Olympia DUI Lawyer Blog

A new law takes effect tomorrow in Washington State that will allow the release of seriously ill offenders from prison prior to the end of their sentence. The law does not permit the release of offenders who are serving a life sentence without parole or who have been sentenced to death. The policy behind the bill is purely economic. According to local Olympian AP reporter Rachel La Corte's article, this bill could save the Washington State Department of Corrections (DOC) up to $800,000 in the next few years.

Every Washington State prison is equipped with full medical and dental facilities. Indeed, for many DOC inmates, the only medical care they receive is through the prisons during periods of incarceration. I have heard those sentenced to DOC reference the "tune up" they will get (in the form of medical care) once they reach prison. This irony will not be lost on, John Ray Wilson, a man from New Jersey who suffers from MS and has no health insurance. Wilson sought alternative forms of treatment when all other options grew to costly. Such treatment including bee venom therapy and ingesting cannabis from his home grown marijuana plants. The state discovered Wilson's plants and charged him with operating a drug manufacturing facility. If convicted, he faces up to 20 years in prison, where he would finally have access to medical care. The case has not yet gone to trial, but the Judge has already ruled that Wilson's attorney can not admit evidence that Wilson grew the marijuana in attempt to medicate his own illness.

Olympian Jeff Monson, a mixed martial arts fighter who is currently ranked in the top 15 heavyweight fighters internationally, plead guilty to felony malicious mischief charges in Thurston County Superior Court this week. Monsoon was charged with malicious mischief in the first degree for spray painting anarchy and anti war symbols on Washington's Capitol building. The state's investigation was triggered by photos that appeared in ESPN The Magazine showing Monson spray painting an anarchist symbol on the Capitol in Olympia. Monson is scheduled to be sentenced in October. The state will request that Monson be sentenced to 90 days in jail and $21,894 in restitution. In the second half of the video below, Monson talks about his views as an anarchist.

What happens to your driver's license if you plead guilty to an amended charge of reckless driving or a negligent driving 1rst degree from DUI? In Washington, when you get pulled over for a DUI, the police officer faxes the report he or she creates to the department of licensing. if you blow above the legal limit of .08 or refuse the breath test at the station, the department of licensing will send you a letter stating that they will suspend your license 60 days after the date you get pulled over. If you do not contest that suspension by requesting a hearing, your license will automatically become suspended on that date. If you end up pleading guilty to an amended charge of Negligent Driving in the First Degree, you will face no additional license suspension other than the administrative suspension. If you plead guilty to Reckless Driving, you will face an additional 30 day license suspension on top of the original administrative suspension. It is important that you talk to a qualified DUI attorney who can help you with the specific facts of your case.

In Olympia, Thurston County District Court began a new program last week aimed at helping veterans who wind up in legal troubles. The new Veterans' Court focuses on providing vets who suffer from post traumatic stress disorder (PTSD), traumatic brain injury(TBI), and other problems associated with recovering from the trauma of war with the necessary treatment and support. The veterans in this court wind up with legal troubles, such as assault or domestic violence charges as well as DUI. Rather than merely punishing the behavior in the form of jail time, this program seeks to get defendants out of jail sooner and get them them hooked up with mental health and chemical dependency treatment. The court meets weekly and serves as both a support group for the vets as well as a way to monitor participants' progress. If participants re-offend or stop doing their treatment, Judge Buckley, the veteran court Judge who is a former JAG member and the son of a veteran, has the ability to impose sanction up to making the participants serve the remainder of their suspended sentences.

This program was spearheaded by members of Thurston County's Mental Health Court as well as local public defender Alex Frix, who is the son of a two star general. While growing up, Frix saw the impact that PTSD had on this father and other military members and families, and recognized the need for this specialized court during his representation of veterans charged with crimes in the county. Though veterans previously had the ability to enter mental health court, that court presented some problems for veterans. I previously represented a veteran charged various domestic violence crimes in Thurston County District Court who suffered from both PTSD and TBI. In that case, the prosecutor would not agree to allow my client entrance into mental health court, which is a requirement prior to the Judge allowing entry. The prosecutor felt that though my client suffered from mental health issues, mental health court was not appropriate as this prosecutor viewed veterans mental health problems as different than those defendants who typically wind up in mental health court. Beyond the hurdle of getting prosecutors to agree on mental health court, veterans too often often don't want to enter that court due to the stigma of suffering from mental health problems. Hopefully, now that Thurston County has a court tailored towards veteran specific mental heath issues, veterans can seek comfort in knowing that others who have gone through comparable combat situations have developed similar mental health problems.

Seattle Seahawk Owen Schmitt, who was arraigned on a DUI charge earlier this month pleaded guilty to an amended charge of Reckless Driving this week. Schmitt was sentenced to various terms imposed on every dui conviction including alcohol assessment and follow up treatment as well as a victim's impact panel. Schmitt will also have to perform 24 hours of community service and pay $2,130. Reckless driving does not carry the mandatory jail time that comes with a DUI conviction. It does, however, carry a 30 day license suspension in addition to any administrative suspension the department of licensing imposed upon initial arrest.

The US Supreme Court's recent ruling in Melendez-Diaz v. Massachusetts that prosecutors must call lab chemists to testify in order to admit that chemist's lab reports has played out interestingly in courts throughout the nation. Defense is asking the courts to apply this rule to other less obvious forms of testimony by arguing that the Melendez-Diaz rule not only applies to scientist who create reports when testing substances in drug and DUI charges, but also also to employees who create documentation that is used in litigation. For example, when employees at department of licensing create reports indicating whether or not a defendant had a suspended license at the time he or she was pulled over.

But is the ruling in danger? Among the 5 majority is Justice Souter, who is soon to be replaced most likely by Judge Sotomayor if confirmed. Sotomayor, who though nominated by a democratic President has demonstrated a rather conservative record on criminal law issues, may come down on the other side of the fence with regards to this issue. That, combined with a rather scathing dissent in Melendez-Diaz suggests that this ruling may not be very long-lived. Indeed, the Court announced that next term, it will review the case of Briscoe et al., v. Virginia (07-11191). The issue in Briscoe is whether a defendant's right to confront witnesses is violated when the state presents a report without live testimony of the person who created that report, but notifies defense who that analyst is so it can call that analyst in its case in chief. This issue was rather clearly decided in Melendez-Diaz, with the court ruling that the state has to call such a witness. As such, it makes sense that the only reason the Justices would review this case next term is if they anticipate a ruling that either limits or overrules Melendez-Diaz entirely.

Washington State Patrol officers working out of the Olympia airport are now using airplanes to catch DUI and Reckless Driving suspects. When callers speak with 911 representatives, the 911 worker contacts the operator of "Smokey 3," a plane used by Washington State Patrol. The plane's operator calls the complaining party, and uses the information provided by him or her to track down the suspect vehicle and relay the vehicle's location to law enforcement on the ground. Beyond just tracking down location, Smokey 3 is also equipped with a gyro-stabilized video camera attached to the side of the aircraft. It's called a Forward-Looking Infrared or FLIR camera. According to an NPR article, the camera is "similar to ones used by the military, it has night-vision capabilities and can lock-in on a vehicle zipping down the freeway." The camera records the driver, and prosecutors then have access to these recordings to use against DUI suspects in court. 911 dispatch also has access to the driving the camera records, and relays what he or she sees to law enforcement on the ground. This cutting-edge technology is not cheap. Washington did not have to pony up for this capability out of our budget as Uncle Sam picked up the several hundred thousand dollar bill in the form of a Homeland Security Grant. Washington State is currently the only state that utilizes this technology to apprehend drunk drivers.

A woman was assaulted in Olympia's Priest Point Park this morning. According to the Olympian, the woman was alone in the park at 9:45 am when a man "forced her to the ground an assaulted her." In Washington, assault is either a gross misdemeanor or a felony depending upon the severity of the victim's injuries.

In Olympia, a Judge in Thurston County District Court held a man on bail pending trial for two charges of DUI. Both charges are alleged to have occurred on July 15. David Proffitt was arrested on suspicion of DUI in the Lucky Eagle Casino parking lot Wednesday. After citing him, officer released him to a taxi. Officers told him to leave his car in the lot and not to drive again that evening. Later that evening, he was again pulled over driving the same car near the Lucky Casino.

Mandatory minimums increase upon each DUI, even if they both occur within the same day. Entry of a deferred prosecution is available on only one DUI charge in a person's lifetime. However, if someone gets two DUIs within a 7 day period, he or she can wrap both of them into the same deferred prosecution provided that person has never entered a deferred prosecution before.

In Olympia, The Washington State Supreme Court, in a unanimous opinion, reinstated a $14 million award in a DUI case.

The plaintiff in the case, Bianca Faust, sued The Bellingham Moose Lodge and Alexis Chapman a bartender of the lodge, as well as the Estate of Hawkeye Kinkaide. Kincaide, who was Alexis Chapman's boyfriend, drank at the Bellingham Moose Lodge where he was served by Chapman. There was evidence that had not consumed alcohol prior to arriving at the tavern and that at the time of the collision he was above the blood alcohol content (BAC) legal limit. When he drove away from the lodge, he collided with a car driven by Bianca Faust. The impact killed Kincaide, paralyzed Faust's minor son and injured Faust.

The Appellate Court overturned the $14 million jury award for injuries sustained to Faust and her family. The issue in the case related to the type and level of evidence required to prove that a tavern's bartender(s) negligently continued to serve drinks to a visibly intoxicated patron. The Supreme Court unanimously ruled that evidence sufficient to submit the issue of negligent overservice to a jury may be either direct or circumstantial and that evidence of BAC and autopsy reports can corroborate evidence of postservice appearance and support an inference that a defendant appeared under the influence at the time he was served.

Changes to the Sentencing Reform Act of 1981(SRA) go into effect on July 26th. The Department of Corrections (DOC) will soon supervise every felony offender whose risk assessment places the offender in the two highest risk categories. After August 1, 2009, they will supervise only those felony offenders in the highest risk category OR who have a current conviction for a sex or serious violent offense, are a dangerous mentally ill offender pursuant to RCW 72.09.370, have an indeterminate sentence and are subject to parole, are sentenced pursuant to First Time Offender Waiver or Special Sex Offender Sentencing Alternative(SSOSA) or Drug Offender Sentencing Alternative(DOSA), or if supervision is required pursuant to interstate compact or adult offender supervision. DOC will also supervise those who are sentenced to a select subset of misdemeanors, including sexual misconduct with a minor or communications with a minor for immoral purposes, and assault and violation of a protection order if the offender also has one or more current or prior convictions for a violent offense, sex offense, crime against person, assault in the fourth degree or an prior violation of a protection order.

The new laws were passed in Olympia this year and originate from ESSB 5228, SSB 6162 and SHB 1791. They are expected to result in substantial saving to DOC as the department anticipates reducing the number of offenders supervised by fifty percent. This means that a significant number of convicted felons who were once under the department's supervision will now leave prison or jail without a being under the control of a parole officer. When on DOC supervision, if an offender violates the terms of his or her parole after being released from custody, the department can impose a sanction of more incarceration.

Olympia law enforcement responded to a stabbing around 12:33 a.m. today on the Westside, near the intersection of Garfield and Milroy. The victim, 19 year-old Jose A. Lozano, was found lying in the street. He suffered stab wounds and was bleeding from the face and abdomen. The Olympia police reported that he was treated at the scene then transported to St. Peter's hospital. Lozano underwent surgery for his injuries.

A man in Kansas City was taken to the hospital for blood tests after being arrested on suspicion of DUI. At the hospital, the man stole an ambulance and attempted to flee the scene. Law enforcement chased the man for almost an hour prior to laying down stop sticks. The chase ended after the suspect ran into a pole, causing damage to the ambulance. Even after the crash, the suspect still tried to flee, but was apprehended after being bit by a police dog.

In Washington, upon arrest for suspicion of DUI, an officer will offer the suspect a breath or blood test. You may refuse the test if you choose unless the officer gets a warrant authorized by a judge to perform a blood draw. Refusing a breath test has serious consequences including potential loss of a driver's license and higher mandatory minimum jail time and fines if ultimately convicted of DUI.

Olympia's Ralph's Thriftway owners filed suit in July of 2007 asserting that the rules issued by the Washington State Board of Pharmacy that require pharmacies to deliver lawfully prescribed Federal Drug Administration ("FDA") approved medication violated the owner's First Amendment rights by requiring them to stock Plan B, an oral contraceptive that significantly reduces likelihood of pregnancy if within 72 hours of intercourse. Thriftway's owners argue that requiring the pharmacy to stock and sell the medication violates their First Amendment right to religious freedom. Owner Kevin Stormans "learned that Plan B can prevent a fertilized egg from implanting in the uterus, and because Storman's owners believe life begins with fertilization, Stormans decided it would not sell the drug." Storman, Inc. v. Selecky, 8448-9. The new rules issued by the Board do not require an individual pharmacist to dispense medication in the face of personal objection, though that pharmacist must have another pharmacist available in person or by telephone. Sending patients to another pharmacy is not an allowable option under the rule.

The US Appellate Court reversed the District Court in an opinion issued July 8, 2009. The United States District Court previously issued an injunction which allowed Thriftway and other pharmacies to not sell plan B until the courts ruled on whether the law violated pharmacists' constitutional rights. The US Appellate Court ruled that the District Court's injunction was overbroad as it allowed any pharmacist to refuse to stock or sell plan b for religious or moral reasons, though general morality is not defined or protected by the constitution. The District Court's ruling allowed pharmacists to refuse to dispense Plan B if they immediately referred the patient to the nearest sourse of Plan B. The defendants include various Washington State agencies and boards as well as seven individual people, including Catherine Rosman, a case manager who deals with victim's of domestic violence and sexual assault. Rosman, who has taken the medication after being the victim of sexual assault, is "concerned that refusals to dispense Plan B will compound the trauma that her clients and thousands of girls and women like them will suffer as a result of sexual violence every year in Washington." Among the seven individuals are two HIV positive people who fear that without timely access to Plan B, they and those in similar situations face serious potential health risks.

The Washington State Board of Pharmacy began investigating Ralph's in the summer of 2006. It "questioned Kevin Stormans, requiring a written statement. Though the Board closed that investigation without taking any action, in January 2007, the Board initiated a new investigation against Ralph's." After Stormans filed suit alleging that the rules violate his constitutional protections, the Board began a new investigation of Ralph's under the new rules. Should The District Court decline to reissue the injunction, Ralph's would face potential disciplinary charges if it continues refusing to dispense the drug. Indeed, "Stormans expects that the Board's investigation will result in disciplinary charges, including possible revocation of its pharmacy license, as well as the initiation of an enforcement action by HRC if the preliminary injunction is overturned."

The Appellate Court ruled that the District Court not only issued an overbroad injunction by including morality and including pharmacists other than those who filed suit, but that in reaching its conclusion, the Court applied the wrong level of judicial review to the legal issue. The Appellate Court further ruled that the lower Court abused its discretion in failing to weigh the balance of hardship to the pharmacists by impacting their financial livelihood by potential job loss or loss of pharmacy license with the hardship to the community by women not having access to Plan B. The Court further ruled that District Court abused its discretion by not analyzing the public interest stating that "it may be in the public interest to deny the injunction to the extent that it is likely that sexually active women of childbearing age will be denied reasonable access to Plan B. Likewise, the injunction may not be in the public interest if it would likely cause unreasonable delay to a woman's ability to acquire and use the drug, where such delay may render the drug ineffective in preventing an unwanted pregnancy."

The Appellate Court vacated, reversed, and remanded the case back down to the District Court. As such, the US District Court will now have to rule on the case again, this time applying the correct, more relaxed rational basis review rather than the strict scrutiny review it initially used to analyze the case. The Court will also have to examine the balance of hardships and the public interest.

Stars of two popular 70's sitcoms were cited for DUI within the last week. Eddie Mekka, better known as "The Big Ragoo" Ragusa on Laverne and Shirley was arrested on suspicion of DUI after a car accident in Las Vegas last week. Mekka's arrest occurred one day prior to Joyce Dewitt's citation for DUI. Dewitt, who played Janet on Three's Company, was arrested for DUI on the 4th of July after driving through a barricade in El Segundo, California. What would Mr. Roper think?

On a more serious note, celebrity DUI arrests, though sometimes voyeuristically entertaining, serve as a reminder that DUIs happen to people from all walks of life. It is important to consult an attorney when charged with DUI to ensure that you receive every protection available to you under the law. DUI convictions have serious, long term impacts, including mandatory jail time and a license suspension, and are are not to be taken lightly.

Seattle Seahawk Owen Schmitt pleaded not guilty to DUI last week. Schmitt was cited for DUI on June 20, 2009. His blood alcohol content is alleged to register .151 and .161, twice the "legal limit" in Washington. Schmitt is scheduled for a pretrial hearing in Black Diamond Municipal Court within the next month.

If convicted as charged, Schmitt would face a mandatory 2 days in jail or more if he has prior DUI convictions. Beyond the mandatory minimum jail time, a DUI conviction carries a mandatory chemical dependency evaluation along with follow up treatment, as well as attendance at a victim's impact panel in which speakers discuss how their lives were impacted by a drunk driver.

Those charged with a DUI typically ask if they can enter into a deferred prosecution to avoid having a DUI on their record. Deferred Prosecutions are technically a way to avoid DUI conviction, but they involve a lot of work and a steep time commitment. To enter a deferred prosecution, one is required to obtain a drug and alcohol evaluation in which the substance abuse counselor must determine he or she is an alcoholic. That person must then submit to two years of treatment, including weekly AA meetings, weekly group meetings with a counselor and individual treatment sessions. Prior to a judge allowing someone to enter into a deferred prosecution, the defendant must admit to the court that he or she has a substance abuse problem that resulted in the DUI charge. If the court grants the petition for a deferred prosecution, the defendant must attend two years of treatment, and must not obtain any new law violations for 5 years among other requirements. Upon successful completion of a deferred prosecution, the DUI is dismissed from one's record.

Though technically "dismissed" a successful deferred prosecution still counts as a prior DUI and impacts one's mandatory minimum sentence upon conviction of a DUI in the future. In Washington, a second DUI within 7 years carries a mandatory minimum sentence of 30 days in jail and 60 days on electric home monitoring or 45 days in jail followed by 90 days of electric home monitoring, depending upon blood alcohol content (BAC).

Continue reading "DUI: Why Enter a Deferred Prosecution?" »

Those convicted of DUI in any state could be required to install an ignition interlock device in any their vehicles if the pending highway bill supported by Mothers Against Drunk Drivers(MADD) passes. An ignition interlock device attaches to a vehicle, and requires drivers to blow into the device before starting the vehicle. If more than a predetermined amount of alcohol is detected on the driver's breath, the car will not start. Ignition interlock devices also require the driver to blow into the device at various times while driving to ensure that someone other than the driver does not blow into the machine in an attempt to bypass the driver's BAC level requirement. Blowing into an ignition interlock device for another is a crime in Washington State.

Though highway bills are not mandatory on the states, if a state chooses not to adopt the bill it will not receive highway funding from the federal government. Highway bills and the money that comes attached to adopting them resulted in every state adopting the national drinking age of 21 and the blood alcohol content (BAC) limit of .08.

In Washington State, those convicted of DUI are currently already required to apply for an ignition interlock device license with the department of licensing. Those charged with DUI who are pending trial may choose to get an ignition interlock device license during their administrative license suspension period, which often occurs prior to resolution of the criminal case.

The law in Washington requiring those convicted of DUI to apply for an ignition interlock license applies to first time offenders, regardless of BAC level and lack of criminal history. In Washington, one can be convicted of DUI even if they have a BAC below the legal limit of .08. The government need only prove that someone drove a motor vehicle while "under the influence" of alcohol, which Washington law defines as affecting one's ability to drive by "any appreciable degree." Thus, prosecutors charge DUIs in cases where a person's BAC is below the legal limit, rendering the numerous "don't drink and drive, .08 legal limit" signs misleading and devastating for those who consume a small amount of alcohol and get into an accident on the way home from a restaurant. DUI in Washington State carries a mandatory minimum of at least 1 day in jail and a fine of at least $866 dollars, among numerous other mandatory requirements.

In Thurston County, Washington State Patrol is seeking the driver of a potential hit and run that occurred near Rochester Monday. The drivers of two vehicles died after a pickup truck pulled onto 1-5 from the shoulder, causing one vehicle to swerve and strike a third vehicle. Washington State Patrol says it is unclear whether the driver knew he or she caused the accident.

Hit and run is knowingly being involved in an accident and failing to stop and exchange information and render reasonable aid to the victim. The prosecutor doesn't have to prove that a driver stuck another vehicle to convict a defendant of hit and run. Even if the driver did not strike the other vehicles, he or she could still have committed the crime of hit and run by having knowledge of involvement in the accident. Hit and run resulting in death is a class B felony.