, does not exist anymore. So, really think about that before you call. 

Why the behavior of the alleged victim matters

 

Even if you do not believe you are “victim” in the situation where your partner or family member is arrested, law enforcement and the courts do. For this reason, the victim can cause additional problems for your partner or loved one if she attempts to communicate. The term “communicate” covers a very broad methods of communication and includes using others to convey messages.

 

Basically, the person accused of assault can not say or do anything that would purport to translate to a message to the alleged victim. Even using the “like” button on Facebook on the victim’s post is a communication. Asking others to tell the victim “I’m sorry” is a communication. But, the most common problem we see is that the victim wants to reach out to the defendant to make sure everything is okay after being arrested. The defendant cannot reply so the victim starts texting and calling more. Then, the victim has other people reach out. Eventually, the defendant responds just to allay the victim’s concerns. This will get the defendant in much worse trouble because he has now violated a court order.

 

So, if you care about the person who was arrested, do not attempt to reach this person until the No Contact Order has been rescinded! This may take months but you are only causing more stress and trouble if you force the defendant to respond to you through incessant texts, calls, or threats. 

This blog does not apply to those who face fear, control, violence, or physical harm

 

If you are in a violent, controlling, or dangerous relationship, you are the person the mandatory arrest law was written for and you need it. This blog is not about you. If you need help, that call to 911 is your lifeline and you should take it. You should also seek help from YWCA to get a safety plan so you know how to safely leave and have a place to go. 

For those who do not consider themselves a victim, you have no control to “drop charges”

 

As stated before, we are seeing a massive increase in assault charges and the scenarios are fairly similar—couples who have cohabitated for years or even decades without any trouble. They were simply ill-informed on what role law enforcement plays in resolving family disputes. And, unfortunately, by the time we are involved, the “victim” in our case hates the police and is furious that law enforcement took over absolute control of their life. The person called 911 without realizing that law enforcement has almost no discretion and someone is likely going to jail. So, understand the control is in your hands until you dial 911. Don’t do it casually. Don’t do spitefully. Don’t do it without the knowledge that you can not “unring” that call. The victim does not “drop charges” nor have control over the No Contact Order. You are in the system and it is a long road to travel for everyone—including the person labeled “victim.” 

The difference between a public defender and private attorney

 

For those with a public defender, you are probably looking at minimum of 4 months apart but probably more like 6 months of a No Contact Order (lots of time to potentially violate it and get charged with another more serious crime). The reason it takes longer is simply the time it takes to be assigned a PD, set the appointment with your lawyer, and actually speak with your lawyer regarding facts and strategy. Often, three months will pass and the defendant won’t even have a list of tasks from the lawyer that might help get the No Contact Order rescinded. That’s where those with a PD get derailed—you will be discussing plea offers or possibly going to trial for weeks or months, which will be quite tempting since you think it will “wrap up the case.” Unfortunately, the defendant completely misses the point that the No Contact Order will still be in place for months and the government still has control over your family’s lives.

 

So, if you have a family and want to return to them, you need a different strategy. You are not simply fighting the underlying charge but you have a major battle with the No Contact Order, which becomes the real risk to your well-being as well as your family. Therefore, Assault 4 with the domestic violence tag is one of those criminal charges where it is imperative you seek experienced private counsel.

 

A private defense lawyer can’t work magic and make it all go away instantly but those cases have very critical timelines that can impact how long you will be away from your partner and children. Private defense attorneys will have strategies that address all aspects of the case and, while the attorney cannot convey messages between the defendant and victim, she can usually explain the criminal process so the victim understands why the defendant cannot reply to phone calls or text messages. 

Be proactive and do the tasks assigned by your attorney

 

If you hire private counsel, you should have a “to do” list of tasks within the first week of representation. Make that list your number one priority. You will likely need a DV assessment and those agencies are booked months out. But, that No Contact Order won’t be lifted without it so get busy calling!

 

We had a client find an appointment within a week but it was 200 miles away. You do what you have to do! It was a terrible agency that assesses whether you are likely to re-offend and also provides treatment. Not surprisingly, the agencies with dual functions often recommend lots of costly treatment. Unfortunately, it’s one of the hoops you have to jump through. This is the reason we tell clients to get scheduled in multiple places and on cancelation lists—to get into an agency that has a good reputation at the first chance possible. 

The role the victim plays in the No Contact Order

 

Navigating assault charges where the defendant and victim do not agree with the police narrative, do not have a history of control or violence, have a long history of a healthy relationship, and have no interest in being separated, are going to have a tough time with this process. On occasion, the “victim” makes it much worse by repeatedly contacting the defendant because she needs help with the kids or cars. Do not do this.

 

You are playing with fire if you push the issue of communication during a No Contact Order. An additional criminal charge will make the process much longer, more costly, and create a greater likelihood that the two of you are not getting back together. So, while you may not have intended to have your partner arrested, you must respect the process and the court’s rulings. Do not tempt your partner into replying to your texts. Realize you are on your own for at least a month or more. Find help for the kids or the pets and sit tight while the attorney tries to put the No Contact Order behind you. 

Call a local defense attorney

 

Wherever you are located, get a local experienced defense attorney to help. The cost of hiring private counsel will be a savings compared to dragging out the cost of a No Contact Order on your family. Do not seek counsel outside your state or local area because it means nothing for your case. For example, the mandatory arrest rule in Washington State does not apply in other states. You must call a lawyer in your area to get proper counsel and you need to do that as early as possible in your case.

 

If you have a criminal defense matter in western Washington and would like representation, please contact our office at (360) 792-1000. We assist with criminal charges in Thurston, Pierce, Jefferson, and Kitsap counties. If we can’t help you, we may have a referral option for you. We do not handle any matters outside of Washington state and do not have referral options for out of state. If your issue is not in Washington, you should search for a criminal defense attorney in your geographical location.

As we watch juries around the country come up with varied verdicts relating to self-defense, we thought it would be a good time to give our two cents when it comes to the basics in Washington. As required, we must remind everyone that this blog is not legal advice and should not be used as advice when handling actual issues of conflict and self-defense. 

If self-defense is allowed under the law, why do juries convict people defending themselves?

 

One of the biggest reasons you see such varied verdicts when it comes to defendants claiming self-defense is that, while self-defense is spelled out in statute and case law, it is actually quite subjective in reality. More often than not, you will rarely find 12 jurors who will instantly agree that a defendant acted in self-defense. While the state has the burden to prove the elements of the crime charged, the defense attorney also has quite a significant burden to establish self-defense. And, even if the defense attorney meets this burden such that the burden shifts back to the prosecution to prove the absence of self-defense, it does not mean a jury will agree that the defendant truly met the burden. Juries just don’t always agree with the defendant’s version of events or who was the first aggressor. 

How do I know whether I can use force for self-defense?

 

Washington law allows for use of force in certain circumstances. The RCW 9A.16.020 provides the basic outline of when an individual is allowed use of force, which boils down to self-defense, defense of others, and defense of property. However, there must be an additional analysis as to the amount of force and whether it is reasonable given the circumstances. There are additional RCWs and case law that address both non-deadly force as well as deadly force.

 

While Washington law does not impose a duty to retreat, it is important to know that the person asserting self-defense cannot use more force than necessary. For example, if you are in an argument with your neighbor and he pulls apples from the tree in his yard and throws them across the fence in your direction, you may not pull out a gun and shoot the neighbor. You don’t have to retreat but turning a hose on the neighbor is a more appropriate “amount of force” in response to the apple throwing. Better yet, go inside and call the police so that your neighbor will be charged with assault and a no contact order will be put in place. That solves any further un-neighborly interactions. 

What if I think the neighbor is actually going to cause serious harm?

 

Again, this requires an analysis of your risk and whether there is an imminent threat of death or great bodily harm. If your neighbor came to your driveway with a baseball bat and smashed out your vehicle’s headlights, you should not go to the driveway and shoot the neighbor because that is not a reasonable amount of force. While a bat can be used as a deadly weapon and might justify deadly force in response, in the scenario where the bat is simply used to destroy minimal property, you would not be justified in shooting the neighbor based on the statute and case law regarding use of deadly force. However, if the neighbor then starts walking toward you and threatening “I’m going to do the same thing to your head,” it’s much more reasonable that your use of deadly force meets the standard of what a reasonably prudent person would find necessary in that circumstance. 

The costs of asserting self-defense

 

While it is better to be asserting self-defense in a criminal trial than be six feet under, if you are being prosecuted for your choice to defend yourself with deadly force, you will face many life-altering costs. The biggest problem is the “gray area” in analyzing self-defense and the uncertainty of juries.

 

To go to trial, you are likely looking at tens of thousands of dollars in legal fees. If you can’t afford bail, you may spend months in jail while you prepare for trial. Depending on your employment, you may lose your job while you wait for your day in court. Additionally, the emotional cost to your spouse and family are immeasurable and the stress of uncertainty is overwhelming. If you are lucky enough to prevail, you can seek reimbursement for legal costs but the damage to your life is truly irreparable. While you may have every “right” to defend yourself, that defense may come at a hefty price.

 

Honestly, it may be a safer choice to be a victim of property crime or potential minimal bodily harm, such as shoving or being punched, rather than face potential criminal charges for firing a weapon at an aggressor. Obviously, it is hard to know in every situation what risk you truly face but it’s important to keep a clear head if you think a situation is escalating to need for a weapon. Is there a way to avoid that confrontation or reduce your chance for serious bodily injury or death such that self-defense is unnecessary?

 

For example, if you notice that someone has entered your attached garage, you could call 911 and make sure your deadbolt to the home is secure. Rather than open the door to the garage and confront the person, you may want to wait for the intruder to initiate entry into your residential space. Clearly, waiting to avoid confrontation would appear to a jury that you met the “reasonably prudent person” standard—even if many of us would rather not wait for that possibility. Unfortunately, depending where you live, if you enter the garage to shoot the intruder, you may risk a criminal charge. While a legal analysis would suggest you are perfectly justified under the Castle Doctrine, in our experience, it does not prevent an overzealous prosecutor from charging you and creating absolute hell in your life. So, for those who own firearms, you must know precisely when you can use deadly force without risk of prosecution. 

Can I always use deadly force to defend myself inside my home?

 

In theory, yes. In reality, no. Regardless of the Castle Doctrine, every use of deadly force must be considered under the analysis of reasonableness and imminent threat of death or serious bodily injury. Deadly force may only be used in self-defense if the defendant reasonably believes he or she is threatened with death or great personal injury. State v. Walden, 131 Wn.2d 469 (1997).

 

For example, if you find an intruder in your home and you can see he is not armed and, upon seeing you, attempts to flee the home, you should not shoot the person in the back as he is leaving. Perhaps you were so scared that you didn’t realize the intruder was fleeing and thought he would grab a knife in the kitchen. Unfortunately, when the police arrive to find a deceased person with a bullet in his back, you better hope that your story meets the subjective and objective standard regarding self-defense.

 

Remember, to use a firearm in defense of yourself or in your home, make sure that you are facing “imminent peril of death or serious bodily harm.” There may be reasons that you subjectively believed those risks existed but you must make sure that it is also reasonable from an objective standpoint. This means that the jury doesn’t just consider what you thought was happening in that moment but what a reasonably prudent person would choose to do in the same circumstance. Those two standards do not always match and your reality may not be enough to successfully assert justifiable homicide as a defense. 

What if I am unsure where and when I can discharge my firearm due to a perceived threat?

 

If you are unsure when and where you can discharge a firearm in your defense, you need to really think about whether you should carry one. While it might make sense to keep it safely secured in your home for defense, which has more well-established case law in the homeowner’s favor, the “gray area” is significant when it comes to situations outside your “castle.” If you plan to carry a firearm on your person, do a deep dive into your obligations as a gun owner. When it comes to firearms, there is a lot of discussion regarding rights and less information regarding obligations for safe use. Do not put yourself in a situation where you are the defendant because you mistakenly discharged your gun in response to a threat. 

If the law is on my side, why should I be concerned about defending myself by use of force?

 

Obviously, the best option is to avoid conflict entirely so that you don’t find yourself justifying your reaction. It’s easy enough to blog about all the “rights” you have when it comes to self-defense but the truth is, if you have to spell that out to a jury, you are potentially facing serious risks to your freedom, your career, and devastation of your finances. If the prosecutor charged you with a crime, the state does not agree with your story. You have to wonder whether you can get 12 other people to see it your way. If you don’t like risk, being faced with trial as your only option will be life-altering regardless of the verdict. So, while there is no duty to retreat in Washington, it is certainly part of the equation if you are “selling” your story to a jury. Did you do everything you could to deescalate the situation? Do you seem the most reasonable? Do you seem like the first aggressor? All of these factors should be considered before you assume a right to use force—deadly or not. 

What if I carry a firearm because I am frequently in dangerous confrontations?

 

If you are frequently in confrontations or in relationships with volatile people, the common denominator is you. Thankfully, you can change your surroundings and your friends to avoid a lot of trouble. And, if you are a reactive person or someone prone to conflict, we can not emphasize enough that you will save yourself a lifetime of heartache by making the effort now to change your instinctive responses. Do not risk facing criminal charges and the need to convince a jury to see it your way. Even if the law is on your side, there are never any guarantees.

 

If you would like to know more about self-defense and law regarding use of deadly force, please return to this blog in the future. We are reaching out to other legal service providers and firearm safety experts to find information and possible free trainings offered. With such serious consequences at stake, be sure to keep informed.

 

If you need additional information, legal help, or a referral, please reach out to our office at (360) 792-1000.

For More Information On Self-Defense, Watch Our Video Below! 

 

Finding a lawyer can be very intimidating. First, you have a legal issue and that is, by itself, stressful. Second, it can take some research to know what area of law is best suited to your issue. Third, once you know the area of law that pertains to your case, you still have to find the person who can help. That can all be a lot of work! Hopefully, this blog can help you in that journey. 

How Do I Know What Area Of Law Pertains To My Issue?

 

Before you start calling around to random law offices, try to break down the primary issue in your case. For example, if you are frustrated about the amount of child support you receive, you can narrow that down to a divorce or family matter so it’s likely a family law attorney can help or point you in the right direction. Sometimes, it isn’t that easy.

 

You may need to narrow down a few critical facts about your case so you can start on your initial search. Suppose you have received notice that a Protection or Restraining Order has been filed against you and there is a court date set. Clearly, you may want to appear at that hearing and need legal representation to help. However, if you call our office for help, that would be a mistake. We don’t handle civil issues like protection or restraining orders. However, if you mention a No Contact Order, this is right up our alley. So, the precise words you use when calling can make a big difference as to whether the receptionist tells you to “keep calling around.” So, don’t use legal terms unless you know exactly what is involved in your matter. 

Why Do Legal Terms Matter So Much When I Call For Help

 

Legal words are terms of art that help lawyers and their staff decide quickly whether they can get off the phone and back to work. If you call and say, “I want a divorce,” my legal assistant knows to give you a good referral and get off the phone. Why? Well, first, she can’t give any legal advice and, second, we have nothing to offer as far as family law advice. We would be wasting your time and ours to sit on the phone.

 

So, when you use legal terms, be very careful you are either reading it directly from a legal document or know very clearly what that term means. Protection, Restraining, and No Contact Orders are perfect examples of misinformation that leads to getting the wrong referral or getting no help. You need to explain things like, “my neighbor is seeking a restraining order” (not domestic relationship) or “my ex-boyfriend is seeking a protection order” (domestic relationship) because if you said “after I pulled a gun on my spouse and the cops came, she is seeking a protection order,” you would be misrepresenting the facts and your issue. Since we do criminal defense, we would realize quickly that you are confused about what is heading your way—a criminal charge and a No Contact Order (although a Protection Order could be filed simultaneously in a civil matter such as in your family law case).

 

Just remember that facts and precise language really matter when you are trying to help the lawyer or staff determine if they can help. If you don’t know the exact terminology do your best to very simply describe the situation. Do not present your version of events. Stick to the facts. If you are fighting with your neighbor over property boundaries, don’t start with all the “trespassing” you think he is doing. That’s a lot like calling the bank because you have overdrawn your account but you start the conversation with a list of all the items you purchased that month that caused your overdraft. It is neither relevant nor helpful to anyone. You are likely to be put “on hold”…for eternity. 

What NOT To Do When You Call A Law Firm

 

1.  Don’t start with “I have a great case for you!” Sorry but that is the well-established sign in all law firms that you need to get off the call.


2.  Don’t be short or rude with staff. Use some basic phone etiquette. Surprisingly, people often start a call with “get me your lawyer on the phone!” If you are a normal human, you can imagine that does not go over very well. Also, arguing with the legal assistant about whether the firm can help (or even wants your case) is also not helpful. Be polite. Be patient. Law firms are stressful work environments and you are less likely to get help or a good referral if you add to the stress level.


3.  Don’t ramble. Know when to stop talking. If the lawyer says, “we don’t handle those types of cases,” accept it. Experienced lawyers are well aware of the areas of practice they want and what type of cases they want. However, lawyers aren’t always the best at telling you why they don’t want your case but it’s most likely because they are not the best fit and you should trust that. So, if you are lucky enough to be patched through to a lawyer (that is not likely), LISTEN. If the lawyer takes a call that does not pertain to her or his area of practice but wants to give a bit of advice, you should take notes. Don’t expect this but, if it happens, let the person shed some light on your issue or who is the best lawyer for your case.

4.  Don’t waste time trying to garner sympathy. There is nothing worse than a person looking for a divorce attorney or referral but spends 5 minutes telling you every awful thing about some guy you don’t know, won’t meet, and don’t care about. Remember, even if you are emotional and need to vent, you aren’t hiring a friend or counselor. You need to know if the person answering the phone call is the person who can solve a very specific legal problem. Going on and on about personal problems will not work in your favor.


5.  Don’t ask for advice outside of the lawyer’s expertise. If the lawyer says “I don’t know or I can’t help with that issue,” he or she can’t help. I wouldn’t ask my pediatrician to weigh in on whether I might need open heart surgery. It would be pointless to ask and probably dangerous for me to count on anything the pediatrician had to offer. If your tax attorney weighs in on your DUI case, I hope you like jail. While lawyers are supposed to know “generally” all areas of law, that means very little. So don’t call our firm and ask for tax advice or input on the federal tax code unless you’re looking forward to an audit. Experienced lawyers “stay in their lane.” (and jurisdiction!) FYI, lawyers can not talk about any legal issue in any state where they are not licensed.


6.  Don’t talk philosophy or theories. Often, before a person can ask whether the law firm handles their type of issue, he or she will get into how the legal issue is ruining their life or how the laws are unfairly imposed. Since law firms are stressful and run on deadlines, rambling on about the need for legal reform is not likely to be well received by staff. And, for the record, most courts and prosecutors really don’t care whether the case will bankrupt you, cause a divorce, and cause you to lose your job and be unable to pay for your children. If you want to have a chance to fight against all that you’re losing—whether it’s medical costs in an auto accident or loss of job and family in a criminal case—you need to focus on getting legal help and not legal reform. Stay focused in asking questions as to whether a certain firm or attorney is a good fit to represent you in your legal issue.


7.  Don’t talk about “how easy this case is” or that the lawyer should do it for free because a monkey could do it. I’m not sure how that is supposed to be convincing but you would be surprised how many people try this tactic. I’m waiting to see the monkey who can handle our cases and has such little overhead she can do it for free. If you can’t afford a lawyer, let the person answering the call know that right away because most receptionists or lawyers appreciate the honesty up front. If they know anyone who can take a pro bono case, you’re far more likely to get that referral from honesty rather than indicating the primate species could handle the issue. 

Be Patient In Finding The Right Person For The Job

 

Finally, don’t expect to find the right person for the job in one phone call. The practice of law is tough and competitive. It’s also very stressful. If the person on the other end seems a little frustrated or short with you, don’t take it too personally. It might be that you should just call back on another day (try calling a busy criminal defense firm on Mondays and you’ll know what I mean). Most likely, everyone in that firm takes pride in helping solve legal problems in their practice field. While it can be hard to connect, keep trying.

 

We would hate to be judged by our worst or busiest days, so we try to encourage others to have a little patience with other lawyers and firms. Try to remember that attorneys often deal with people at the worst point in their lives and are fielding lots of angry or stressful calls. Most of the day can be quite combative so it can take a few minutes for a legal assistant or lawyer to decompress and get into your issue. That’s why I encourage you to put your best foot forward and consider the list above when calling. Once you “connect” with a certain a lawyer or firm, the details of your life and frustrations about your unique scenario will eventually be discussed. Like any professional relationship, it can take time to develop and create a winning strategy.

 

If you have a criminal defense or personal injury issue in Kitsap, Pierce, Thurston, or Jefferson counties, feel free to give our office a call to see if we can help or offer you a solid referral for an experienced attorney in your area. 360-792-1000 (call or text).

 

 

Every day we get calls from potential clients who went down the wrong road. It wasn’t just the road they chose, it was that they wandered too long on the wrong road and we can’t get them back on track. 

What do I mean by the “wrong road”?

 

The wrong road can be using a public defender. It can be using non-local attorneys. It can be spending way too much money for a flashy firm but getting their intern as your lawyer. All of these scenarios lead you down a bad path. 

Aren’t all criminal defense attorneys the same?

 

Definitely, no! We don’t want to beat up on public defenders because they serve a valuable and critical function in the criminal justice system. However, they are overworked, carry large caseloads, and cannot possibly know the critical details of every case and every client. Simply, there aren’t enough hours in the day to know whether every client might qualify for alternative resolutions on their case. 

As far as non-local attorneys, this has become more problematic in recent years. The lawyers are competent in general criminal defense matters but they lack awareness of critical alternative resolution options in the local municipalities and counties. Essentially, they miss out on valuable opportunities for their clients. We had a call this morning in which a defendant should have qualified for Felony Diversion but the attorney had never heard of it. There is no going back since the defendant already plead.

 

Don’t make this mistake for too long. It’s okay to switch lawyers but it do it EARLY in your case!

 

Nearly every day, someone will call to explain that they read one of our blogs about Felony Diversion, Compromise of Misdemeanor, PACT program, or a Pre-Trial Diversion and many other therapeutic courts. Unfortunately, the person on the phone already plead to the crime and their attorney never heard of these alternatives. That’s hard to hear. Avoiding a felony on your record is life changing. If you don’t hire experienced local representation, you can really miss out on critical options for your case. 

If you stay with your public defender because you want to “wait and see” how it goes, that is probably how it goes. Once the public defender and prosecutor are at a standstill or trial has been set, it’s next to impossible to back that situation down and ask for an alternative resolution. So, don’t “wait and see” when it comes to your future. Criminal histories are permanent and have far-reaching impacts. 

What if I think I can’t afford it? How much should I expect to pay a criminal defense lawyer?

 

The cost depends primarily where you need representation. In Kitsap County, a DUI or misdemeanor charge should be $2500-$3500 dollars. Most of the best attorneys in our area have not raised fees in a decade. If you’re paying more than $3500 for a DUI in Kitsap or Pierce County, you’re paying too much (unless you have multiple charges or complicating factors). It’s really that simple. Some of the best attorneys we know in Tacoma charge $2500 for a DUI and they are far superior in terms of legal experience and knowledge to any of the big firm lawyers. 

If over paying is your thing, the next level for fees is usually around $5000-$7000 for a DUI, misdemeanor assault, assault 4- domestic violence, trespassing, lower level theft, or other misdemeanors and some gross misdemeanors. You might be quoted this fee if you are talking to a defense lawyer at a mid-size firm where the lawyer doesn’t have much negotiating room on fees because the partners determine what must be charged. These fees are not way out of the ballpark but you could find the same quality of representation for less. If time is of the essence and you click with the attorney, it might make sense to pay $5000 for a DUI even if you could get a great attorney for $3000. Sometimes, you need to find someone and get representation going quickly. 

On the extremely expensive side (basically, you’re wasting a lot of money), you could be quoted more than $7000 for a DUI in Pierce, Thurston, or Kitsap County. There a just a few firms that try that but, if you are panicked, you might be tempted to pay way too much for peace of mind. In that case, expect to pay somewhere between $7500-$10,000 for a basic misdemeanor charge, including a first time DUI. And, don’t expect to get anyone with decades of experience. These firms crank clients through due to advertising so you may end up with the newest hire—someone with a couple of years experience as a public defender or low level prosecutor. 

How do law firms justify charging so much for defense?

 

Law firms have a fair amount of overhead. There are so many insurances, labor, leases, expensive legal research software, accountants, and much more than keep a firm open. However, some firms take it to a crazy level of “glam.” These firms do a tremendous amount of radio or tv marketing, pay tens of thousands for fancy videos, and thousands more for billboards. If you hire them, you should expect to pay $7500-$10,000 for a simple DUI. You aren’t getting more and, in fact, most solo or small firms in Tacoma will have defense attorneys with far more experience. However, “commercializing” a law firm costs a lot of money and they expect to make a lot of money to pay for those ads and videos. You are the one covering that tab. Again, if you’re in a panic, perhaps you want to pay that exorbitant fee. If not, make at least a few calls in the area so you can get a realistic quote for your issue. Once you call around, you will find that there are quite a few remarkable, very experienced, and local attorneys who won’t gouge you for representation. 

Take the time to call around. It may keep you from wandering down the wrong road and avoid wasting money on your legal fees. And, if you think you can’t afford a lawyer, you may find out that you can’t afford not to hire private defense. There are many times when we help a person keep their job, get a case dismissed through alternatives, or keep a felony off their record when it seemed impossible. Often, it is hard to come up with legal fees but, if you’re looking at going to jail for a month and losing your job, it is worth finding the money for someone who can take the time to seek every alternative. Finding the best representation usually comes down to local knowledge, decades of experience, and a lower caseload to handle time-consuming cases. The reality is that it may cost something up front but well worth it in the end. 

Feel free to give our office a call with any questions. If we can’t help, we will try to find you a solid referral in the area. (360) 792-1000.