Frequently Asked Questions About Criminal Defense In Washington
I’ve been charged with a DUI in Washington. What next?
When you are charged with a DUI in Washington, there are two fronts to fight on. One is in the Department of Licensing, since if you gave a breath sample over .08g/210 L of breath, you will have your driver’s license suspended, unless you ask for hearing within 20 days of your arrest with the Department of Licensing. At the hearing, which is conducted over the phone, your lawyer can attack the basis for the suspension and try to prevent it from taking place.
The second front is in court. You will be required to appear at an arraignment, and the judge for your case will set the conditions of your release while your case is pending in the court. You and your lawyer can decide whether your circumstances warrant having a trial on the charge.
Both fronts are important, and a lawyer’s help is crucial for the best outcome for your case.
Will I lose my driver’s license if I am charged with a DUI in Washington?
You may have your license suspended or revoked if you took the breath test and the result was over the legal limit, or if you exercised your right to refuse to take the breath test. The length of the suspension or revocation depends on whether you have previously lost your license before for a DUI related reason.
If you are convicted of a DUI in court , your license will be suspended or revoked. The length of time depends on the breath test outcome, and whether you have previously been convicted of a DUI.
What if I did not take a breath test?
You can still be subject to the revocation of your driver’s license in Washington (or privilege to drive in Washington if you have an out of state license) if you did not take the breath test. Again, it is important to request a hearing from the DOL within 20 days of your arrest and to get the assistance of a lawyer.
The penalties in the event of a conviction in court, where a breath test refusal is alleged, are similar to those where a high test result was obtained, but there is a longer period of license revocation.
Are there mandatory minimum sentences for a DUI conviction in Washington?
Yes. The consequences get increasingly harsh, depending on the number of previous convictions for DUI, and the breath test result. Also, previous DUI cases that were reduced to negligent driving or reckless driving count as “prior convictions” in the event of a new charge. “Deferred prosecutions” also count as “prior convictions”. The link above gives the details of the sentencing consequences.
Can I drive after a license suspension or revocation?
Yes. Washington law allows you to drive after a suspension or revocation IF you obtain an ignition interlock license (IIL) from the Department of Licensing. To qualify, you have to provide proof you have had an ignition interlock device (IID) installed in your car, and have an SR-22 certificate filed with the Department by an insurance company.
An ignition interlock device (IID) prevents a car from being started by testing the breath of the person starting the car. As they are now equipped with cameras to see who is providing the breath sample, only the person to whom the equipment is rented can start the car. There are numerous companies who will rent the equipment to you.
How can a lawyer help me with all this?
Navigating both the DOL system and court system when you get a DUI is very difficult without the help of a knowledgeable lawyer. You need someone on your team who knows the system. A good lawyer will analyze your case, look for weakness in the government’s case, lay out your options for you, and help you through both the administrative suspension process and the court process to get the best possible outcome for your situation.
I’ve been charged with domestic violence. What next?
A “domestic violence” charge in Washington can mean many things. The allegations can involve assault, malicious mischief, trespass, or violation of a court order prohibiting contact.
At your first appearance, the court will almost always impose a “no contact” order with the “complaining witness”, which will be in place while the case is pending. These can sometimes be lifted if the judge is satisfied that there is no danger of witness intimidation or injury.
A conviction for a “domestic violence” charge in Washington will in most cases result in the loss of the right to own firearms. It may also lead to difficulties in obtaining certain kinds of employment or obtaining rental housing. Because the consequences can be substantial, and are not always obvious, it is important to consult a lawyer if you are charged with “domestic violence” (DV) in Washington.
I’ve been charged with domestic violence. Can my spouse or significant other “drop the charges”?
Not really. In Washington, criminal charges are brought by the government, either the State of Washington, or the city or town you may live in. While the prosecution is supposed to consider the wishes of the complaining witness in resolving a case, prosecutors and not the “complaining witness” have the final say in whether charges are maintained or dismissed.
Since marijuana has been decriminalized in Washington, can I drive after smoking marijuana?
Since December of 2012, Initiative 502 has decriminalized the possession and use (in a non-public setting) of small amounts of marijuana by adults over 21. However, persons who smoke marijuana who then drive can be charged with DUI, and the Initiative created a “per se” intoxicated limit of 5 nanograms.
This would be measured by a blood draw if a police officer has probable cause to believe that a driver is under the influence of marijuana. For results below that level, a driver could still be convicted only if a jury found that the driver’s ability to control the vehicle was “affected to an appreciable degree.”
I am a medical marijuana patient. Will I still be able to legally grow my own medicine after the effective date of Initiative 502?
The Initiative did not amend the Washington statutes regarding medical marijuana. There is an ongoing debate about the interaction of the two sets of laws and it is anticipated the Legislature may seek to resolve some of the tensions between the two sets of statutes.
For the time being, it appears that a person who has the proper medical authorization could not be prosecuted for possession of marijuana under state law, so long as the patient does not possess more than the limits set out in the statute, namely 15 plants, and 24 ounces of “usable cannabis”.
It is important for all Washington medical marijuana patients to remember that the possession of any amount of marijuana is still illegal under Federal law.
What is the difference between a misdemeanor and a felony?
Under Washington law, there are two categories of misdemeanors, and three categories of felonies. A simple misdemeanor carries a maximum sentence of 90 days in jail, and up to a $1000.00 fine. A gross misdemeanor carries a maximum sentence of 364 days in jail, and up to a $5,000.00 fine. A Class C felony carries a maximum sentence of 10 years in prison, and up to a $10,000.00 fine. A Class B felony carries a maximum sentence of 5 years in prison, and up to a $20,000.00 fine. A Class A felony carries a maximum sentence of life in prison, and up to a $50,000.00 fine.
Are those the likely sentences for those categories of crimes?
No. A maximum sentence is seldom imposed.
For misdemeanor offenses, the court has wide ranging discretion to sentence, although a few crimes, such as DUI, have mandatory minimum sentences that escalate if a person has previously been convicted.
For most felony sentences, the likely sentence is determined by the state sentencing guidelines. These take into account previous criminal history (if any) and the seriousness level given to the crime by the Legislature. Persons who are charged with multiple counts are treated as if they had criminal history. A sentence can also be drastically affected by the presence of a deadly weapon or a firearm, both of which add significant amounts of time to a felony sentence. In drug cases, the sentence can also be affected if the offense takes place in certain areas, such as school zones.
If you have been charged with a crime, the Law Office of Mark W. Muenster can help you assess the potential consequences.
The police want to talk to me about a criminal investigation. Should I talk to them?
NEVER talk to the police about an ongoing investigation without consulting with a lawyer first. You may inadvertently make statements which will aid the prosecution, or something you say may be misinterpreted by the police.
All persons being questioned or interviewed by the police have the right to remain silent, under the United States Constitution, and the Washington State Constitution. If you agree to speak with the police , you may inadvertently “waive” (give up) the protection of the Constitution.
What if the police forget to read me my rights?
The United State Supreme Court has determined that “Miranda” warnings (You have the right to remain silent, anything you say can and will be used against you, etc.) only have to be read to a suspect who is “in custody”, and who is being “interrogated.” The meaning of both terms can vary with different circumstances. So there are many situations where the police interact with civilians which don’t require that the police read you your rights.
Even if the police are required to read you the “Miranda” warnings, their failure to do so will not necessarily result in the exclusion from evidence at a trial of any statements you might make.
It is far better to decline to speak with the police, and assert your right to consult with your own lawyer before making any statement to the police.
Do the police always need a warrant to search my home?
Under the Fourth Amendment to the United States Constitution, and Article I, §7 of the Washington Constitution, a warrant is almost always required to search a home or dwelling. The law recognizes some exceptions to the general rule, however. Like all Constitutional rights, the protection against searches and seizures by the government can be “waived” (given up). For instance, once the police have been admitted to a home by someone with authority to do so, they may be able to do a warrantless search.
In Washington, the police may be obligated in some circumstances, such as a “knock and talk” investigation, to advise a person he/she has the right to refuse consent to enter and search. If you consent to a police entry to your home, your have probably waived your Constitutional protections.
Can the police stop me and search me out on the street?
The rules here get a lot looser, to allow the police to effectively investigate crime, or suspected crime. To conduct a limited “pat down” of a person, (the so–called Terry stop) the police have to reasonably believe that the person they are seeking to frisk has committed a crime , or is about to do so, and is armed and potentially dangerous. To conduct a full search, the police need the higher standard of probable cause to believe that a crime has been committed, which would support a warrantless arrest.
The validity of a search can seldom if ever be effectively contested out in the street, and is likely to result in the police filing additional charges, such as resisting arrest or obstructing law enforcement. Leave the litigation of the validity of a search to your lawyer. If a court determines that the search is illegal under the Washington Constitution, or the United States Constitution, it should refuse to allow the fruits of a search to be admitted in evidence in a trial.
I am facing a felony charge? What can happen to me?
At the first appearance, usually after an arrest or appearance on a summons, the court where the charge is pending will determine the conditions under which a person charged with a felony will be released while the case is pending. A Superior Court rule sets out the criteria for restrictions on release. It is very important for a person to have a lawyer present for this hearing, if possible.
The next hearing is the arraignment, when the accused person enters a plea of not guilty, and a trial date is set, along with a date for a “readiness hearing” to check on whether a case scheduled for trial is actually going forward. The trial date in Washington is subject to the “speedy trial” rule, which is within 60 days if a person is in custody, or 90 days if the person is out of custody. A person can agree to waive the speedy trial rule if your lawyer needs more time to prepare your defense.
If a person is convicted of a felony, after a trial, or by means of a guilty plea, the maximum sentences and sentencing guideline ranges discussed above will determine whether a person is placed in jail or prison.
Conviction for any felony offense will trigger the loss of voting rights, the right to participate as a juror, and the right to possess a firearm. Some misdemeanor offenses also trigger the loss of the right to own a firearm. State law and federal law vary on this point.
How long does it take someone to get out of jail after the court orders their release, or after bail is posted?
Family members can expect a delay of several hours before a person who is ordered released by the court will actually be released from the jail. In felony cases, release after the posting of bail in Clark County will not necessarily occur unless the court has also set all the other conditions of release at the time when the bail amount is determined. A second release hearing is sometimes required by the judge.
For misdemeanor cases, the amount of delay between the posting of bail, and the accused person’s release will usually be shorter, but still may be several hours.
What is a “plea bargain?”
The vast majority of criminal cases that are filed do not end up in a trial, but are resolved by a plea bargain. In a plea bargain, the government agrees to do certain things, such as dismissing counts in a charging document or reducing the charge(s) to ones that carry lesser consequences. The government will usually agree to recommend certain sentencing consequences to the court as part of the plea agreement. In exchange for the government’s action, the accused person gives up his/her right to a trial.
In state court in Washington, the judge is not obligated to follow the recommendation of either party at sentencing, and will sentence within the applicable guideline range, unless there are exceptional circumstances which justify a sentence above or below the guidelines range. The plea bargain is thus not a guarantee of a result, but gives the accused person some assurance about the likely range of a sentence. Before accepting a plea of guilty where a plea bargain is involved, the court should make sure the person who is pleading guilty is aware of all the ramifications of the plea and the rights that are given up in the process.
The client always is the one to decide whether or not to accept a plea bargain, not the lawyer. A good lawyer will help you make your decision, but should not try to make it for you.
Are there differences between being charged in state and federal court?
Lots of them. While Federal court has a sentencing guidelines structure, it is considerably more complex than the Washington guidelines system. Federal sentences tend to be considerably longer as well. The rules of evidence are different, and are usually not as favorable as Washington rules, especially with regard to searches.
The federal courts in the Western District of Washington are in Tacoma and Seattle. Persons held in custody on a federal charge will be held in the Sea-Tac Correctional Center, located between Seattle and Tacoma, near the airport.
Could I get convicted just based on someone else’s story?
A lack of physical evidence can be a weakness in the government’s case, but not necessarily a fatal weakness. If a jury finds the story of the complaining witness convincing beyond a reasonable doubt, it may convict even in the absence of direct physical evidence. Washington law also considers circumstantial evidence, which permits the jury to draw some inferences from a given fact, as being the equal of direct evidence. A good lawyer is important when fighting a “he said, she said” type case.
Can I appeal a conviction for a crime? Do I have to serve the sentence during the appeal?
In Washington, our state constitution guarantees the right to appeal a criminal conviction. The sentencing judge determines what conditions to place on a person’s release while the appeal is pending. For certain types of crimes, however, such as felony sex offenses, a person has to serve the sentence while the appeal is pending.
The Law Office of Mark W. Muenster has extensive 30+ years of experience in handling appeals from felony and misdemeanor convictions. For more details, see the list of appellate decisions in which Mr. Muenster has participated, located elsewhere on our website.
I was convicted of a felony and lost my right to own a firearm. Is there a way to get my rights back?
Washington has a statute that allows you to file a petition in Superior Court to have your rights restored. Persons convicted of sex offenses and Class A felonies do not qualify for this relief. There must have been at least five years since your release from jail or prison before you are eligible.
This is one of the many areas where Federal and Washington law differ. There is no mechanism at present to ask the Federal government to restore your rights to own a firearm, since Congress has not allowed the Bureau of Alcohol Tobacco, and Firearms to provide relief.
The Law Office of Mark W. Muenster will help you in determining whether you are eligible for relief under the Washington statute, and in seeking the court order to restore your rights.
I have an old conviction that is showing up on background checks. Is there anything I can do about it?
Washington residents with a felony or misdemeanor conviction in their history can ask the court to vacate the conviction, subject to certain tests, such as completion of all the terms of the sentence, and a period of good behavior after the conviction. When a conviction is vacated, Washington law allows you to say you have not been convicted. The Washington State Patrol cannot give out information about a vacated conviction. The official court record will not be deleted, but will be updated to show the vacation. Keeping a certified copy of the vacation order is a good idea, since not all background check companies will accurately report criminal history that has been vacated.
For juvenile court history, there is a process to seal the file which works similarly to the vacation statute.
The Law Office of Mark W. Muenster is experienced in seeking this type of relief for clients with older criminal convictions on their record.
I have been falsely accused. Do I really need a lawyer?
A lawyer can really help in this situation, in trying to convince the government that prosecuting an innocent person is never in the interests of justice. You should never try to face the system alone.