Jennifer Witt

Jennifer Witt

More and more people are receiving a Summons to Appear on criminal cases and it’s causing some confusion. Why is the Prosecutor waiting so long to decide whether I broke the law?

Why The Change?

 The landscape of criminal law has changed somewhat. Part of the change is the way in which law enforcement responds to alleged crimes. Lower priority crimes where there isn’t an imminent public safety concern, such as property crimes or trespassing, the officer might investigate the crime days or weeks later. In those cases, the person or people who are believed to have committed a crime will receive a Summons to Appear on the criminal charge weeks or months later. Where law enforcement deems there could be a threat to public safety or courts generally want to set some kind of conditions on behavior of an accused, law enforcement will arrest the person so these conditions can be set immediately. This happens more often in cases of Assault or DUI.

 

But I Received a Summons for a DUI

 While it is true that most DUI charges originate by way of arrest, booking, and appearing for Arraignment within a few days, that seems to be changing. Where the person alleged to have driven impaired is accused of using marijuana, the officer will draw blood for a THC reading and other substances. Those blood samples are sent to the state toxicology lab and the result is returned to the arresting agency. Currently, the results are returned almost a year after the arrest. This delay is the longest we’ve ever seen it.

 

For marijuana arrests (and other substances), the person accused of driving impaired might be arrested and released or no arrest may occur at the scene. The person might reasonably believe he or she has not committed a crime and follow up is unnecessary. This would be a bad assumption! If you or someone you know has been arrested for a crime or been in contact with law enforcement as a suspect, they MUST keep their address up to date with DOL. Realize that doesn’t mean the Summons will definitely reach you. It is still possible that a Warrant will be issued for your arrest.

 

I Gave DOL My Current Address But I Never Received The Summons

 This scenario is becoming a more common occurrence. The person who was arrested and released moves away (not yet formally charged with DUI) and is careful to update DOL with their new mailing address yet ends up with a warrant. Unfortunately, if the officer wrote down the address from your license, this might trump any DOL updates. To be honest, we aren’t certain about the many ways the address issue is arising. We have had clients call DOL 3 to 4 times a year to make sure their mailing address is accurate and the Summons will still be mailed to an old address.

Avoid The Warrant! 

One way to avoid getting a Warrant in the process of being charged through a Summons is to hire an attorney to monitor your case. At Witt Law Group, we contact the Prosecutor’s office weekly to check on our clients’ status. If they have been charged, we notify the client and file our Notice of Appearance on the case. A Notice of Appearance can’t be filed before the case is charged because there won’t be a case number. Once we have the case number, we can request discovery from the Prosecutor (all the evidence that the state is using to prosecute you) and begin working on your defenses. When our Notice is filed, we will also be notified of your upcoming court dates and immediately contact you so that you do not miss a date. When a person misses their initial court appearance, it is very bad for the case and a Warrant for your arrest will be issued.

Summons For Crimes In Kitap County

Finally, Kitsap County has been using Summons more frequently due in part to the increase of marijuana DUIs. However, it should be noted that we are seeing an overall increase on charging through Summons in all neighboring municipalities. Bremerton and Poulsbo are increasing this practice so be aware that, if you have had contact with law enforcement in these cities and were not arrested, you should seek a consultation regarding your risk for a future criminal charging through a Summons.

July 16, 2019

Bail

14 Billion Reasons Why We Need Bail Reform 

 Most Americans do not fully understand the pretrial portion of our justice system. While many know you are presumed innocent until proven guilty in a court of law, most don’t realize that hundreds of thousands of Americans sit in jail waiting to have their day in court. They are not sitting in jail because they have been convicted or plead guilty. They sit in jail because they are too poor to bail out.

 

According to the Pretrial Justice Institute, nearly 750,000 people are held in our nation’s jails daily. Two-thirds of these people have not been convicted of a crime. Taxpayers spend approximately 38 million per day and 14 BILLION annually to house citizens waiting for trial who are mostly low risk. Pretrial inmates account for 95% of jail growth from 2000 to 2014. (see Pretrial Justice Reports—Pretrial Justice: How much does it cost? & What pretrial system look like without money bail)

 

Why are so many Americans sitting in jail without a conviction?

 

According to a report on the Economic Well-Being of US Households by the Board of Governors of the Federal Reserve System, nearly half of Americans can not afford a $400 emergency. Posting the $5,000 bail for a DUI, whether by using cash or a private bail bondsmen, is simply not possible.

 

Consequently, poor and working class people are held in custody while they wait for trial. As a result, they have limited hours in which they can meet with their attorney (assuming their public defender will have the time to see them in jail) and they will pay the average $1 a minute charge to use the jail phone to reach their attorney and family members. For most, a jail stay of more than 3 days will cause catastrophic damage to their lives—losing jobs, falling behind in rent or mortgage, and negative family consequences due to stress. (see Reports from Pretrial Justice Institute) On the other hand, wealthier members of the community are able bail out, go back to work, be with family, and strategize with their attorney prior to making any significant decisions regarding their case.

 

Why do we keep people in jail if they haven’t been convicted?

 

In most cases, when a person is charged with a non-capital offense, the presumption is that the accused can be released on their personal recognizance during the pretrial phase. Typically, the judge will set pretrial conditions of release only where it is the interest of securing the defendant’s appearance in court, protect the community from violent crime, and prevent any obstruction of justice. These conditions do not violate the Fourth Amendment so long as they are legitimately related to the objectives of securing a defendant’s presence and public safety. In Washington, criminal Rule 3.2 and Criminal Rule for Courts of Limited Jurisdiction 3.2 govern pretrial release conditions.

 

The challenge we see in Kitsap County is that the defendant who was never able to post the bail that was automatically set at arrest by a bail schedule (i.e. $5000 for a DUI), has frequently served the jail time required for the crime charged. This means, they can just plead guilty, be released, and deal with the resulting fines, fees, and any administrative consequences or punishments. Unfortunately, that plea of guilty may have been a mistake considering the State’s evidence or because, without a negotiated plea by an experienced defense attorney, the conviction will cause significant collateral damage for the defendant—such as immigration consequences, job loss, loss of housing, discharge from the military, or even loss of federal student loans.

 

Is a “bail schedule” allowed under the law?

 

Yes. So far, there are many counties and municipalities using “schedules” that essentially list a crime and set a standard bail amount without any independent review of whether the accused is likely to appear for court or is a risk to the community. At the first appearance or arraignment, the defendant will be permitted to argue that bail is unnecessary to secure his presence to the next hearing. This is acceptable if the judge does an independent assessment of the defendant’s unique circumstances when reviewing the interests of 1) securing the defendant’s appearance at the next hearing or trial, and 2) public safety. Unfortunately, there are some situations where the predetermined bail schedule is de facto part of the conditions of pretrial release. Under the law, this is not allowed. Furthermore, practically speaking, when a bail schedule is set unreasonably high for a misdemeanor defendant who is poor, there is almost no chance that he will be able to bail out before the initial hearing to consult with an attorney, gather evidence, or provide information from witnesses.

 

How Does Kitsap Measure Up?

 

Despite having no criminal history, no failure to appear for court dates, or risk to the community, it is very likely that a person arrested in Kitsap County for DUI will have bail set at a minimum of $5,000. If you were arrested Friday night and don’t have the money for bail, you will sit in jail until Monday’s Arraignment calendar. Unless you have criminal history or there are unusual facts, it is highly possible that you’ve served all of the jail time required for your alleged crime. As noted above, this creates big incentive for poor people to simply plead guilty so they can get out of jail. Knowing that bail, in some amount, will remain as a pretrial release condition, a poor defendant often finds pleading guilty and going home more favorable than sitting in jail for weeks or months until the trial date. The person has a conviction now, but they also have their freedom. It’s a tough predicament.

 

While it is true that this can happen in other counties, some of the largest in Washington have already made great reform and no longer use bail schedules. King County, Spokane County, and Yakima County have made great strides at reform, which has saved taxpayers a significant amount of money in pretrial incarceration costs. These counties use evidence-based assessment protocols on an individual basis to determine whether a person is a flight risk (i.e. won’t show up for court) and/or is a risk to the community. According to Pretrial Justice Institute, only 3.4 percent of citizens in Washington live in a county using a validated pretrial assessment, giving our state a C overall on the report card (factors such as pretrial detention rate, elimination of money bail, as well as other measurements are considered in grade report).

 

We are hopeful that Kitsap County will eventually move in the direction of reform. For now, we are unaware of any changes to the current system but, with larger counties already making changes and seeing the benefit of securing presence in the courtroom, safety in the community, and significant savings to taxpayers, it is possible Kitsap County could be next.

 

Variations In Surrounding Municipalities

 

Why the difference in setting bail for nearby cities? Well, as the saying goes, follow the money. Local municipalities must pay a fee to the county jail when a police officer from Poulsbo or Bremerton book a suspect into the jail. Think of it as a hotel charge. The law enforcement officer is taking care of business in the city limits but using the “hotel” belonging to the county. This fee comes out of the city’s overall budget. Therefore, the “culture” understood by law enforcement is to use the city budget for post-conviction incarceration rather than pretrial holding of a suspect. This is the reason many people in Poulsbo will be “cited” and released. Basically, they are given a summons to appear in court on a set date. For those facing a Poulsbo criminal charge, this will generally be the next available Wednesday. There are exceptions to this booking/bail “culture” for people who have a history of failing to appear for court, are a flight risk, or are a danger to the community, but those cases tend to be the exception.

 

If you are arrested in Bremerton, you will fall somewhere in between the booking rate of the County and Poulsbo. The Bremerton Police will fairly regularly book a suspect into the jail with the “bail schedule” but not as frequently as occurs in surrounding Kitsap County.

 

Around The State

 

As noted above, larger counties around the state have moved away from having bail schedules. They are using evidence-based assessments to evaluate, on an individual basis, whether a person is a flight risk and/or a risk to the community. For example, Yakima County is using the PSA (Arnold Foundation Public Safety Assessment), Spokane County Superior Court is using SAFER (Spokane Assessment for Evaluation of Risk) and Whatcom and Thurston Counties are using ASRA (Adult Static Risk Assessment). Overall, only 10.3% of Washingtonians live where they would be covered by a pretrial risk assessment protocol.

 

According to the Washington Pretrial Reform Task Force Report, more than half of inmates in Washington’s jails are full of people being held pretrial, meaning they have not been convicted of a crime. In King County, despite reform efforts, it is still over 70%. Clearly, this is a problem for those in the defense bar who feel this is a violation of rights but also for the cost to taxpayers. In almost all cases, the taxpayers are paying the "hotel bill" to hold all of these low risk inmates. The Task Force recommended all jurisdictions create a pretrial risk assessment tool. This means, “an actuarial tool that uses data to determine the likelihood that a defendant will fail to appear or commit a criminal offense while on pretrial release.”

 

pdfTASK FORCE REPORT

 

Around The Country

Despite tremendous interest in bail reform, bail schedules have yet to be ruled unconstitutional. While the practical impact of their use often leads to violations of the Equal Protection Clause and Due Process violations, they are still in use in most states. Unfortunately, the Supreme Court has yet to rule on bail schedules.

 

One relevant federal rulings on this issue is O’Donnell v. Harris County, 892 F.3d 147 (5th Cir. 2018), in which the Fifth Circuit reviewed how predetermined bail amounts for arrestees were adhered to in nearly 90% of first appearance determinations regarding pretrial release conditions. The Court did a very exhaustive examination of how the bail schedule actually operated, where the policies and procedures created a disparate impact for indigent defendants and also lacked any meaningful alternative considerations. The ruling tightened the lower court’s ruling directing Harris County to make immediate changes to the bail system for misdemeanor arrestees but, in a nutshell, agreeing that the bail practices by Harris County were in violation of the Equal Protection Clause and violate Due Process. It’s a long read but quite informative.

 

One interesting excerpt from the 193 page District Court’s ruling in O’Donnell, was the review of similar challenges in various states. These challenges have produced significant responses from a wide range of legal authorities in the form of amicus briefs, including the American Bar Association and the US Department of Justice. Below is a portion from O’Donnell, describing the ABA’s contribution to Walker v. City of Calhoun, a case arising in Georgia that was heard by the 11th Circuit.

 

“The American Bar Association’s amicus brief in Walker argued that “[m]onetary conditions of release should never be drawn from an inflexible schedule, should be imposed only after consideration of the defendant’s individual circumstances, and should never prevent the defendant’s release solely because the defendant is unable to pay.” Pls. Ex. 12(ff) at 12. The Third Edition of the ABA Standards for Criminal Justice, Pretrial Release (3d ed. 2007), recommend “procedures designed to promote the release of defendants on their own recognizance or, when necessary, unsecured bond.” Standard 10-1.4(a). Jurisdictions should impose financial conditions only “when no other conditions will ensure appearance,” and financial conditions “should not be employed to respond to concerns for public safety.” Standard 10-1.(4c)–(d). The Standards also emphasize that “[t]he judicial officer should not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant’s inability to pay.” Standard 10-1.4(e).

 

The American Bar Association’s brief emphasizes that “[u]nwarranted pretrial detention infringes on defendants’ constitutional rights, ‘making it difficult for the defendant to consult with counsel, locate witnesses, and gather evidence’ and placing a particularly heavy burden on ‘poor defendants and on racial and cultural minorities.’” Pls. Ex. 12(ff) at 14 (quoting Standards at 32–33). The commentary to the Standards states that “[i]f the court finds that unsecured bond is not sufficient, it may require the defendant to post bail; however, the bail amount must be within the reach of the defendant and should not be at an amount greater than necessary to assure the defendant’s appearance in court.” Id. (quoting with emphasis Standards at 43–44). The brief concludes that detaining a defendant solely for failure to pay a secured financial condition of release is unwarranted and unconstitutional. Id.”

 

pdfCato Institute’s summary of O’Donnell

 

pdfO’Donnell District Court ruling

 

O’Donnell 5th Circuit Ruling

 

pdfStandford Law Review—Punishing Poverty

 

Why unnecessary use of bail matters?

 

As the Pretrial Justice Institute and the Washington Pretrial Reform Task Force noted, there are disparities in legal outcomes for those unable to post a bond or bail. Individuals who were detained prior to trial were four times more likely to receive a sentence of imprisonment and three times more likely to be given a longer prison sentence. Lowencamp, C., VanNostrand, M., A.M. (November 2013) Investigating the Impact of Pretrial Detention on Sentencing Outcomes. Being poor is not a crime and, therefore, justice should not serve the poor any differently. The disparate outcomes are not acceptable in our justice system.

If you or a loved one has been arrested and need help finding a local bail bondsmen, give us a call so we can help.

 

We have always enjoyed providing legal services in Kitsap County because it offers such a diverse group of people and legal challenges. In such a small geographical area, we have city, county, and federal laws pertaining to crimes such DUI, marijuana possession, trespassing, theft as well as many other criminal charges.

We Help Our Military

With Bangor, Naval Base Kitsap, and the PSNS, we find ourselves also helping many military members. The penalties and consequences for a crime, such as DUI, can mean very different things to a person in the military. Often, security clearances are the most immediate impact for military service members but jail time and losing the ability to drive without an ignition interlock is also very challenging. Additionally, you might find yourself facing "extra" punishments from your Commanding Officer. The lawyers at Witt Law Group can help facilitate communication between you and your Command regarding the Kitsap County criminal charge so that you can manage the consequences and move forward with a plan for success.

We Are Kitsap County Lawyers

As a local law firm, we care deeply about those in our community and trying to minimize the devastating consequences of a criminal charge. It is important to be able to learn from mistakes and then move on to being a productive member of our community. If you are arrested and charged with a crime or receive a summons to appear for a crime, it is important to seek the counsel of a criminal defense attorney. Local is better. Experience matters. Don't delay and think your problems will fade.

We Can Help You

In Kitsap County, early intervention with a lawyer can make a meaningful difference in the outcome of your case. You have nothing to lose with a free consultation and we have offices in Bremerton, Gig Harbor, and Poulsbo. Let us know how we can help.

When you find yourself charged with a crime, it is normal to go through a state of shock. After all, if you’re like 90% of our clients, you’ve never been in trouble before. Nearly half of our criminal defense clients have never even had a speeding ticket. An arrest and possible jail time is an unthinkable situation for most people.

In response to this state of shock, we often hear about every wonderful thing our clients have done in their lives. They are not “criminals” and this can’t really be happening. This is a tough spot for defense attorneys. We see this phase so often that we want to blow right past it and move to important things—relevancy and admissibility. It can seem that we don’t care. We do! However, our job is to care by doing what is best for you. This means getting to the facts of the case, the elements of the crime, and what we will use to negotiate a resolution in your favor.

The Interview

When interviewing a client, defense attorney are concerned with two basic rules in criminal procedure: 1) is the information provided by my client actually relevant, and 2) if it is, will it be helpful with negotiating a pretrial resolution or, if the case goes to trail, will it be admissible in court. This means, when a DUI client tells us that the car isn’t registered to her, that is not relevant. Vehicle registration is not an element of the crime of DUI. And, if you tell us that you can’t go to jail because you are a single parent, that is not relevant to the elements of your crime. We are listening for things such as, “I was drugged and therefore I was involuntarily intoxicated” because voluntary intoxication is relevant to the elements of the charge of DUI.

To understand why we get so focused on relevancy and admissibility, you need to understand how crimes are charged and how a prosecutor’s office works. When you are arrested for a crime, the officer has some discretion whether to arrest you and what he will write as the crime you committed. He just needs to believe there is probable cause (a fairly low standard as compared to beyond a reasonable doubt in a criminal trial) to believe you committed that crime. When the prosecutor receives the police report and reviews it for probable cause, she can 1) agree with the officer and charge you with the same crime as listed, 2) find there was no probable cause and release you, 3) find additional crimes were committed and add to your charges, or 4) find the facts warrant a higher level of charging such as a felony level crime rather than a misdemeanor. This means the criminal charge is never really “set” until a prosecutor sees the reports. This also means your defense attorney never really knows how good or bad your case is until the reports are provided.

Are There Bad Facts?

When discovery is provided to us, we also look for other “bad facts” that might hinder the strength of your case. These are not necessarily facts that relate to relevancy and admissibility but have more to do with how you interacted with law enforcement. Most prosecutors have drawn a much tougher line when it comes to misconduct or foul language with law enforcement. If you were calling the officer a “pig” or said “my attorney will get me out of this,” the prosecutor will be less likely to see you as a person who is genuinely remorseful. So, while the defendant before you with an identical DUI scenario received a Pretrial Diversion Agreement, you might not be offered the same deal if you called the officer names during your arrest. If drugs or alcohol was involved in your arrest, you might not remember doing something so out of character. Unfortunately, law enforcement never forgets to write these facts down and they are serious factors for us as we determine how to negotiate a case.

When you meet with your attorney, please realize that information is being “processed” as you’re talking. If the initial meeting seems a bit like an interrogation, that is usually because we’re trying to find relevant facts to know before heading into your first appearance or arraignment. No defense attorney wants to be blind-sided. We also need to know if you have criminal history. Nothing looks worse to a prosecutor than a defense attorney who claims the client has no criminal history but is then surprised by the secret out of state DUI or theft charge. The defense attorney instantly loses all credibility (and negotiation strength) if inaccurate or false statements are made. Your attorney should know the good facts but it is absolutely critical that he know the bad facts, too!

Have Patience

As the case progresses, the reality of how a prosecutor’s office runs becomes even more important to understand. It is NOTHING like you see on television. There are hundreds of cases assigned to a prosecutor and she is juggling far more than a private defense attorney. In most counties, prosecutors are on triage mode. This means, if she doesn’t have your case set for trial next week, it is not relevant to her work load this week. Negotiations happen at the leisure of the prosecutors and they have very little time to talk, email, or negotiate. There will be some discussion with the prosecutor in court but, typically, that will be under 5 minutes due to dozens of other cases set for the same time. Most negotiation happens via email. Your attorney begins “the attack” against the elements of the crime and whether the prosecutor can convict you of the crime charged. The prosecutor might respond quickly or, if in trial or busy, respond a week later. This stage is all about relevancy and admissibility. Unfortunately for clients, this stage takes time.

When this phase becomes drawn out, clients often get quite frustrated. It seems unthinkable that you would have court on Wednesday but the prosecutor won’t respond to your defense attorney’s emails until Tuesday (or the morning of court on Wednesday). This is just the reality of criminal defense. It is stressful and there is nothing we can do about it. Whether you need to arrange child care, take time off of work, or handle a family emergency are all irrelevant to the prosecutor. They don’t care if you’re in limbo. They don’t care if you will lose your job or business. They don’t care if you’re a single parent. The response is the same—don’t get into trouble if you have that much riding on you. In the criminal justice system, the only facts the prosecutor wants to hear are those that are relevant to the crime charged. It is a rough reality that we try to prepare our clients to understand.

Seek Wisdom Over Wives' Tales

For this reason, if you have trouble managing the uncertainty and the stress of being in limbo, it is important to find a counselor or friend who can help you manage that anxiety. We suggest you don’t include people who focus too much on “this is an outrage” or “my friend blew a .18 and he never went to jail.” The advice from this type of friend tends to be counterproductive for your case. Rarely, does the friend understand admissibility of evidence and how that played into the outcome of another person’s case (i.e. perhaps their other friend was pulled over on a pretextual stop and evidence was excluded as a result of the motion). If a great resolution is reached for your case, the “outraged” friend can keep you from making a good decision moving forward. Let your friends help with stress but let your experienced criminal defense attorney (who has prosecuted and defended a 1000+ criminal charges) give you legal advice.

We understand that it feels unfair to be just a case number. We try to soften that reality the best we can. Everyone in our office knows that clients are stressed and facing life-changing consequences as a result of a criminal charge. We definitely get it! However, it is our job to provide the best defense for you and negotiate the best outcome for your future—which may not include sharing your personal story. In fact, most of the time, we don’t want to get to the “share your hardship” phase. If you’re sharing your story, it is probably because you’re in court for sentencing, which means you were convicted at trial. That is not the outcome we want for you.

This long and overwhelming process is handled better with a support system. As a result, we strongly encourage proactive self-care and looking for ways to manage stress. We understand that you are scared and want the prosecutor to hear about everything you stand to lose. After all, that is typically all our clients can think about. We simply can’t do that and the prosecutor won’t have it. Please understand that it has nothing to do with a lack of compassion. In truth, we do care and our passion is finding fair resolutions. Caring for our clients means we will always stay focused on what will actually help you. We are in your corner and we will use everything that is relevant and helpful for your defense.

When you come to our office, we will provide you with an intake form that we will use for contact information and other relevant data regarding your case. The following checklist should provide some guidance regarding information and documents that you might need to complete the intake form.

 

¤   Any correspondence (letters, emails, phone calls) from insurance adjusters. This includes correspondence from your insurance and from the at-fault party. 

¤   Your insurance documents, including the “declaration page” of your policy. 

¤   If you have more than one policy, please bring documents regarding all of the policies.

¤   Police report and/or any documents given to you by first responders. If you do not have a police report, we can collect this at a later time (assuming a report was filed).

¤   A list of all passengers in the vehicle and include contact information.

¤   A list of witnesses to the accident. Again, please provide any contact information you have for these individuals.

¤   Pictures of the damage to your vehicle.

¤   Pictures of the accident scene.

¤   Pictures of your injuries.

¤   If you were injured in a bicycle or pedestrian accident, please bring damaged equipment (helmet, bike, etc.) and damaged clothing.

¤   Any video, audio, or newspaper articles regarding the accident.

¤   Documents regarding all medical policies.

¤   A list of any treatment providers you have seen since the date of the accident. Please provide location or contact information.

¤   If you are missing work, please indicate whether your doctor has provided time loss statements.

¤  If any medical bills have been sent to collections, please bring any correspondence regarding those bills.

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

How Personal Injury Settlements Have Changed

 

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

What We Can Do About It

 

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

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

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

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

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

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

Set Realistic Expectations

 

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

Get Educated

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

1.  If Incustody, The State Has All The Power

When a person sits in-custody, the State Attorney has all the power. If a person was arrested on a Friday and sits in-custody all weekend, by Monday’s Arraignment, they have most likely served their sentence. The person is faced with the option to plead guilty and get out of jail or, continue the case, and potentially remain in custody. Basically, if a person is in custody but can be immediately set free by pleading to the charge, the State can leverage them into pleading guilty. While in jail, people think about their jobs, family, pets and shame. It often leads them to the conclusion that they should plead guilty at the earliest opportunity so that they can return to their responsibilities. Young people will often plead guilty to get out of jail quickly and hide the matter from their parents.

 2. If Incustody, Your Representation Is A Gamble 

An in-custody defendant does not get the attorney of their choice. If a person is in-custody, the Court automatically appoints them an attorney. They may get a terrific public defender or they may get a public defender who is too busy to be much help. Either way, the in-custody defendant does not get to choose who represents them at Arraignment.

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

Deals that are often available to out-of-custody defendants are not typically presented to those who are in-custody. This is due, in part, to the fact that the prosecuting attorneys know they have leverage over the in-custody defendant. If the prosecutor plays it right, they can usually squeeze a guilty plea out of someone whose case, if out of custody, would be resolved in a more lenient way. Anyone who has worked in a prosecutor’s office knows that statistics are critical. The more guilty pleas, the better the statistics for the office. Clearly, it is easier to improve those stats by forcing pleas out of in-custody defendants.

Don't Be A Stastic!

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

 

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

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

 

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

 

Hypothetical #1

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

 

Hypothetical #2

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

 

Hypothetical #3

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

 

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

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

 

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

 What you will need:

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

 

1) Your driving abstract

2) Your criminal history

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

4) Your criminal complaint

Give your attorney enough notice to collect the items

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

 

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

Assessments for minors:

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

 

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

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