Displaying items by tag: Criminal Defense

 

Effective June 11th, a new re-sentencing option was enacted through Senate Bill 6164. This bill allows for a Prosecutor to petition the sentencing court to ask for a lesser sentence.

 

Important facts to know before the petition can be made.

 

1.  Under the Bill, the Prosecutor can petition for a reduction if, “the person’s sentence no longer advances interests of justice. The purpose of sentencing is to advance public safety through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense and provide uniformity with the sentences of offenders committing the same offense under similar circumstances.”


2.  The review applies to sentencing on a felony offense.


3.  The Prosecutor shall make reasonable efforts to notify victims and survivors of victims of the petition for resentencing and the date of the hearing.


4.  The sentencing Court has discretion. This means the Court may deny the request and not hear the Prosecutor’s petition.

 

According the Bill, there are certain relevant post-conviction factors that the Court will consider.

 

1.  The inmate’s disciplinary record and record of rehabilitation will be reviewed.


2.  The Prosecutor can provide evidence that the inmate’s age, time served, and diminished physical condition have reduced the inmate’s risk for future violence.


3.  The Prosecutor can provide evidence that reflects “changed circumstances” since original sentencing that substantiates the fact that the current sentence no longer serves the interest of justice.

 

Clearly, the key to this petition is having a willing and available department at your local prosecutor’s office to handle such matters. In King County, the Prosecutor has released this statement on their website:

 

“We, at the King County Prosecuting Attorney’s Office (KCPAO) are excited at the enactment of this law and to announce the creation of a new unit, the Sentence Review Unit, to manage this work in our office. This new law allows us to continue and strengthen our existing criminal justice reform efforts. For the past thirteen years, the KCPAO has reviewed old cases with an emphasis on “Three Strikes” cases where a person was sentenced to life for committing a robbery in the 2nd degree. The purpose of the review of old cases is to determine if the sentence is consistent with current principles of justice. For example, 2nd degree robbery is no longer counted as a strike under Washington law.”

 

When we learn how Pierce or Kitsap Counties are proceeding with these petitions, we will update our website. If you have any additional questions, contact our office at 360.792.1000.

Published in Witt Law Group Blog

In our office, we field this question on a weekly basis. “If there was no violence, why am I charged with domestic violence.” For a hypothetical, assume these facts:


A guy is living as a temporary roommate with some guy friends. One day, their Nintendo goes missing. The other roommates do some investigation and believe the bad actor is the new guy. After they assemble their evidence, they call the police. After the police are involved, the prosecutor’s office charges the roommate with “Theft 3 – Domestic Violence.”


As you are reading this, most people will have the same question, “we understand the Theft Charge, but why D.V.?”


Special Allegation

 

First of all, Domestic Violence is not a charge. It is what is called a “Special Allegation” that is attached to an underlying charge. Anything can have a DV Special Allegation. If a person siphons gas out of an ex-girlfriend’s car, it would be Theft – DV. If a daughter spray paints her parent’s fence, it would be Malicious Mischief – DV. The DV Tag can be attached to nearly any underlying charge.


Why Can Every Charge Be D.V.?

 

The reason nearly every charge can have a DV tag is based upon a statute. Revised Code Of Washington (or RCW) 10.99.020 contains the definition of Domestic Violence. This is an excerpt from a charging document from Kitsap County.

 

DV Tag Cropped

 As you see, the definition captures nearly all relationship where people know each other. Here are some examples of how distant a relationship can be, yet they State can still add the special allegation.


“Adult persons … previously residing together.” Think of all the people who were your roommates in college.


“Persons sixteen years of age or older … with whom [they] had a dating relationship” Should it be DV if you dated someone when you were 17 and you are now in your 40’s?

 

Ramifications

 

The ramifications of this Special Allegation are enormous.


•  The No Contact Orders are more restrictive and have more teeth if you were to violate an Order.


•  Domestic Violence treatment could be suggested by the Prosecuting Attorney.


•  Courts will typically require a firearms prohibition.


•  The Special Allegation also drastically cuts into the options that are available to resolve your case.

 

Can You Challenge The D.V. Tag?

 

Yes, in certain circumstance you can challenge the Prosecutor’s addition of the Special Allegation. As listed above, there are many beneficial reasons to do so. While the definition above is broad, Prosecutors misapply the definition from time to time and the Courts will strike down the Special Allegation.

Published in Witt Law Group Blog

One of the most important considerations right now is how coronavirus is impacting criminal
charges. We wrote a past blog about how dates are being impacted but it’s important to also
understand how this unique time might improve the results of your case.


Get A “To Do” List From Your Attorney


First, use your “free time” wisely. If you have been charged with a DUI or another alcohol-related
offense, there are productive things you can do while you are waiting for your next court date.
We ask our clients to have a drug and alcohol assessment done as well as a victims’ impact
panel. Believe or not, there are agencies who are still making it happen! These appointments
are not easy to schedule during normal times so you will really have a leg up getting that done.


Get Ahead Of The Criminal Charge


Second, even if you haven’t been charged with a crime yet, call our office. We can talk to the
Prosecutor’s Office and challenge the investigation. If there are serious legal challenges to the
potential charge, we may be able to convince the Prosecutor to decline filing the charges.


Exculpatory Evidence


Third, since you are not in-custody, you can assist your attorney with investigating your case
early to ensure potential exculpatory evidence is not destroyed. For example, you can help us
understand the scene of where or how you had contact with law enforcement. We may want
residential security camera footage, security footage from a business, or traffic camera footage.
Often, those videos are destroyed within 7-14 days so time is of the essence.


DOL…DOL…DOL…Don’t Forget!


Finally, DO NOT WAIT ON YOUR DOL HEARING REQUEST! If you had “contact” with a police
officer for a potential DUI or Physical Control charge (if you were not arrested but they may be
forwarding your information to the Prosecutor’s Office), your 7 day window to request the
hearing will likely start from the date you had that contact with law enforcement. It only 50% of
our cases do the officers give the suspect the actual DOL request form. It is up to you to know
that you need to request that hearing within 7 days even if you were never given the form. You
have no other recourse if you wait beyond the 7 days.


If you have any questions about your DUI arrest, stop, investigation, or the DOL hearing request
process, do not delay in contacting our office. We are available 24/7. If this post was relevant to you, CLICK HERE for many similar posts. 

Published in Witt Law Group Blog


The Kitsap Prosecuting Attorneys have slightly more time on their hands. However, hands in a prosecutor’s office never go idle. It is normal for prosecutor’s offices to have a small backlog of uncharged (or unfiled) cases. This happens in nearly all offices, especially on types of cases that are deemed to be lower priority. Lower priority cases are typically Theft, Malicious Mischief, Hit and Run, etc. They are nuisance type cases rather than cases where there is a threat to the community. This is in contrast with higher priority cases such as DUI or any type of domestic violence.

So What Is Happening With The Backlog?


When a prosecutor’s office has a lower number of “high priority” or in-custody cases to deal with, their time will turn to “charging”- making a decision of whether or not a crime has been committed, and whether or not they believe they can prove it beyond a reasonable doubt. Most offices will use this time, while the courts are essentially closed, to catch up on their charging duties.
Once a case is charged, the prosecutor’s office will send the casefile to the court clerk’s office. It is then put into the court’s database. The court clerk’s function is to set a court date and send out a summons to the last known address of the person who has been charged.

Why Is This Important?


We have dealt with many people in the Kitsap area over the years who had very minor altercations with the law, and then believed nothing had come of it. Six months or a year will go by and the person moves away. Such a long period of time had lapsed that they truly believe their contact with law enforcement amounted to nothing. Then, the prosecuting attorney gets around to reviewing and charging the case. A summons is sent to the last known address, the person does not receive the summons, Court is held, and an arrest warrant is issued.


How Does A Person Stay On Top Of This?

 

There are several proactive steps a person can do to ensure that they don’t get a warrant. First, the person must make sure that their address is correct with the Department of Licensing. This is the address that the Court will use to send a summons. Second, call a local defense attorney. An attorney can call the prosecutor’s office and determine if an investigative report has been submitted, and if so, they can determine where in the process the file is for charging. If the case is charged, they can alert the individual to ensure that they are aware of any future court dates.

Other Benefits Of Being “In Front Of” Your Case

 

Lots of these cases that are currently being reviewed for charges are deemed lower priority. That said, there are more favorable options for how to resolve such a case. On many occasions, we can have a negotiated resolution or even a dismissal ready to go at the Arraignment.


If You Have Received A Summons For Court, Give Us A Call!

 

These matters are important and we answer the phone for criminal questions 24 hours a day. We have heard from the Kitsap County District Court Clerks that summonses will be sent for dates starting in late May and June. If you receive a summons for Court, don’t delay or disregard. Better outcomes are possible when we are involved early on.

Published in Witt Law Group Blog

While it is true that there are many changes to how courts are running during the COVID-19 pandemic, most aspects of our practice are moving along in a normal fashion. It took a few weeks to get all the “players” in place and learning to practice law from home but, for the most part, we have all settled into our new normal. For this reason, the short answer to this questions is—don’t count on that kind of miracle.

Criminal Cases Continue To Be Charged

 

In fact, most prosecutors we have spoken with have indicated that, during their time away from the courtroom, they are spending more time charging cases. This means they are reviewing police reports that may have been filed with their office in the past year and deciding whether to charge a person with a crime. If they charge you, the case is sent over to the District Court Clerk’s office and they will send a Summons to your last known address with Department of Licensing. This is a good reason to make sure your mailing address is up to date! So, be prepared that charging is increasing and Summons are already being received in the mail. To us, that means prosecutors are moving full steam ahead during the pandemic.

Is There A Silver Lining? 

 

One potential positive outcome due to the COVID-19 court changes might be the willingness of the prosecutor’s office to extend better offers to defendants. This could be happening to avoid the upcoming backlog of cases that we know will soon be clogging the court calendars. The “better offers” might look like a pretrial diversion agreement with less restrictive conditions than in a normal circumstance. However, we do not expect to see any straight dismissal of charges unless there was already a legitimate legal challenge to the charge. The best way to know if you are a candidate for a “pandemic deal” is to keep in touch with your lawyer and let them know if you have taken any proactive steps during the court date rescheduling period. The more seriously you take your criminal charge and the more proactive steps you have taken during the break, the greater likelihood of negotiating a good deal should you choose not to go to trial.

 

Published in Witt Law Group Blog

One of the new options under the umbrella of Therapeutic Court is called THRIVE. This new program stands for Teaching, Healing, Resilience, Independence, Voice, and Empowerment. This new program is available to a person who has been exploited or trafficked in their life. This can mean anything from survival sex, sex for drugs, having a pimp, labor exploitation, or other behaviors that indicate exploitation. Most importantly, there is not a requirement that you testify against your pimp or trafficker but you will be required to comply with subpoenas. If this is something you are concerned about (you know that the Prosecution will need your testimony in a trial) you should address this with your defense attorney.

Does my charge have a nexus to my current or past abuse?

 

The key to qualifying for THRIVE is that the applicant’s exploitation must, in some way, be connected to the current offense. For this reason, the THRIVE team has to look at eligibility on a case-by-case basis to review the facts around the applicants pending criminal charge. However, there are some criminal charges that will automatically make you ineligible such as sex offenses, serious violent offenses (as defined by statute), or where the accused appears to be more of a trafficker than the one being exploited.

How do I apply?

 

The Prosecutor’s office has a therapeutic court form which must be submitted before the team will conduct a needs assessment and substance abuse disorder evaluation. The team will review your application and determine if the necessary nexus exits in your case. If you are approved, you will meet with the team every other Friday morning.

 

What is required of a THRIVE participant?

 

The program is 18 months long, which includes three 6 month phases. Some participants will need inpatient treatment first and then the participant will begin outpatient treatment and mental health treatment. Unlike other therapeutic court programs, the participants in THRIVE do have the option to participate in out of county therapeutic programs. Additionally, another unusual component is that the team may allow you to appear via video rather than in-person for every court appearance. With such intense treatment, this option of video appearance makes compliance with treatment requirements quite a bit easier.

Published in Witt Law Group Blog

As we were reviewing upcoming court hearings, we touched base with Pierce County District Court and learned they are handling things a bit differently. Unlike Kitsap County, which is already moving court dates to June and July, Pierce is taking a “pause” on court hearings. It was explained by a Clerk that “paused” means no one appears on the current date set (in April, for example) and, when the Courts return to a normal schedule, they will reschedule a hearing date and send out notice.

Make Sure Your Address Is Correct!

 

The only issue with this process is that, if you are “waiting” for a new date, it is possible that your summons might not reach you. Theoretically, if your address is up to date with Department of Licensing, you should receive the mailing of your new date. However, in the past, mistakes have been made. To avoid any risk of missing your new court date, make sure you check in with your lawyer. You can also check with the Clerk’s office to make sure they have an accurate address for you.

How To Check Your Date Online

 

If you want to check on any pending rescheduling, we have provided a video on how you can look up your court date under our Videos tab. It does NOT work for any Superior Court. Again, if you do not see your new date, it is best practice to check in with your attorney or the Clerk’s office. Once you click on the video (below), make sure to scroll down. 

 

CLICK HERE FOR VIDEO ON HOW TO FIND YOUR DATE

 

 

Published in Witt Law Group Blog

Whether or not an officer needed to administer Miranda warnings is a complicated box to unpack. Our experience in speaking with clients is that most people believe that the warnings were necessary, and without the warnings, a case may be thrown out.


This is not the case. There are many factors that play into whether or not the warnings are necessary. And if a Court rules that they were necessary but not provided, what is the remedy?

Three Part Test For Miranda

There is a simple three part analysis that we use to determine whether the Miranda warnings are required in any given situation: Are the statements in response to a (1) custodial (2) interrogation (3) by an agent of the State? If the answer to any one of the three questions is no, then the warnings were not necessary. The following is a breakdown of what each term means.

Custodial


Custodial means that the person was by all accounts “in custody.” The individual does not necessarily need to be detained, but the individual must feel as though they are not free to leave. This is a case by case analysis and it depends heavily whether or not the person felt free to leave. If the individual is under 18 years of age, extra caution is used in the analysis tending to favor the juvenile.

Interrogation


Interrogation means questions that are intentionally crafted and asked to elicit a potentially incriminating response. When responses are given in response to an interrogation, the responses must also be voluntary – in other words, they can not be the product of threats or promises that undermine the defendant’s free will. If a confession is beat out of someone with a rubber hose, that confession is inherently unreliable. Voluntariness is determined from a review of the totality of the circumstances.

Agent Of The State


An agent of the state is typically a police officer, but other governmental officers can apply. Therefore, statements made to other civilians do not trigger Miranda warnings. Statements made to a shopkeeper or a school security guard are also not made to agents of the state. In almost all circumstances, the rule only applies if statements are made to a police officer. 

How The Rule Is Applied


If no Miranda warnings were provided and you are curious if statements that you made to law enforcement will be admissible in future court proceedings or a trial, you can ask yourself the three part question: Were the statements in response to a (1) custodial (2) interrogation (3) by an agent of the state?


If the answer to any one of the three parts is yes, then statements potentially can be excluded from future Court proceedings. The process where that happens is called a 3.5 Hearing, which is short for Criminal Rule 3.5. Criminal Rule 3.5 provides:


When an accused’s statement which is subject to constitutional protection is to be offered in evidence the Court shall hold, upon demand, a hearing for the purpose of determining whether the statement is admissible.


At the 3.5 Hearing, the Court determines whether or not the statement can be introduced at trial as evidence. 3.5 hearings happen prior to trial and outside the presence of a jury. If the Court excludes a statement based on the above three part test, the jury should never hear it. Some statements are untimately suppressed, but the case would never be dismissed on this ruling alone. 

Statements NOT Protected By Miranda


Certain statements made to law enforcement do not receive these constitutional protections. Statements that are made voluntarily and not in response to a question receive no protection. For example, when a person is sitting in the back of a police car and just running their mouth, nothing they say will be protected. That person’s statements are not made in response to questions, so the exchange is not an interrogation. Hence, no constitutional protection.


Witt Law Group is a criminal defense law firm based in Kitsap County Washington. If you have a question based on your Miranda warnings, or any other criminal defense question, give one of our lawyers a call. If this topic was of interest to you, CLICK HERE to read similar posts in our Blog.

Published in Witt Law Group Blog

Being arrested or charged with a crime does not mean that you have been found guilty. In fact, you are presumed innocent unless and until proven guilty in a court of law. To prove an individual is guilty, the prosecuting attorney must prove each and every element of the crime charged beyond a reasonable doubt. Beyond a reasonable doubt is a much higher standard than what is required for the initial arrest or charging. Even if you have made a first appearance and a judge found probable cause for the arrest, it is important to realize that there is still a big burden for a prosecutor to prove every element of a crime.

Call Sooner, Rather Than Later

If we are fortunate enough to receive your call early in the process, it opens the possibility of resolving your case without so much disruption in your life. In fact, when we get involved in the process early (pre-arrest), there are occasions when we are able to convince the prosecutor to drop the case. While it isn’t common, we always prefer the option to talk with a prosecutor before a charging decision has been made. Once the ball gets rolling, it is often hard to stop the momentum. For that reason, calling an attorney early is always preferable.

Even with all of the rights afforded to a person accused of a crime, the process is still weighed heavily against them. Once a person is “before the court,” they become subject to that court’s conditions. That can be anything from cumbersome conditions of release, fines, restitution, probation and other court-imposed sanctions. Our intent is to get you through the process as painlessly as possible and with the least amount of negative consequences. The earlier we get involved, the better able we are to meet this goal.

The Critical Time Is Before You Are Charged

If you have been contacted by law enforcement but have not yet been charged with a crime, this period can be the most critical for an attorney to get involved. Don’t let this window pass and just hope for the best. If you have already been charged, it is still imperative that you contact an attorney as early as possible. Every week that passes can be critical to the resolution of your case. Our goal is to prevent a conviction but also to reduce the immediate consequences and stress that a criminal accusation can cause.

Guiding You Through the Process

Since most crimes carry with them the real possibility of jail time (some have mandatory jail time), getting an attorney involved early can help reduce or eliminate your chances of incarceration. We understand that each client has a life outside of their legal issues. Most want more than anything for the stress to go away so they can return to their normal way of life. We have successfully guided thousands of people through this process and brought them from hopelessness to a clear path back to a successful life.

We are passionate about your case. You are not a number on an assembly line. We develop a relationship with each client so we can better convey your theory and defenses to the court and persecution. Sometimes that process becomes contentious but Mr. Witt has a reputation for not backing down. There are times when justice requires a very aggressive defense and Mr. Witt is exceptionally experienced in providing that defense. Witt Law Group has offices in Bremerton, Poulsbo and Gig Harbor for your convenience. 

Published in Witt Law Group Blog
January 28, 2020

What Should I Wear To Court?

For some of you, this may seem like a silly question. However, there are a lot of people who have never stepped foot in a courthouse or are young and have never heard of “business casual.” Never feel too embarrassed to ask your lawyer about courtroom protocol because putting your best foot forward can only help your case. Being appropriately dressed and groomed is helpful but there are a few other suggestions we would like to make:

 

1.  Confirm with your lawyer that you know the date, time, and courtroom where you are required to be. Do NOT do this an hour before court. If you have an experienced criminal defense attorney, it is likely that she has been in three courtrooms before you have even parked your car. The attorney is rarely able to answer phone calls on the morning of court. Call the office the week before your court date. Make sure to provide a good phone number (one that you will answer on the morning of your expected court date). If plans change, the attorney or office can reach you to give you updates.


2.  Always plan to arrive to court 15 minutes early. Depending on the court location, parking can be a hassle. For example, you might need to walk a fairly long distance in Pierce County.


3.  Be prepared for security. If you carry a lot of “trinkets” in your purse or pockets that might set off the scanner, it is probably best to leave those at home. Go into the courthouse with the bare minimum so you can get through security quickly.


4.  TURN OFF YOUR PHONE. This should probably be #1 on the list. It looks incredibly rude to have your phone go off in court. Some judges will make that mistake a VERY memorable occasion for you. Trust us on this one!


5.  Remember any paperwork that you may need.


6.  If asked to address the Court, the correct response to the judge is “Your Honor.”


7.  As far as appearance, wear clothes that are appropriate for a job interview. If you don’t have slacks, a button up shirt, or a simple dress, then wear something that does not draw attention. For example, no funny t-shirts, no beer/weed references, or inappropriate language. Not everyone owns “fancy” clothes and that is understandable. However, if that is your situation, do your best to have clean, neatly pressed, non-torn up clothing. Remember, your appearance says something to the Prosecutor. Does it say that you are taking this situation seriously?

 

As a side note, try not to panic. Often, the stress of mentally and physically preparing for court can cause unintended side-effects. Your demeanor may change in a negative way and it might appear that you are being disrespectful or dismissive. If you have never been to court before, let your attorney know so that you have a basic understanding of what will be happening. For an Arraignment, people often think something “big” is happening. Generally, that is not the case. In fact, an Arraignment is quite uneventful and, unless you are waiting for in-custody defendants, you will be in and out of court fairly quickly.

 

While knowing what to wear is important, the best thing you can do for yourself is be prepared mentally. Most clients want the process to “hurry up and go away” so life can get back to normal. Unfortunately, it is rarely a quick process.

 

Keep an open dialogue with your lawyer about your concerns but also trust that he or she is working behind the scenes to find defenses and negotiate a positive outcome in your case. Nearly all of the work a defense attorney does on your behalf is done outside of the courtroom. Your court appearance is simply a formality and the negotiation happens over the phone, by email, and even in the courthouse hallways as defense attorneys try to catch busy prosecutors racing from one courtroom to the next.

 

The criminal justice system is somewhat like controlled chaos. That is hard for most people to understand. It is messy but things are happening in the “order” they should. Follow the suggestions above and you will help your defense attorney by being present, on time, and respectful of the process.

 

Published in Witt Law Group Blog
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