July 06, 2019

Physical Control

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


The Elements Are Not Defined


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


Affirmative Defense of “Safely Off The Roadway”


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


Get The Best Possible Defense For Your Physical Control Case


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

Published in Criminal Defense
April 22, 2019

Summons For A DUI

I received a summons for a DUI.  What should I do? 

Historically, when a person was arrested for DUI, he or she would be taken into custody or, alternatively, directed by the arresting officer to be present in Court the next date Court was in session. The initial appearance or arraignment for the DUI was typically on the Monday following the arrest. This has been the common practice for decades. Rarely, would a defendant be mailed a Summons regarding a DUI charge and, certainly, not six or nine months after the initial arrest. Over the course of the last year, this has all changed.

Why The Change In Practice?

The legalization of marijuana has changed how law enforcement and lawyers handle criminal charges. Following the passage of Initiative I-502, law enforcement and policy makers have been in a constant race to keep ahead of the issues that “legal” marijuana creates.

What is The Change?

For a large portion of DUI arrests, law enforcement is now drawing blood. Since so many citizens partake in the use of marijuana, it logically follows that a DUI suspect might be impaired due to THC. Without a blood draw, there is no definitive way to know if the person has smoked or ingested marijuana.


Unfortunately, when a DUI suspect has their blood drawn, the result is not available immediately, as it is with a BAC machine measuring alcohol. Consequently, the arresting officer will simply file a report, submit the blood to the toxicology lab, and then forward that information to the Prosecutor’s office. Despite the fact that the suspect is technically “under arrest” during the process, he or she is not booked into jail and does not remain in custody. Furthermore, the suspect will not be directed to appear in Court. The reason for the change in protocol is twofold.


The primary reason for the change in protocol is simply logistics. It takes several months for law enforcement to receive the result from the blood draw. The blood samples must be sent to the Washington State Crime Lab, which is providing those results in approximately four months. We have seen results come back eight months later!


The second reason for the change is that the delay in blood results creates a subsequent legal challenge. The Court and the Prosecutor must comply with a suspect’s speedy trial rights, which is 90 days following the arraignment. If the Prosecutor’s office charges a case immediately following the arrest, this means they must be ready to take the case to trial within the 90 day window. Clearly, with their evidence at the toxicology lab for four or more months, this wouldn’t work. The Prosecutor would lose all of these cases based on the legal challenge from any competent defense attorney. Therefore, it is imperative that the Prosecutor delay the arraignment.

Community Safety

Once upon a time, the Prosecution believed in the importance of getting a DUI suspect into Court quickly, so that they could set “conditions of release.” In other words, cases were prioritized to ensure community safety. Historically, on a Monday following a DUI arrest, the Prosecutor would request that the Court order a defendant to consume no alcohol or non-prescribed drugs. After I-502, the priority of community safety has changed. Without a faster turn around time from the toxicology lab, the Prosecution must alter strategy to comply with the rights of the accused. Simply put, the State cannot charge a person without evidence ready to take to trial.

Real World Consequences

Hypothetically, a person can be arrested in January and wait in limbo for many months to know whether their recreational marijuana use met the 5 ng/ml standard for a DUI. After several months pass, most people think their blood sample was fine. Since the suspect is released the night of the blood draw with no instruction on when (if at all) to go to Court, he or she believes life can go on as normal.


In May, a job opportunity arises out of state that the individual can’t pass up. The person moves on with life and that means a new address. Since many months have passed, the person does not think to leave a forwarding address or contact Washington Department of Licensing. Six months later, when the DUI is charged, a Summons is mailed to the last known address. Not surprisingly, the person misses the court date listed on the Summons. Now, a Bench Warrant is issued for their arrest. Additionally, the individual also fails to receive the information regarding the 7 day window to request a Department of Licensing Hearing to challenge their license suspension and, therefore, is now driving on a suspended license.


As you can see, there are many frustrating challenges that flow from the delay in blood results. Unfortunately, this “hypothetical” is actually happening to many Washington citizens everyday.

What Should I do?

First and foremost, keep your address up to date with the Department of Licensing. Once your case is charged, the Prosecutor will give the information to the Court Clerk’s Office and they send out the Summons. They send the Summons to the last known address provided to DOL.


Second, get ahead of the DUI charge. When we are hired for a DUI and there is no date set, we typically advise our clients to take some proactive steps. We will consider whether, in a particular case, an alcohol evaluation or a DUI Victims Impact panel might be beneficial to complete before the arraignment date. Additionally, we keep in regular contact with the Prosecutor’s Office so we know as soon as the case has been charged. There are strategies that we employ that can make the arraignment – and the remainder of the case – go much more smoothly.


There are too many pitfalls to go through this process alone. If you have received a Summons for a DUI, or you were arrested and have not yet received a Summons, give our office a call for a free, confidential consultation.

Published in Criminal Defense
April 20, 2019

Marijuana DUI

When Washington State added marijuana per se limits to the DUI statute, they unintentionally created a legal paradox. While an alcohol-related DUI is based on science, the marijuana DUI standards are based on fear. The marijuana standard of 5 ng/ml is simply an arbitrary number based on no clear understanding of THC on impairment.

When the marijuana DUI law was created, it was generally agreed upon that the 5 ng/ml standard did not truly measure impairment. Attempted measurement of impairment is too subjective based on many physiological factors that differ from person to person. The origin of the 5 ng/ml standard is not impressive. Rather than a basis in agreed upon science, it is the result of clamoring from multiple special interest groups.

No Correlation Between Per Se Standard and Impairment

Marijuana does not have a steady burn off rate in our bodies like alcohol does. After an individual uses marijuana, even long after they are no longer “high,” the THC is stored in fat cells and slowly released over days or weeks. The “high,” or impairment, may only lasts a short period, but the measurable amount THC remains for a much longer period.

The Marijuana DUI Statute

The statute that is used to criminalize marijuana and driving is simply a modified version of the decades old DUI statute. RCW 46.61.502 was modified in the following ways to regulate marijuana:

RCW 46.61.502

(1) A person is guilty of driving while under the influence of … marijuana … if the person drives a vehicle within this state:
(b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or
(c) While the person is under the influence of … marijuana; or
(d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug.
(2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.

Similarities

The marijuana DUI is a gross misdemeanor, just like the alcohol DUI. The requirements upon sentencing are similar as well. An individual convicted of a marijuana DUI will also need to obtain an alcohol and drug evaluation, follow through with treatment, and complete a DUI Victim’s Impact Panel.

Differences

Difference 1 is the timeline. The timeline is much different with a marijuana DUI. With an alcohol DUI, an individual typically goes to Court for a first appearance on the next judicial day. The criminal process starts immediately. With a marijuana DUI, the Court process may not start for 4 to 8 months. Long enough where the individual can forget about it – and then they receive a summons in the mail. The reason for this long delay is that the arresting officer will send a suspect’s blood sample off to the Washington State Crime Lab. The Crime Lab doesn’t turn the result around for many months. Then, once the result is received by the arresting officer, it is finally sent off to the local prosecuting attorney’s office, who will ultimately charge the case.

Difference 2 is the presence of a warrant. In the great majority of marijuana DUI cases, the root of the blood result is a warrant. For law enforcement, obtaining a warrant is a specialized process fraught with pitfalls where law enforcement is prone to make errors. If an error can be exposed in any part of the warrant application process, then the result of the warrant (the blood result) can be thrown out.

Marijuana DUI cases are defensible. If you have been charged with a marijuana DUI case, you need to contact an experienced DUI defense attorney right away. You do not want to wait the 4 or 8 months until the case is charged. Within the first several days there are strategic decisions that need to be made (should you go obtain your own independent test?) and timelines that need to be recognized (do I need to request a DOL hearing within 7 days?). These decisions are critical and can not be revisited once it is too late. 

If you have a question about a marijuana DUI case, call our office for a free, confidential consultation.

Published in Criminal Defense

Typically most resolutions of a DUI charge require a chemical dependency assessment. Below is a list of treatment providers most commonly used by our clients. These providers can be quite busy and it may take several weeks to get your assessment so please don’t delay in making your appointment.

 

Action Counseling

729 Prospect Street, Suite 200

Port Orchard, WA

P: 360-895-1307

F: 360-895-4805

 

Peninsula Counseling

3214 50th St. Ct. NW, Suite D305

Gig Harbor, WA 98335

P: 253-851-4600

F: 253-851-4602

 

Suquamish Tribe Wellness Program

18490 Suquamish Way, Suite 107

Suquamish, WA

P: 360-394-8558

F: 360-598-1724

 

The Right Choice Counseling

1740 NE Riddell Road, Suite 170

Bremerton, WA

P: 360-373-4077

F: 360-792-0362

 

You are free to use any treatment provider approved by the Court. It is important that the provider you choose is reliable as far as processing reports and communicates in a timely way with our office. If you have questions about a specific treatment agency or need to use an agency outside of this list, feel free to contact our office.

 

Please remember that we would prefer 7 days advance notice and possibly more if you have an out of area assessment provider.

 

If you click on the links provided, you will find the current list of all approved treatment agencies by Kitsap County and Pierce County.

Published in Witt Law Group Blog

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. 

Published in Witt Law Group Blog

Victims Panels

 Bremerton

http://duivictimspanel.com

 

Kitsap County

https://www.duiimpactpanel.com

 

Port Orchard/South Series (no website)

Marilyn Clapper
PO Box 1971
Gig Harbor, WA 98335
Email:
Phone: 360-731-2077 or 253-884-0715

If you need to locate a panel in a different location than listed above, you can find the list approved by the Washington Traffic Safety Commission HERE.

Defensive Driving Classes

https://www.idrivesafely.com

https://ntsi.com/washington/

* Select the 8 hour / level 2 class unless instructed otherwise

Published in Criminal Defense
October 09, 2018

To Blow Or Not To Blow?

People frequently call us during a DUI arrest to ask whether or not they should blow at the station. (This “blow” refers to the admissible breath test and not the portable breath test along the roadside.) More often than not, people tell us that their plan is to refuse to blow and they want us to give them confirmation that this is a good idea. Often, they are quite surprised when we provide them with numerous reasons why they SHOULD take the breath test.

Sanctions are more severe if you refuse

First, Washington is an “Implied Consent” state, meaning any person who operates a motor vehicle within this state is deemed to have given consent to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath. In other words, by driving on the roads in the State of Washington, you are essentially agreeing to take the test. Since there is an implied “agreement”, when you violate it (by not taking the test), you are also agreeing to predetermined sanctions by Washington’s Department of Licensing – specifically a lengthy license suspension. 

The refusal can be "argued" by the prosecutor at trial

Second, if you refuse the breathalyzer test, that refusal can be used against you at a criminal trial. This means the Prosecuting Attorney is allowed to “argue” the refusal to the jury when they are putting on their case in chief. The state has wide latitude in its presentation regarding your refusal. The Prosecutor can argue that “only the defendant knows how wildly intoxicated they were, and the refusal is just their way to hide that heinous fact from law enforcement or the Courts.” Additionally, this argument regarding your refusal can also be used at Arraignment. The Prosecutors can argue (and with fairly decent success) that a person who refused is a danger to the community and that individual needs an ignition interlock installed on his or her vehicle.

In a nutshell, we typically believe that it is better for a person who has been arrested on suspicion of DUI to blow into the breathalyzer machine at the station when requested. It is easier for a defense attorney to challenge the results of the blow than it is for us to challenge a refusal. These are just two of the main issues that arise in a refusal. If possible, reach out to a criminal defense attorney after you’ve been arrested but before the breath test at the station is administered. Each case is unique and the attorney will want to ask you questions as you are being processed.

If you have questions about your DUI case, give our Gig Harbor or Bremerton office a call. We take calls 24/7 and our consultations are free. Every stop is unique and it’s important to have an experienced criminal defense lawyer learn the details of your case before you make any big decisions.

Published in Witt Law Group Blog

If I am arrested for DUI, am I required to take the BAC at the police station?

Drivers in the State of Washington are assumed to consent to the breathalyzer request (BAC) by simply driving on the state’s roads. This is known as Implied Consent.

The statute reads in part: 

RCW 46.20.308
Implied consent—Test refusal—Procedures. (Effective until January 1, 2019.)
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503.
(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. Prior to administering a breath test pursuant to this section, the officer shall inform the person of his or her right under this section to refuse the breath test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that:
(a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and
(b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and
(c) If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if:
(i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver's breath is 0.08 or more; or
(ii) The driver is under age twenty-one and the test indicates either that the alcohol concentration of the driver's breath is 0.02 or more; or
(iii) The driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and

******
(4) Nothing in subsection (1), (2), or (3) of this section precludes a law enforcement officer from obtaining a person's blood to test for alcohol, marijuana, or any drug, pursuant to a search warrant, a valid waiver of the warrant requirement, when exigent circumstances exist, or under any other authority of law. Any blood drawn for the purpose of determining the person's alcohol, marijuana levels, or any drug, is drawn pursuant to this section when the officer has reasonable grounds to believe that the person is in physical control or driving a vehicle under the influence or in violation of RCW 46.61.503.

 Should you take the BAC test?

Boiled down, the statute says that 1) you consent by driving in Washington 2) if you refuse, you will face much stiffer penalties in your criminal case as well as your administrative consequences with DOL, and 3) you are specifically informed that your refusal can be used against you in trial. Your license will automatically be suspended and the suspension will last longer than if you had blown into the BAC. We have some clients happily tell us that they refused the BAC. Most often, these clients are from out of state. Unfortunately, being unaware of the implied consent rule is not a defense. Most defense attorneys will tell you that refusing only makes your case more difficult and the result more unpleasant. Even if your blow is high, there are still many options that your attorney can consider for suppression of the test. With a refusal, the defense attorney is much more limited in negotiation.

The BAC is different from the roadside test

Remember, the BAC at the police station is very different from the portable breath test (PBT). The officer will request that you submit to the PBT while conducting field sobriety tests along the road. There is no implied consent regarding field sobriety tests (FST). They are voluntary and are used by the officer to gain evidence regarding probable cause for your arrest. However, be aware that the Washington State Supreme Court in Mecham did uphold the lower court’s decision to allow the prosecution to reference the refusal to submit to FSTs as evidence and as well as discuss the refusal in closing. State v. Mecham, 186 Wn. 2nd 128 (2016). Defense attorneys everywhere are still scratching their head.

The ruling in Mecham seems to go against everything we know when advising clients that these tests are voluntary. The Court found that the FSTs are seizures but are not searches under the Fourth Amendment and, therefore, you have no Constitutional right to be protected from using that refusal as evidence of guilt. This is perplexing since an officer can’t gather “evidence” of probable cause for the arrest without you engaging in physical actions that the officer orders you to do. Consequently, many defense attorneys believe FSTs are definitely a “search” but we are still bound by the ruling in Mecham.

Regardless of the Mecham ruling, realize there are still opportunities to refute this “evidence of guilt” since there are a countless number of reasons innocent people would not submit to FSTs. For example, there are dozens of health issues that would cause a person to fail these tests and, therefore, they would rather go to the police station and speak to a lawyer about what they should do. It is best to consult with legal counsel if you are concerned about any refusal following a DUI arrest.

Witt Law Group PS is a DUI defense, criminal defense and personal injury law firm with offices in Bremerton and Gig Harbor Washington. 

Published in Witt Law Group Blog

When I-502 passed in 2012, big changes happened in Washington. The Initiative didn’t just create rules for the legal use of marijuana, there were some trickle down impacts that most defense attorneys saw coming.

To appease those who were skeptical that a civilized society could use cannabis without absolute chaos ensuing, there were numerous “safe guards” that were created. There were educational programs set up through the state to help people learn about cannabis and the risks to teens. Information was disseminated regarding medical marijuana authorization and who would be considered credentialed under the oversight of the Washington State Liquor and Cannabis Board. Additionally, to address the risk of people becoming impaired and driving, lawmakers decided on a per se standard with regard to Marijuana DUIs.

The skeptics got their way   

 

In Washington, the per se standard is 5ng of THC per milliliter of blood. This standard met with disapproval by many who found it arbitrary. There was research prior to the passing of the Initiative, as well as following it, which did not support the notion that THC and Carboxy-THC could predict driving impairment. (National Highway Traffic Safety Administration)

Carboxy-THC does not measure psychomotor impairment and, additionally, this metabolite can exist in your system for hours, days, or weeks after use. Some citizens and defense attorneys were concerned that, despite waiting to drive for an appropriate time following the use of cannabis, the per se rule of 5 ng/mL would subject a person to a DUI who was not actually impaired. Since science has yet to provide us a bright line rule regarding cannabis use and impairment, the debate continues and so does the per se standard.

Get educated if you choose to use marijuana

 

Whether you agree or disagree with the per se standard of 5ng/mL, it is important for those who use cannabis recreationally or for medicinal reasons to educate themselves on this topic. It is entirely possible to be arrested for a Marijuana DUI even if you have not smoked or ingested cannabis for more than the suggested time by Washington State Department of Health or WSLCB. You may believe (perhaps accurately) that you are not impaired, but it is still possible to be prosecuted for DUI.

Published in Witt Law Group Blog

To answer this question, you need to consider whether you fit into one of the three most common fact scenarios. These scenarios vary based on arrest and events immediately following your arrest. Almost everyone will fit into one of these three scenarios.

The most common situation is an arrest followed by booking into jail and bailing out

 

When an individual is arrested for a DUI in Kitsap County, the law enforcement officer will almost always book the individual into the Kitsap County Jail. Bail on a first offense DUI with no aggravating factors is usually $5,000. As the person bails out, the jail will give them a court date for their arraignment. If the person was arrested on a Friday or over the weekend, the date will usually be on the following Monday. If the individual was arrested on a weekday, the arraignment date is usually the next day, but not always.

At the arraignment, the Court will assess the bail and whether the bail amount is appropriate. Typically, if bail was set at or near $5,000, the Court will allow the individual to remain out “on bail posted” meaning that they will not need to be rebooked and post additional bail.

This does not hold true if the individual has a 2nd DUI and the officer who booked the individual was not aware of the prior DUI. In that circumstance, the charging Prosector will see the prior DUI (even if it is out of state) and likely request that the Court increase the bail to something much higher than the $5,000. Typically, this number is between $10,000 and $50,000. The number will be higher the closer the prior DUI is in time.

The second most common scenario is when an officer arrests you for DUI and gives you a date to appear in Court but does not book you into jail

 

Sometimes an individual is arrested and the officer, for whatever reason, does not book the individual into jail. This is more common in small cities, like Poulsbo. Using Poulsbo as an example, the Officers complete the process and then typically allow you to find a ride home. They will provide you notice of an arraignment date, which is mandatory. Since Poulsbo only has court on Wednesdays, your arraignment should be the Wednesday following your arrest. You are required to appear on that date.

In this scenario, you typically are not going to jail at your arraignment but there are some exceptions. You are safe (meaning you will most likely not go back to jail at arraignment) if:

      You have no prior DUIs
      Your blow was not shockingly high (like over a .2)
      There was no accident and the stop was for something benign (like speeding)
      You don’t have numerous FTA’s (failures to appear) on your record
      You were not driving on a suspended license, or in violation of an ignition interlock order
      And, lastly, there were no previous Court orders from any Court ordering you not to consume alcohol

If none of these six factors are present, the Judge will most likely PR you (meaning release you on your personal recognizance). There will be conditions placed on you (such as do not consume alcohol) but you do not need to post bail. If one or more of the above conditions are present, you need to anticipate that the City Prosecutor will request that you be taken in on bail. You will need to be prepared with arguments to persuade the Judge to not impose the bail that the Prosecutor is requesting.

Finally, the least common scenario is when you are arrested but no arraignment date is given

 

Occasionally, there are DUI arrests where a person is processed for DUI but they are not given a Court date. This most typically happens when a person is under suspicion for DUI based on a controlled substance rather than alcohol. When an officer suspects impairment on the road side, the officer’s first response is to determine if alcohol is a factor through the use of a portable breath test (PBT). When a person blows 0.00 on the “PBT” and the officer still believes that the individual is impaired, the detention escalates to a more formal procedure where the officer may need a warrant to draw the blood of the suspect. At this point, the stop has escalated, and it can go one of two directions.

The officer will ask you for your consent to give a blood sample, or
If you refuse to consent to give blood, the officer will request a warrant to take your blood (over your objection). Judges will typically grant the officer’s request and sign a warrant allowing the officer to utilize the staff of a hospital or ambulance to draw blood. In both of these scenarios, a blood sample is obtained by the State.
Once the blood is drawn, it is sent to the Washington State Crime Lab. The current backlog at the Crime Lab is roughly 15 weeks. This is why an arraignment date is not provided, as in the first two scenarios. The State can’t charge an individual when the blood result will not be available to be used as evidence in a trial for roughly 15 weeks .

All individuals have a Constitutional right (if out of custody) to be tried within 90 days from the date of arraignment, and the Crime Lab is about 105 days out (15 weeks). Consequently, the State does not charge the cases (or have arraignments) until the blood result is received from the Crime Lab. This way, they do not burn up any “speedy trial” time.

The benefit of the delay in charging is that, once your arraignment occurs, the Judge will usually release you on your own recognizance if you have had no subsequent alcohol-related offenses during the 15-20 weeks.

We tried to cover the three most typical scenarios but all cases are different. Reading an article is no substitute for an in-person conversation with legal counsel. Give our office a call if you have any questions and we will do our best to keep you out of jail at your arraignment.  We have offices in Gig Harbor and Bremerton Washington and can answer questions about your arraignment or about anything else related to your criminal case. 

Published in Witt Law Group Blog
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