Will I Get Criminally Charged?

If you had contact with law enforcement but were not arrested or told reports will be forwarded to a prosecutor, you may have some waiting to do. We have seen police reports lead to prosecutor charging within hours and up to 23 months and 29 days (right before the statute of limitations would run).

What Are Some Reasons The Prosecutor Would Not Charge A Case?

There are many reasons that prosecutors do not charge a case after receiving reports for an investigating officer. First, the prosecutor may simply be waiting for additional reports because the current reports don’t meet the elements of a crime. Second, there is standard delay. For example, on many property crimes, the reports get reviewed at a slower pace. Issues of safety are supposed to take priority. However, while DUI is considered a community safety issue, many offices will charge those cases months later. This is particularly true if a blood draw was required. Third, there needs to be further follow up or there are uncooperative witnesses. 

Elements Of A Crime

The most obvious reason is that there are not sufficient facts that meet the elements of a crime. We often analogize elements of a crime to ingredients in a recipe. You might have eggs, sugar, and oil but if you are out of flour, you won’t be making a cake. The same is true for crimes. 

If an arresting officer provides a report that you smelled of alcohol, failed field sobriety tests, blew a .15 at the roadside but then mentions there were four of you standing outside of your stopped car on the side of the road when the officer approached, there will an issue placing you behind the wheel. 

Linking the actual driver is an element of the crime and the prosecutor may have an evidentiary challenge on her hands. It doesn’t mean the prosecutor cannot charge the case and try to use witnesses or 911 calls to identify the driver. However, there is no doubt that there are legal challenges that will arise.

Blood Draw Delay & Charging Parties

As we have mentioned in past blog posts, cases that involve blood draws will typically be delayed in charging by 6 to 18 months. Recently, we had one charged at 22 months post-arrest. Most of this delay is due to the backlog at the toxicology lab but there can also be delays once reports are returned to the prosecutor’s office. 

Additionally, depending on the office, it can be the protocol to “hold” dozens or even hundreds of reports and then do one big “charging party.” This is where the deputy prosecutors all sit around and divvy up the law enforcement reports that have come in over the past few months (or longer) and review the reports for the proper crime to charge. This is something that is more likely to happen at the district court level (misdemeanors) since there are rarely delays in charging for serious felony cases. However, it has happened that a case is reviewed in district court and, based on report or updated reports, the prosecutor decides to move the case up to superior court and charge as a felony. 

Once the prosecutor’s office has made the charging decision, the court clerk’s office will be notified and a Summons will be mailed to the defendant’s last known address. This is why we always tell people to make sure your mailing address is up to date with Department of Licensing or you hire a firm to monitor the charging of the case. If you do not receive the Summons and miss court, the court will issue a Warrant for your arrest.

Witness Issues

Challenges with witnesses is rarely a cause for a delay in charging but it can happen. Occasionally, law enforcement will need to do supplemental reports and find additional witnesses but, for the most part, if a report is forwarded by an officer, this means the officer believes there are facts sufficient for the prosecutor to consider filing criminal charges. 

Sometimes, there will be criminal history challenges with the alleged victim or witnesses and this can be reason for further follow up. If an alleged victim or witness to a crime is known to make false statements or harass certain people, the prosecutor may need to take time to review whether there are other reliable witnesses. This does not mean the prosecutor won’t charge the case. It just means the state wants to have a stronger case before charging so that the defense attorney can’t immediate poke holes in the reliability and veracity of the statements in law enforcement reports.

Low Staffing

One might think there is no shortage of prosecutors to charge cases but that assumption is incorrect. Entry level prosecutors (and public defenders, for that matter) are hard to keep. Between burnout and moving onto better opportunities, deputy prosecutors at the district court level tend to be fairly transient. For that reason, counties and cities are always trying to fill DPA spots.

Typically, there are enough prosecutors to rotate positions and fill in when there is a need for help that there should not be too much of a backlog. However, sometimes, things are so tight that those charging parties mentioned above get delayed for many many months. This happened in Kitsap County. In 2023-2024, there were roughly 800 cases that were waiting to be reviewed for charging. The county simply had too few DPAs to handle the charging and potential case management. Recently, Kitsap hired four new district court DPAs so we anticipate old reports will be reviewed soon! If you were arrested and released within the last 23 months, be very vigilant in checking your mailbox for a Summons.

If you had contact with law enforcement during an investigation or were arrested and then released, feel free to reach out to our attorneys for help. Depending on where the investigation or arrest took place (Thurston, Kitsap, or Clark counties or the cities in those areas) we should be able to shine some light on whether you’re “in the clear” as far as charging and whether the statute of limitations has run. 

Be careful not to confuse a temporary dismissal of your case as a full dismissal of the charge.

If you are facing a DUI / DWI charge or other misdemeanor criminal charge in western Washington, give our office a call. We are here 7 days a week so give us a call! (360) 792-1000