Felony DUI Laws

There is often an outcry for harsher DUI laws. These outcries usually come right after a well publicized accident, a celebrity arrest (Justin Bieber …), or an otherwise public demonstration of the perils of driving under the influence. While these feelings are understandable, the reality is that Washington State has some of the strictest DUI laws in the nation.  For example, DUI is one of the only misdemeanors in Washington State that has a mandatory jail sentence. This means that even if you have a completely clean criminal history, never even been arrested before, but are convicted of a first offense DUI, you will be sentence do jail time. As opposed to Assault in the fourth degree which has no mandatory jail time. There are many additional penalties for a DUI conviction  that can significantly impact your life, school, and work.

Each year there is typically a bill that circulates the house and senate that aims to increase the penalty for DUI’s. This year, House Bill 2280 aims to increase the penalties of a felony DUI from a class C felony to a class B felony. This increase would effect prison time, offender score, and the fine amount able to be assessed. While it may be difficult to find any compassion for an individual that has been charged with a 5th DUI in 10 years, it is important to remember a few things. First, alcoholism (or other possible drug use) is a disease.  Putting someone in prison for the symptom and not addressing the disease does not better the person nor society. Second, there is no requirement that any of the DUI convictions be for the same substance (alcohol, drug, or prescription) or have involved any aggravating factors (accident, passengers, high breath or blood test, etc.). We do not see this sort of escalation for similar misdemeanors such as assault 4, theft 3, or driving while license suspended. At this point in time, HB 2280 has passed both the house and the senate and is awaiting the Governors signature.

DUI’s have been singled out from the rest of our States misdemeanors for a number of reasons. The most often given is because someone could have been injured. Which is true. It is never a good idea, practice, or decision to drive while under the influence. However, my issues is with punishing someone for what could have, but did not, happen. Especially when there are strict laws that specifically address what could have happened (vehicular assault, vehicular homicide etc.). It becomes a discussion of the whether you should be punished for what could have happened rather than what actually happened. Current DUI law has acceleration clauses that make each additional DUI more penalized, has aggravating factors specifically addressed in the statute, and has mandatory jail and license suspensions. Perhaps the laws are strict enough and it is time to start focusing on the underlying issues for repeat DUI’s rather than just increasing the penalties.

If you or a loved one has been accused of a DUI (first offense or multiple offense), you need an experience DUI lawyer that knows the issues and is there to fight for you. Call the Law Firm of Lucas D. McWethy at 206-427-4901 to set up a free consultation. Serving those accused of criminal offenses in King county, Snohomish County, Skagit County, Island County, Pierce County and Whatcom County.

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The Skagit County DUI

One of the most common, and most misunderstood, criminal law violations is the DUI. Take a Skagit County DUI for example. Skagit County consists of many cities, including Mr. Vernon, Burlington, Sedro-Woolley, Anacortes, Concrete and more. If stopped in one of these cities, or on the highways in between, for a suspected DUI you are likely to find yourself facing very serious consequences. Consequences that require a Skagit County DUI lawyer to navigate.

If stopped for a suspected Skagit County DUI: First and foremost know that everything from when the Officer first identified you as a potential DUI while driving until the end of the contact will be aimed at gathering evidence against you. You cannot talk your way out of a DUI, but you can talk yourself into one. The determination of whether or not to arrest you will be based on the observations the Officer makes prior to and during their contact with you. By the time the Officer has contacted you, they have already noted your driving (swerving, slow to start, quick to start, speeding etc.) and your stopping sequence (slow to stop, hit the curb, used blinker etc.). The Officer may even have already formed the opinion that you are likely driving under the influence (which is the lens that the rest of your interaction will be viewed through).  If contacted by a Skagit County Officer for a suspected DUI, hand them your license/registration/insurance (which the Officer will note your proficiency at finding and removing, so keep them in an easily accessible area) and politely refuse to answer any questions. If the Officer asks for you to exit your vehicle, you must comply (and the Officer will observe your balance and proficiency at exiting you vehicle) but you do not have to engage in conversation nor perform field sobriety tests. These will only provide more evidence.

The Myth of the Field Sobriety Test: The field sobriety tests, FSTs, are typically a set of 3 tests that have been approved by the National Highway Traffic Safety Administration (NHTSA) to be used to determine if an individual has a blood alcohol content, BAC, above the legal limit. The science behind these tests is quite debatable, but for our purposes it is important to know that the test will only tell an Officer if an individual likely has a BAC over the legal limit, not if the Officer should release the individual. The three tests (the walk and turn, the one leg stand, and the HGN eye test) all have numerous observations that the Officer makes while having you perform the test (performed only once, so no practice, and typically in the middle of the night on the side of a busy road). I will use the walk and turn to illustrate the skewed nature of these tests. Each observation category only requires one mistake to be completely missed. For example, one observation would be whether the subject touched heel to toe on all 18 steps. If even one out of 18 is missed, the entire observation is missed. Similarly with stepping on the straight line (one misstep out of 18 is a fail). If 2 categories within the observation are missed then the entire test is failed and is an indicator of being over the legal limit. There are a total of 8 categories. These tests are incredibly easy to fail. Which is why most Skagit County DUI Lawyer will tell you to refuse to perform them. And yes you can refuse the FSTs. They are a voluntary test that will be used against you as evidence of intoxication. Some courts have allowed the refusal to perform as evidence of a “guilty mind,” however the evidence gathered by the FSTs is almost always worse then a theoretical guilty mind.

The Portable Breath Test: At the end of the FSTs, or toward the end of the contact, most Officers will request that you blow into their handheld portable breath test (PBT) device. Some use this if they have yet to decide if there is enough evidence to arrest you, others will simply use to strengthen the case they have already developed. Either way, this test is voluntary. There are no consequences attached to not taking it. It will require the Officer to make the arrest decision based on the evidence he has gathered up to that point. The PBT is notoriously inaccurate. So much so that it is only admissible in court to help bolster the Officers probable cause to arrest. It is not allowed at trial. So unless you have had absolutely no alcohol to drink, politely refuse the PBT when offered.

Arrested: Even with refusing the FSTs and the PBT, the Officer may still believe they have developed probable cause to arrest you for suspected DUI. The validity of that decision will be reviewed by your criminal defense attorney and the courts later. But at the time, the Officer has you in custody, is reading you your rights, and taking you back to the station. Do not waive any of your constitutional rights. You have been arrested, there is no talking your way out of it, but you can make things a whole lot worse. You have the right to remain silent and you should do so. You also have the right to an attorney, but you must request an attorney.  The Officer will then put you in contact with one of your choosing or a public defender. There you can discuss whether or not to provide a breath sample at the station. This is the breath test that has ramification, such as a license suspension if you refuse the test or blow over the legal limit. The decision to blow or not is very fact specific and you should talk with an attorney prior to giving a sample to decide what to do. Utilize this right and the additional time it will provide you.

Post Arrest: Depending on the severity of the DUI, your criminal history, arresting agency, and specific Officer, you may have been placed in Jail pending bail or released. Either way you will have a court hearing coming up very quickly, maybe even the next day. If you have any prior DUIs on your record (including priors that have been reduced to a lesser offense), the Skagit County District court will order that you place an ignition interlock device on your vehicle. The prosecutor may also be asking for additional penalties such as a sobriety testing device or bail. While these conditions are typically more severe when the offense is either extreme or there is a criminal history, I have seen very strict conditions placed on first time DUI charges. Having an DUI lawyer present at these hearings is essential to protecting your rights. The conditions may also be more specific depending on if this is charged as a Marijuana DUI, Alcohol DUI, Minor DUI, Physical Control DUI, or Drug DUI.

This is just a brief overview of the complexities of a Skagit County DUI charge. There are many other areas to navigate such as the department of licensing (which will separately suspend your license if not contested within 20 days of the arrest date), probation, treatment and more. If you or a loved one has been accused of a Skagit County DUI, misdemeanor, or felony, call The Law Firm of Lucas D. McWethy for a free consultation.

How do I choose a Snohomish County Lawyer?

Being accused and charged of crime in Snohomish County can be an intimidating situation. whether you are charged with a Mt. Vernon DUI, a Burlington Theft, or Snohomish County felony, you need a Snohomish County Lawyer to represent you from the beginning. But how do you choose a Lawyer? Where do you begin? What questions should you ask? A personal recommendation from someone you know is usually the best starting point, but do your own research as well. The Lawyer you choose is going to have an enormous impact on your case and its eventual impact on your future. Below are a few starting points to determine help you choose a lawyer to best represent you.

What kind of lawyer do you need?  The first step is to determine what kind of lawyer you need. If you have been charged with a crime in Snohomish County, you need a Snohomish County criminal defense lawyer. If it is an eviction, you need a landlord/tenant lawyer. If you want to sue someone for an injury or a harm done, you want either a personal injury lawyer or a civil attorney. There are numerous online resources to help you narrow your search down to the specific category of lawyer you need.

Compile a list of at least 3 lawyers: Utilizing Google, Avvo.com, personal recommendations, or other sources, compile a list of at least 3 lawyers that have the skill you  need. Then, contact them and set of a consultation. Most criminal defense attorneys like myself offer a free initial consultation. This does not mean that you need to set up 3 separate consultations, but at least call the offices and get a feel for how they do business. Is the lawyer willing to speak with you on the phone? How difficult is it get an appointment with the lawyer? Will they discuss fees over the phone or only in person? Trust and compatibility are both necessary for a productive attorney/client relationship. You should be able to get an initial feel for this by placing a phone call to the Law Firm.

Meet with you best candidates: After placing the phone calls, set up a consultation (I recommend in person, however an in depth consult over the phone or skype may accomplish this goal as well). Speak with them about your case, your history, your goals and get their feedback. Are they giving you honest and realistic feedback? Or are they just telling you what you want to hear? It is rare that a criminal charge will be defended without any difficult decisions to make (plea to a lesser charge vs. trial etc). You need a lawyer that is going to be honest and up front, and that starts with the consultation. You want a skilled lawyer, not just a skilled salesman.

Fully discuss fees: This is particularly important if you are paying hourly or based on a percentage if the case is won. Discuss the fees and get it all in writing. Since I am a criminal defense lawyer, I will touch on how we establish fees. The Washington State Bar Association does not allow criminal defense lawyers to base their fees on a contingent fee (meaning we are only paid if we win). So we must either charge hourly or a flat fee. A flat fee is established up front by the attorney making an assessment of the case and the time that will be involved. Some lawyers will also break up their services into flat fee categories. Meaning, this is the price for representation up to a certain established point, then this amount if you want to continue to fight, then this amount for trial. An example of this is that I charge a flat fee for all representation up to the determination to go to trial. The vast majority of cases in Washington State settle by plea agreement prior to trial. I do not believe in charging someone for a service they may not utilize, so I charge a flat affordable fee for representation, then an hourly fee for trial should the determination be made that trial is the way to go. No matter what, get the fee structure in writing and make sure you understand it.

Find an attorney that fits you financial means: If you cannot afford a lawyer, one will be provided to you by the court. However, you do not get to choose your public defender, they are assigned. There are some great public defenders out there, but they are very typically overworked and underpaid. If you are able to retain a private lawyer, you get to choose someone you trust and they are typically mush more accessible. You do not need to be rich or have an immense savings to afford a lawyer. There is a wide range of lawyers that all charge different amounts, with different size retainers, and some, like myself, offer affordable payment plans as well. The cost of an attorney is not always reflective of their skill. Established attorneys that have been in practice for decades can often charge much more. However, laws change rapidly, case-law changes decisions, and Judges and prosecutors are replaced. What worked in criminal defense in 1985 may not be relevant anymore. Speak with the Lawyer to determine their skill, knowledge and expertise. Do not just rely on how long they have been a lawyer.

I hope this helps you on the first step to determining the best Snohomish County Lawyer for you. If you have any questions, please feel fee to leave them in the comment section. If you or a loved one has been accused of a crime in Snohomish County, call the Law Firm of Lucas D. McWethy for a free consultation.

School resource officer had sex with Bothell teen

It is often easy for us to forget that behind a person’s chosen profession, is still a person. And people are flawed. Different professions give us different amounts of power, and responsibility. To quote Spider-man, with great power comes great responsibly. Just about any profession can offer temptation to bend or break the rules. Everything from taking pens from work to embezzling millions to endangering someones life. The more power you have over another, the more oversight must be provided and ultimately the harsher the punishment for the wrongdoing. As a Lynnwood Criminal Defense Attorney, there is legal oversight as well as the Bar Association the monitors attorneys conduct.

This is often my rationale for why police officers must be held to a higher standard then others. A police officer is imbued with the power of the State to act on behalf of the State. This includes the ability to deprive an individual of the property, privacy, liberty, and in the most extreme cases their life. I have a profound amount of respect for most Officers. They do a dangerous job that most of would not. But, the recent trend of poor police work, and in some cases outright criminal conduct, has put good put honest police officer in more danger and under more scrutiny.

Take the recent case of the school resource officer who had had sex with a Bothell Teenager. The Teenager was only 17 when she first had sexual contact with Officer Dione Thompson, then in her 40’s. According to the charging documents, the sexual contact first occurred in the Officer’s vehicle outside of the school library. Because of the age of the teenager and the position of the Officer, consent is not possible. If true, the Officer clearly abused her power and took sexual advantage of the teenager. Taking sexual advantage of a 17 year old is unacceptable, especially when the perpetrator is the Officer tasked with protecting them.

Behind the shield is person, and you do not always know what that person is capable of. Protect yourself by knowing your rights. Treat Officers with respect, many of them are there to protect you, do their job, and go home to their families. But for the ones that blur the line between lawful and unlawful conduct, protect yourself by knowing your rights. If you are the target of a criminal investigation or have already been accused of a crime, contact a Snohomish criminal defense attorney to stand by you. Just because you have been accused of a crime and the evidence paints a bleak picture, does not mean that you have to roll over. Contact the Law Firm of Lucas D. McWethy to receive a free consultation regarding you DUI, Assault 4, Theft or other criminal charge and find out how we can fight to preserve your future. 206-427-4901

The Seahawks DUI

What a great end to the regular season! We had our difficulties early on, but here we are in  the Playoffs again. It is a great time for our City, our State, and our fan base. Be there, be loud and support the team, but be safe as well.

Whenever there is a home Seahawks game, there are also increased DUI patrols. This can be seen throughout the year, and especially during a home playoff run. And the patrols are not limited to King County. There will also be an increased DUI patrol presence in Pierce County, Snohomish County, Skagit County, Whatcom County and Island County.

Many bars will be opening at 9am tomorrow to start the pregame celebration. If you are going join the celebration and alcohol is involved, have a plan. If you pick a designated driver, remember a designated driver means no alcohol. You do not have to be over the legal limit of 0.08 to be arrested and charged with DUI. I always recommend that people keep a cab company’s number saved in their phone.

If you are stopped for a DUI in Snohomish county (or any other county) and have consumed alcohol, be courteous, provide the requested documentation, and do not answer questions or engage in conversation with the Officer. Your entire interaction will be for the purpose of the Officer gathering evidence against you. If requested to perform field sobriety test, they are voluntary and I typically recommend people politely refuse. Same advice if offered a portable breath test at the roadside (which is distinctly different from the breath test at the station, which will have licensing consequences if refused). If arrested and asked to take a breath test at the station, ask to speak with an attorney to discuss your options and specific facts of you stop.

Being arrested for Driving Under the Influence is a scary circumstance that carries severe penalties and licensing consequences. You need a skilled criminal defense attorney on your side from the beginning. A Snohomish County DUI Lawyer will be able to evaluate your case and prepare an aggressive defense that protects your rights. The State prosecutor will be utilizing all of their resources against you, you need someone there to fight for you future. If you are someone you know has been accused of a Snohomish County, or any other county, DUI, call The Law Firm of Lucas D. McWethy at 206-427-4901 to schedule your free consultation.

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.