A Ticket when the Officer never saw the Collision?

Recently I have spoken with a number of people that have received citation after they have been in a collision. The odd part is that the vast majority of these collisions did not happen in the presence of the Officer. Common citations for these circumstances are: Following Too Closely, Speed Too Fast for Conditions, and Following Too Closely. So how does the Officer cite someone for a traffic violation when they did not witness any violation occur?

RCW 46.63.030 allows the officer investigating the scene of a collision to issue an infraction if they have reason to believe the driver committed a traffic infraction. This is typically done by the Officer filling out a collision report that utilizes techniques of accident reconstruction. Based on what the Officer determines, they issue an infraction to one of the drivers involved in the collision. There seems to be a policy in place in most departments that require the Officer to cite someone with an infraction. The citations listed above (Following Too Closely, Speed Too Fast for Conditions, and Following Too Closely) are the ones typically cited by the Officers because they way the statute is written, they are pretty easy for the prosecutor to win.

So how do you fight a ticket when the Officer is alleging a violation that they did not witness? As a Snohomish Count Traffic Attorney, my first line of attack is to exclude as much of the evidence as possible. There are rules to infraction law that, if not followed, allow me to exclude certain evidence from be considered by the Judge. Officer have to be very specific with their reports when they are listing conclusions based on an incident that they did not witness. In Snohomish County Traffic Court there is typically a prosecutor present and ready to argue for the admissibility of the evidence. Being prepared and knowing the law and the case law is how you fight these tickets.

Arguing the facts of the ticket can be a loosing battle in most circumstances. For example, imagine a circumstance where vehicle one rear-ended vehicle two and vehicle one was cited for following too closely (Officer did not witness the accident). A fact based defense may be telling the judge that you were not following too closely, but rather the person merged right in front of you, then slammed on their brakes, and you ran into them. The Judge could find that you just admitted to the infraction because you did not immediately break when the other vehicle merged and immediately allow enough room between your vehicles. I have actually heard a judge rule that if you rear ended another vehicle, it is obvious that at some point your were following too close or you would not have collided with the other vehicle. Fact based defenses are difficult to win and rarely do. The key to winning is excluding evidence so the Judge has little to consider and not admitting a violation by testifying. This is another area where having an attorney represent you can help; you will likely not testify (or even need to be present) and accidentally admit to the violation.

If you have already been in a collision, the last thing you need is a traffic ticket on top of that. You need an experience Snohomish County Traffic Attorney on your side. Contact the Law Firm of Lucas D. McWethy to discuss your ticket and options for getting it dismissed.

DV Assault and the No Contact Order

Getting arrested for Assault in the fourth degree is a scary circumstance. There is the fact that you have just been arrested, the question of whether or not the police will hold you in jail, and whether or not this allegation will have a domestic violence (DV) qualifier added to it. If the alleged Assault occurred against a family member, someone you live with, or someone you have had an intimate relationship with, the answer is yes, it will have a DV tag on it. The DV tag can be added to a number of charges including Assault, Malicious Mischief, Reckless Endangerment, Stalking, and much more listed in RCW 10.99.020 (5).

So what does it mean to you if the prosecutor files the Assault in the 4th degree with a Domestic Violence tag on it? Well, if you were arrested in Lynnwood, Washington for Assault 4 DV, this would mean that you were likely held in jail over night or until you could appear in front of the Lynnwood Municipal Court Judge. The Judge would then review the allegations and decide what conditions of release should be imposed, or if you should be held on bail. With the Domestic Violence tag, a no contact order will almost always be entered in against you. This means that upon your release, you may not be able to go home or have any contact with the alleged victim, even if the victim does not want this order. The order is entered in by the Judge, typically at the request of the prosecutor. Have an attorney there to assist you as early as possible is the best chance you have at avoiding no contact order.

The original intent of these no contact orders were to protect people that could not or would not protect themselves. People in a cycle of domestic violence that are so intertwined in the circumstances that they are not able to act in their own best interest. The no contact order allows the State to step in and protect that person while determining if the pending criminal charge is viable. Unfortunately, the use of the no contact order in the criminal realm has exceeding this original intent. It is now common for the court to enter these no contact orders on every Domestic Violence charge unless presented with convincing reason not to. The courts want to err on the side of caution (and avoid any liability). And while the courts are being cautions, families that want to reconcile and work through their difficulties are separated and endure significant financial difficulty (the expense of an attorney and sometimes a second residence for a significant period of time). These no contact orders typically last until the criminal allegations are settled. Violating a no contact order is an additional criminal violation that may carry jail time and revoke probation on the original charge.

What I am describing is a no contact order issued by the judge in a criminal proceeding. There are also no contact orders that can be issued by either the District Court or the Superior Court through a civil proceeding. These cases are typically originated by the victim and are completely different than what I describe above. But I will save the particulars of that for another blog.

If a no contact order has been entered in against you or a family member, sometimes the best way to get the no contact order lifted is to aggressively fight the underlying allegations. Getting a resolution and settling the underlying Assault IV DV will typically end the courts jurisdiction on imposing the no contact order (although there are ways for the court to impose a new one). It is important to your future to fight this allegation and at the very least get the DV tag dropped from the charge. Any criminal conviction with a DV tag can have serious consequences on you future.

If you or a family member of been accused of a Domestic Violence allegation, contact the Law Firm of Lucas D. McWethy to schedule your free case evaluation and consultation. Just because you have been accused of a crime does not mean you have to surrender your future. Call 206-427-4901 to discuss your case.

The Holiday DUI

With the holidays coming up, everybody’s schedule tends to get a little tighter. Juggling work, shopping, cooking, family and all the other obligations that accompany the holidays. While many people take time off this time of year, the Washington State Patrol (WSP) is not one of them. For a number of years now the WSP has increased their DUI patrols, and thus DUI arrests, during the holidays.

This holiday season will be no different. This is especially true because the WSP plans to roll out a new way of testing an individuals breath. The WSP currently uses a machine referred to as the DataMaster. This machine, and its operating system, was developed back in the 80’s and has undergone little advancement since that time. In 2010, the WSP received approval from the legislature to replace the DataMaster with the new Draeger Alcotest 9510 (Draeger for short). Long story short, this new machine requires less maintenance, is more automated, and takes less time to go through the procedures. So the Draeger will allow the Officer to stop, arrest, a process individuals accused of a DUI much quicker and allow the Officer to get back out on patrol. As a Snohomish County DUI Defense attorney, I have concerns about a machine specifically designed to cut time and be more automated (with no increase in accuracy noted), especially when that machine’s breath test reading will be used to convict someone of DUI (sometimes without much additional evidence).

So, with the holidays around the corner, and a new machine for the WSP to test out, be safe. If you are going to consume alcohol, have a designated driver or call a cab (they  are much cheaper than I am). If you are accused of DUI, call an experienced DUI attorney right away. With a DUI arrest, there are many collateral issues beyond just the criminal charge, you need a DUI lawyer that knows these issues and can get out in front of them. Call the Law Firm of Lucas D. McWethy at 206-427-4901 if you or someone you know is accused of a Snohomish County DUI or other Criminal Offense.

Medical Marijuana And DUI

Driving Under the Influence (DUI) law is a complex and confusing set of rules and regulations. The complexity only increases when you add in the Department of Licensing, Insurance, required treatment and the legal system in general. It is helpful to have a Snohomish County DUI attorney involved early to help navigate the issues and make sure there are no surprises. The legalization of marijuana only  increased the complexity of DUI law.

There are many circumstances that can lead to being arrested for DUI. For alcohol and marijuana, there is a presumptive limit (.08 and 5 nanograms of THC). This means that even if you appear to be completely sober, if the test results are above the presumptive level you could be found guilty of DUI. For all drugs and alcohol, the State can still proceed with DUI charges without a test (or a test showing below the legal limit) if they believe they can show that your driving was affected by the drugs or alcohol.

This presumptive limit of 5 nanograms for marijuana, combined with the affected by option if a test is not done, creates a unique problem for medical marijuana users. As the body process active THC, it is metabolized into Carboxy THC (this is an over simplification, but one which the courts follow). Carboxy TCH is stored in the bodies fat cells and can be present for around 30 days. The Carboxy number is not used in determining the presumptive level, only the active THC component is used. However, the prosecutor and the judge will see the Carboxy levels and may make certain assumptions about the individuals use of marijuana.

The difficulty for medical marijuana users comes in the determination of when it is safe for them to drive. Unlike alcohol, there is not a well know percentage indicator (proof for alcohol) that informs the user of the TCH content and how long it will take to process  through the body. Additionally, the THC metabolization is different in every person, especially between those of greatly different weights. Now some dispensaries do a great job of providing THC counts on their product. There are a lot of products that are genetically modified to help certain illnesses or symptoms and have very specific THC levels. These products must be treated just like any other prescription. Speak with the provider and your doctor and determine when it would be safe for you to drive after consuming the product. Your provider and doctor should be able to take into account the specific product (and THC content), your body, and your needs. Having a medical marijuana card will not prevent a DUI if you are either driving while being affect by marijuana (the THC component at least) or have greater than 5 nanograms of THC in your blood.

If you or someone you know has a medical marijuana card and has been charged with a Snohomish County Marijuana DUI, you need the help of a DUI attorney that is familiar with the specific needs of a medical marijuana user. The courts, prosecutors, and even treatment agencies still have a long way go in accepting medical marijuana as an alternative to harsh pharmaceuticals. Contact the Law Firm of Lucas D. McWethy, (206) 427-4901.

Holiday Traffic Tickets

Holiday Traffic Tickets

The Holidays are time for family, friends, and increased patrols. Snohomish County typically increases their patrols the closer we get to Thanksgiving. More traffic enforcement officers means more speeding tickets, no insurance tickets, carpool violation tickets, following too closely tickets and the like. You will be seeing more City Officers on patrol in places like Lynnwood, Bothell, Everett, Mill Creek and Mukilteo. You will also see a significant increase in the amount of Washington State Patrol Officers on the freeways and highways.

The cost of one of these tickets extends far beyond the cost you pay to the city or county. If you drive for a living a single ticket can have serious implications on your driving status and your marketability to be hired. Even if you do not drive for a living, the increase in premiums for you insurance can cost you over a $1000. As a Snohomish County traffic ticket attorney, I can help you keep a clean driving record and lower insurance costs. It is essential to have a traffic ticket attorney in Snohomish County that knows the courts and the prosecutors. Snohomish County is actively pursues their infractions with a full time prosecutor, you need a full time traffic ticket attorney on your side. Contact the Law Firm of Lucas D. McWethy at 206-427-4901 for a free consultation on how I can keep your ticket off your driving record.

I Was Arrested For A DUI In Lynnwood, What Do I Do Now?

Getting arrested for a DUI is a scary situation. From the moment you see the red and blue lights behind you, the situation is largely dictated by the Officer. Every DUI is going to be slightly different depending on the situation. If you were arrested, the Officer believed he had gathered enough evidence (throughout the entire contact with you) to establish probable cause to arrest you for Driving Under the Influence. This blog is not intended to address the specific points of the Officer’s belief (which is best done during a consultation with an attorney), but rather what do after you are released.

For many people this may be the first time you have been arrested, and what to do next is not necessarily easy to figure out. If you were arrested for DUI and either bailed out of jail or were released, you likely received a court date to return to the Lynnwood Municipal Court to be arraigned for DUI. This is a mandatory appearance designed to allow the judge to determine if you are a flight risk or a danger to the community and to impose conditions of release. If you have a prior DUI (or really any criminal history) you need to contact an attorney prior to this hearing. This will allow you to discuss your case specifics with the attorney and determine the best course of action to take to keep you out of custody. Even if this is your first DUI and first criminal offense, it is advisable to contact an attorney to discuss your case. Having an attorney with you at the arraignment phase will also show the court that you are taking the situation seriously and that you are not a flight risk, as you have already paid to retain counsel.

So what is an arraignment? An arraignment is typically your first appearance before the judge. You will be informed of the charges against you, your rights as a defendant, be advised to get an attorney to represent you, and it allows the judge to impose conditions of release to either ensure you show up to court and/or for the safety of the community. Typically for a DUI, the conditions are to have no further criminal law violations, to not drive without a valid license and insurance, to show up at all court dates and to get an attorney (private or public). The judge may also impose an ignition interlock device (the blow and go on your car if you choose to drive), a SCRAM bracelet (a monitoring device that you wear 24/7 that detects alcohol consumption), or may take you into custody and place a bail amount (the amount typically depends on the facts of the case and the criminal history). The conditions of release are an area that having an attorney there advocating for you is essential because the city of Lynnwood will have a prosecutor there advocating for those conditions. After the arraignment, the court will set a pretrial date for you to return. At that return, the judge will expect you to have an attorney and for the case to be moving forward.

While it is easy to get focused on the criminal charge of DUI, it is not the only area you have to be aware of. If the DUI arrest was for alcohol and you either refused to provide a breath sample or your breath sample was over 0.08 (0.02 if under 21); or for marijuana and the blood test shows more than 5 nanograms of THC (0 if under 21), then you also have a civil case against you from the Department of Licensing (DOL). If the DOL shows that you refused to take the test, had a breath sample over .08 (.02 for a minor), or had more than 5 nanograms of THC (0 if under 21), then they will suspend you license for no less than 90 days (1 year if you refused the test or more if you have had any prior DUI license suspensions). To challenge this suspension, you must request a hearing from the DOL. The Officer should have provided you with the form entitled “Request a DUI Hearing.” If you did not received the form, it can be found on the DOL website: http://www.dol.wa.gov/driverslicense/hearingsrequest.html. If you do not send in the form (and the check) then the DOL will automatically proceed with the suspension of your license. Long story short, the only way to save your license is to send in the form and challenge the suspension. Also, be aware that if you have a public defender for the criminal matter, they will not represent you at this hearing (which is held over the phone). So you will need to be prepared to either hire a private attorney or manage a defense on your own. When hired for a DUI, I typically represent my clients on both matters.

You need to also be aware of any tickets that you received because of this incident (speeding, following too close, headlights out etc.). It is not uncommon for some to focus on the criminal matter and forget that they have a ticket pending. These tickets can suspend you license if not paid. If this happens and you are not aware of it, you could be arrested for Driving on a Suspended License in the second degree which would also violate you conditions of release (no criminal law violation) on the DUI. As you can see, things can quickly snowball out of hand if you do not have a good grasp on the situation from the beginning. This is why I like to group all of these matters together for my clients. I prefer to be retained for the DUI, DOL hearing, and the infraction so that we can work together to get the best resolution and there are no unforeseen complications.

It is also important to understand the system you are no intimately involved with. The Lynnwood Municipal Court serves only the city of Lynnwood. It is located at 19321 44th Ave W., Lynnwood WA. The court is located on the 2nd floor, above the police station. The City of Lynnwood has hired (it is not an elected position) Judge Stephen E Moore as the presiding Judge. The City of Lynnwood also does not have its own prosecutor, rather it contracts that service out to The Law Offices of Zachor & Thomas. Zachor & Thomas hold the contracts to prosecute in multiple cities in and around Snohomish County. It is important to know the Judge and Prosecutor because each courthouse has their own local rules and customs. Knowing these local rules and customs is essential to obtaining the best result for you. I regularly practice in the Lynnwood courts and can tell you that each one is distinctly different.

This is only the beginning of this complex and multifaceted process. There will be a lot of work done by both you and your attorney throughout this process. You will likely have to get a drug and alcohol assessment and comply with the treatment recommendations. This can be tricky since there are a lot of agencies out there and not all have your best interest in mind. For some, the evaluation should be done as soon as possible, for others, later in the process. It all depends on the specifics of you case. That is why it is so important to contact an attorney, like myself, and set up a consultation as soon as possible. I offer free consultations so that you can get the information and make an informed decision as to how to proceed.

So, you were arrested for DUI in Lynnwood, what do you do now:

  • Contact The Law Firm of Lucas D. McWethy and set up a free consultation
  • Mark your calendar to be present for you court date
  • Decide whether or not to challenge the DOL
  • Make sure you handle you infractions if you received them
    • Speak to an attorney first as they may be able to handle them along with the DUI
  • Attend you arraignment and plead not guilty (with your attorney)
  • If you have not yet spoken with an attorney, do so.

I offer free consultations and have a flexible schedule to meet your needs. If you have any questions regarding you recent DUI, do not hesitate to call the The Law Firm of Lucas D. McWethy at 206-427-4901.

Should I Really Hire An Attorney To Fight My Traffic Ticket?

It’s inevitable. At one point or another we have all looked in our rear view mirror and seen those ominous red and blue flashing lights. Sometimes they pass us by and other times we’re not so lucky. Now you have a traffic citation and you have to decide what to do with it. Should you just pay the fine, ask to mitigate or should you contest the ticket? And what do each of these options mean? Can a lawyer really help you out, and is it financially worth it?

YOUR OPTIONS are to pay, mitigate or contest. If you pay the fine, you admit the violation and it is reported to the Department of Licensing (DOL). The infraction will likely be on your record for three years and effect your insurance rates for the next three years (if not longer). If you mitigate, you admit the violation but are asking for the judge to reduce the fine because of extenuating circumstances. If your driving record is decent you have a good chance of having the fine reduce, however the violation is still entered as committed, reported to the DOL and effecting your insurance for the next three years. Choosing to contest the ticket is the only option that can keep the ticket off your record and away from you insurance.

CONTESTING your infraction does not mean that you have to stand up and say you were not speeding (or driving in the HOV lane etc.). What it means is that you are not admitting to anything and you are asking for the State or City to prove their case. The State or City then must present enough evidence to prove by a preponderance of the evidence (50.1%) that you indeed violated the traffic code. In reality, this is a very low burden for the State or City to reach. When it boils down to the Officer saying you violated the traffic code and you saying you did not, the Judges typically side with the Officers that they see everyday. This is where having a skilled traffic attorney handle your case can make all the difference.

AN ATTORNEY is trained to first look for procedural errors that may result in keeping evidence out; so it never boils down to your word against the Officer’s. With little or no evidence to present, the City or State’s job is much more difficult. There are many errors that can be found in an Officer’s report that can be used to obtain a beneficial result for you. Some issues may result in a dismissal while other may result in the prosecutor offering to amend you ticket to a non-moving violation (such as inattentive driving). These non-moving violations allow the City or State to still collect revenue, but since they are categorized as non-moving violations, they do not end up effecting your insurance.  The cost of an attorney up front is typically less than the amount you will pay in increased premiums for insurance over the next three years. This is especially important for CDL holders, intermediary license holders, or anyone the drives for work.

Every county, city, Judge, and prosecutor is different. Because of the low burden of proof that is required for the State or City to show a violation, judicial discretion plays a big role. It is not uncommon to have issues result in dismissals in one court, amendments in another, and no consideration in yet another. Having a working knowledge of the courts, prosecutors, and judges is essential to obtaining the very best outcome. I have defended people accused of traffic infraction in King County, Snohomish County, Skagit County and Whatcom county and each court has its own differentiating characteristics. It is the same way with the Cities, from Bothell to Lynnwood to Mill Creek to Mukilteo, all of them have their own distinct set of guidelines and procedures.

Your best chance at having your ticket dismissed is to hire a skilled traffic attorney. If you would like to discuss the specifics of your infraction, please do not hesitate to contact The Law Firm of Lucas D. McWethy, LLC at 206-427-4901.