What is a compromise of misdemeanor?

A compromise of misdemeanor is a special statute under Washington law. It is located under RCW 10.22.

It applies for any misdemeanor where the offense has a remedy through a civil action (lawsuit). For instance, theft has a civil remedy through a conversion lawsuit. So, a person could enter a misdemeanor compromise for a misdemeanor theft. The same goes for assault, trespass, hit & run, and other criminal allegations where a civil remedy exists.

How it works is that the alleged victim party must be on board and agree with it. The injured party must acknowledge in writing that they have received satisfaction for their injury. This is presented to the court, and upon payment of court costs, the court may dismiss the case. However, the court also has the option of not dismissing the case.

A compromise is not available for certain cases where there is a civil remedy, such as gang graffiti, domestic violence offenses, a crime done with intent to commit a felony, or an offense committed by an officer while doing his or her duties.

In many cases, a compromise of misdemeanor is a great resolution because it results in dismissal of the case. If you are charged with a crime where a compromise is available, it is an option that should be explored.

Baltimore Police Scandal Follow-Up

As a follow-up to this post, the trial of the two Baltimore police officers Daniel Hersl and Marcus Taylor is over. They were convicted on racketeering charges and are awaiting sentencing.

The City of Baltimore must know figure out how to reform its police department.

The main objectives will appear to lean on technology, community oversight, and transparency measures.

The portable breath test vs. the in-station breath test. What is the difference?

In your standard DUI case, the police ask you to do the standard field sobriety tests and then will usually offer you a portable breath test (or PBT).

The police, according to Washington Administrative Code 448-15-030, are supposed to tell you the test is voluntary and is not a substitute for an evidentiary breath test.

You may not know this, but you have already consented to a search of your breath for evidentiary purposes. You did this when you drove on the roads of the State. Through the magic of something called "implied consent." This may be the topic of another post, but will not be further discussed here.

The important of implied consent is that your refusal to submit to the testing can be used against you. So, while the roadside PBT result cannot be used against you in court, a refusal of it can be used against you.

So, what good is the PBT if it cannot be used in court? Well, it can be used by the officer to determine whether he has probable cause to arrest you. So, if you blow over a .08 into a PBT, you can count on getting arrested.

When you get to the station, the police will go through a packet of information containing both your constitutional rights and the "implied consent" warnings. They will give you the opportunity to talk to a lawyer and you should exercise this right. This is a lot of information to process and it may take more than one explanation to understand it.

The in-station test, if done properly, is the one that is admissible in court. It requires two blows into the machine and has more rigorous standards than the PBT. Refusal of this test, also under the implied consent theory, is also admissible against you in court. Also, if you refuse the test, the police have the option of applying for a search warrant for your blood. If the warrant is granted, they will obtain a sample of your blood.

You also have the right to an independent test of your blood. Initially this will be at your expense. But, the State tests are not foolproof, so if feasible, it is wise to request such a test.

Contact a lawyer ASAP after you get out of jail to assist in your defense.

The police want to question me? What should I do?

If the police want to question you, that is usually not good. You really do not know if you are a suspect or a witness. If you are a suspect, you should exercise your right to remain silent.

If you have not seen the James Duane video (link here) regarding whether to speak to the police, it is definitely worth a watch. His sentiment reflects the general attitude of attorneys. You have a 5th Amendment right to remain silent. Exercise your rights.

This does not mean to be these people. Be respectful, but firm in exercising your right. Something as simple as, "Respectfully officer, I am exercising my right to remain silent." Most police should be readily familiar with this right and will respect your wishes.

Police may still try and get you to talk by telling you what other people have said about you. Do not take the bait. Remain silent.

Some police will question you when they believe they already have "probable cause" to arrest you. Thus, the questioning is a sort of icing on the cake where they may gather more evidence against you. Any non-incriminating statements that you make to the police are actually not generally admissible in court, but incriminating statements are. So, in some cases they can only win. Then, when you refuse to speak with them, they arrest you. You may find it tempting to try and talk with them at this point. But if they have already arrested you, you are not going to talk your way out of it. This is the most crucial time to remain silent.

You may have a strong desire to want to "tell your side of the story." Unless your story is I was in another State, here are my receipts, photos of me there, and the phone numbers of all the family members I was with, don't bother. Police do not have to factor in who hit who first or if the car is not in your name. So, unless your defense is a complete one, like I was not there or I reported my ID stolen (which actually happened) and someone else used it, don't bother telling your story.

If the police come to you at another angle, like they pretend they want to talk to you about something else and then start questioning you, be aware that you can exercise your rights at any time. The exercising of a constitutional right cannot be used against you in court.

So, if they say your son has been acting up in school and then shift to, "How did your son break his arm last summer?" Unless the truth is that you were in another State when whatever they are alleging happened or you have a digital recording of the baseball game where he took a bad fall and fractured the arm, this is the time to say, "Respectfully officer, I am exercising my right to remain silent."

What are Miranda Rights? Does my case get dismissed if they were not read to me?

Miranda rights are based in the 5th Amendment right to remain silent and the 6th Amendment right to counsel.

Prior to Miranda, the police did not need to inform a suspect of their right to remain silent and their right to counsel. In Miranda v. Arizona, 384 U.S. 436 (1966), this all changed. One of the driving factors behind the Miranda case was the use of interrogation techniques which at the time were not thought of at coercive. Law enforcement was not (in Miranda) using any physical force against Mr. Miranda. However, the nature of the questioning was in such a setting and was of such a duration that the Court had reason to be wary of the voluntariness of the confession.

Thus, the Court created a rule that before a custodial interrogation was to be allowed to be used against the accused at a trial, law enforcement had to advise the person of their right to remain silent, their right to counsel, and that if they spoke with law enforcement that their statements would be used against them.

So, if the you are in a custodial interrogation setting, typically handcuffs on and in the back of a patrol car (or anything subsequent to that), the police are supposed to read you the Miranda warnings if they plan on using any of your own statements against you. If they do not read the warnings, and you provide incriminating statements, then you may be able to keep your own statements out of your case.

There are many exceptions to the Miranda rule as well. For instance, if your statements are just volunteered (not in response to police questioning), then they may still be admissible against you. Also, statements made without Miranda warnings can still be used to impeach you (if you testify at trial that you did not commit the crime, but you told the police you did, they could use your non-Mirandized statement in to color your testimony at trial negatively). There are also exceptions regarding public safety.

Many people, despite the warnings, still provide statements and confessions to the police. Most lawyers would recommend heeding the warnings provided as they are there for your protection. Most of the time, you will not be able to talk your way out of the charges. Then, any statements you make, even if you may not think they are hurting your case and they actually are, can be used against you.

Unfortunately, not having the warnings read to you does not mean that your case will just be dismissed. If you are charged with a crime, be sure to consult with a criminal defense attorney about your case.  

Baltimore Police Trial: How did this happen for five years?

https://www.nbcnews.com/news/us-news/disgraced-baltimore-police-officer-says-detective-who-was-killed-testifying-n844831

As the Baltimore Police trial involving Baltimore police lying, cheating, stealing, and carrying fake guns to plant on people comes to a close, it brings an important issue to light: how did this go on for so long?

According to the evidence, the conduct of these rogue cops went on for five years. The problems are obvious to anyone who is familiar with the system. It is incredibly reliant on a police officer being honest.

However, being honest can have its downfalls because many cases do have holes in them. Thus, being honest can result in losing a case. So, some police officers discovered an incredibly effective trick: they could just lie. Even in the age of video, many jurisdictions do not have or use video, so the case often comes down to the word of the officer against the word of someone accused of a crime. Someone who may have other criminal history and skeletons. Thus, it often does not go very well for that person.

This is not something new. The testilying police problem has been looked into. One corrupt Baltimore officer summarized the problem: drug dealers probably are not going to come forward anyway. Even when they do, who is going to believe them over a cop?

With the advent of video, body cameras, and dash cameras, how is this still happening? Well, for one, cameras are not required in many jurisdictions. There is very little political will for police accountability in these places. Two, in many of the areas that do have cameras, there is not full disclosure of them, or the police choose when to turn them on or what portions to upload.

Thus, if you have the unfortunate circumstance of a dishonest officer, a body camera under that officer's control is going to make little difference (unless they accidentally record themselves or something).

These dishonest police are the exception to the rule, but this is still a significant problem. Body cameras should be required for all policing interactions and either all information should be available or only a distinct, independent body should control the camera data. While option one may generate a ton of data, and the other would still input people into the system, thus leaving open the possibility of corruption, these are better options than having another Baltimore-like instance.

What is a Department of Licensing hearing? Should I request one?

If you get stopped and arrested for a DUI, the police will typically notify the Washington Department of Licensing who will then take action against your driver's license. This "action" is usually the suspension of your privilege to drive. You have 20 days from the arrest to request the hearing.

The length of the suspension depends on the breath result of the DUI or the result of the blood draw. A breath result of between .08 - .15 will result in a 90 day license suspension. An over .15 BAC result will cause a 1 year license suspension. A refusal result will cause a 2 year license suspension.

If you do not request a DOL hearing, your license will be automatically suspended. If you drive during the suspension period, you could be charged with a crime and be in violation of your release conditions.

The process is that DOL will send a letter to the last known address they have for you notifying you of the suspension, so make sure they have a good address. The law will not care if you failed to update your address and did not receive the letter. You can also check your driver's status on-line on DOL's website.

In order to request the hearing, you must pay DOL their required fee of $375 dollars. This fee is simple to request the hearing. There is a separate fee waiver form that you can fill out as well if you are facing financial hardship. You can request the hearing on-line through DOL's website or via their form (also available on their website).

When you request the hearing, your suspension will at least be tolled until you get a hearing and a decision, which typically takes a few weeks.

At the hearing, you can address a few limited issues. These include the lawfulness of the arrest, the reading of your rights and warnings pursuant to the implied consent statute, the breath test procedure, and the breath test result.

You will then be notified of a decision, usually by mail, and then your license suspension will either be upheld or overturned.

Even if you win the DOL hearing, this is usually not the end of the story. If you get convicted of a DUI, you will face the same license suspensions as listed above based on the BAC result.

Don't forget that you can usually still drive during the suspension period with an ignition interlock license. Occasionally, certain other limited licenses are also available.

It is important to discuss this facet of a DUI case with your attorney!

I got charged with DUI, but I blew under .08?

In Washington, there are two ways that you can be charged with a DUI, even with an under .08 breath/blood test result. The first way is to be under 21 years old. If you get charged with minor DUI, this has less repercussions than a DUI, but it is still a serious charge. This blog post will be focused on the second way: being "affected by" alcohol.

The DUI statute, RCW 46.61.502, lists two methods of committing an alcohol DUI. The first is having a .08 or higher, and the second is to drive while under the influence or affected by alcohol.

The law defines being under the influence or affected by if the driver's ability to drive is "lessened to any appreciable degree."

In order to prove this, the State will attempt to demonstrate outward signs of intoxication, such as a lack of coordination, poor field sobriety test performance, bloodshot/watery eyes, an odor of intoxication, and slurred speech.

These sorts of DUI are often easier to defend against than if there is a breath test result, so if you are charged with a DUI, be sure to consult with a lawyer. 

What is a stipulated order of continuance? Is it right for me?

A stipulated order of continuance (SOC) in a criminal case is essentially a pre-trial contract between you and the prosecutor.

This is typically done for cases in which there are weaknesses in the case or the person just deserves a chance to prove that that they are not a "bad" person.

The SOC typically requires the Defendant to waive certain rights. At a minimum is the right to a speedy trial, but usually more rights are involved, such as the right to a jury trial, the right to present a defense, and other very important rights that one typically would have.

The purpose of giving up these rights is to make it so that the Defendant complies with certain conditions which could include attending treatment/counseling, paying costs, abiding by the law, and anything else the prosecutor wants to see happen to ensure that this pre-trial program is successful for not only the present case, but to prevent future involvements with the criminal justice system.

The flip side is that by waiving the above mentioned rights, if you violate the agreement, you run a substantial risk of being convicted of the crime just as if you had been convicted at a trial. You are then sentenced and can be given jail time, fines, probation, etc.

The major benefit is that for most SOCs, if you complete them, the case gets dismissed. Thus, the main factor to consider prior to entering into this agreement is if you can complete it. Second, is if you did not enter into the agreement, can you win at trial or are there any flaws with the case? That will let you know how strong of a position you are in for bargaining.

It is an important decision to make if you are offered such an agreement to understand what it is and to fully discuss it with your attorney.