Bicycling Under the Influence (The other BUI)

September 29th, 2007 Filed Under Bicycling Under the Influence

In a State that is constantly passing laws that are further restricting citizens rights, bicycling has passed under the radar. In a number of other states you can be convicted for operating a vehicle under the influence (even if it is a bike). In Washington, for now, it is not illegal. According to the statute,
A law enforcement officer may offer to transport a bicycle rider who appears to be under the influence of alcohol or any drug and who is walking or moving along or within the right of way of a public roadway, unless the bicycle rider is to be taken into protective custody under RCW 70.96A.120. The law enforcement officer offering to transport an intoxicated bicycle rider under this section shall:
(a) Transport the intoxicated bicycle rider to a safe place; or
(b) Release the intoxicated bicycle rider to a competent person…

The law enforcement officer may impound the bicycle operated by an intoxicated bicycle rider if the officer determines that impoundment is necessary to reduce a threat to public safety, and there are no reasonable alternatives to impoundment.

A refreshingly sensible law. This is not a call to arms to get hammered and ride your bike. Just nice to know that you can take your bike home from the local Pub instead of your car.

Next Post: Crossing the Border.

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Legislative Efforts for Accountability

September 25th, 2007 Filed Under Legal News

Seattle Times, Sharon Pian Chan reports this morning that Council members have passed a bill that will require the Police Chief Gil Kerlikowske to provide, in writing, why he chooses to overturn a disciplinary action from The Office of Professional Accountability (OPA), the Police Department’s internal-investigations unit. The OPA examines public complaints made against officers. In turn, OPA makes recommendations to the Police Chief regarding the Police conduct. The Police Chief has previously reversed the OPA findings but never had to provide a reason.

“This is to make sure that we not only have a strong system of police accountability but that we also have public trust,” said Councilmember David Della, who co-sponsored the legislation with Nick Licata and Richard McIver.

The Seattle City Police Chief’s Guild may be challenging the legality of the City Councils legislation. Full article at Seattle Times, Council OKs new rule on police discipline.

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Interesting Times in DUI

September 24th, 2007 Filed Under Legal News

Drunken driving cases disputed (Attorneys promise challenges after lab manager’s resignation)
Written by Adam Wilson
Full Article Published in The Olympian

Evidence in drunken driving cases across the state are likely to be challenged because of questions about the state’s toxicology lab manager’s role in checking breath analyzers, defense attorneys say.

The Washington State Patrol and prosecutors say the former manager’s failure to personally check batches of a solution used in breath analyzers has no effect on the machines’ accuracy, because other analysts did test the solution.

But the lab manager, Ann Marie Gordon, signed an undetermined number of legal certificates since 2002 saying she had checked the solution. It is used by police officers to confirm their machines are accurately measuring the amount of alcohol in a person’s breath.

“Defense attorneys across the state now are going to challenge the admissibility of the breath tests,” said Bill Bowman, president-elect of the Washington Association of Criminal Defense Lawyers.

“The bigger implication, in my opinion, is to the credibility of the state,” he added, explaining the state toxicology lab is expected to produce objective, accurate information for use by both the accused person and prosecutors.

“Because now her honesty is in question, any tests she had done, including blood work, could be challenged. Personal credibility is at issue,” Bowman said.

Gordon’s departure and the State Patrol’s decision to remove her certificates from its online database mean more than just challenging breath test results, said Scott Wonder, a Bellevue attorney who handles drunken driving cases.

“Ms. Gordon was the supervisor for all kinds of breath and blood tests,” he said. “It makes you wonder at the very least what corners she cut.”

Adam Wilson covers state workers and politics for The Olympian. He can be reached at 360-753-1688 or awilson@theolympian.com.

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Boating Under the Influence (BUI)

September 23rd, 2007 Filed Under Boating Under the Inluence (BUI)

During Seafair, DUI Attorneys and Criminal Defense Lawyers often are contacted regarding the consequences of Boating Under the Influence (BUI). This last year was particularly interesting because, according to some reports, Officer’s were threatening Boater’s that a refusal of the Breath Test would result in a the Trooper referring the case to the Coast Guard and there would be a 5000 dollar fine. Nevertheless, our advice to clients, despite Police threats, would remain the same: If you are stopped and accused of Boating Under the Influence you should exercise your right to refuse all breath tests. For that matter, you should exercise your right to remain silent, request an attorney during questioning, and refuse any test for sobriety. Remember to always be polite.For boating, there is no licensing consequence from the Dept. of Licensing for a refusing to submit to a breath or blood test. Recent legislation is being bantered about that may require licensing for boating and, as such, have licensing consequence but for now there is none. Perhaps the Officer was confused or mislead. Perhaps he was claiming to invoke Federal or Administrative sanctions for the boating violation. More likely, he was trying to scare the accused into doing what he wanted him to. It is not a crime for a Police Officer to lie.As stated above, at this time there is no licensing repercussion from the DOL for the crime of BUI. It is a misdemeanor with a maximum sentence of 90 days in jail and a 1,000 dollar fine. The crime of BUI is governed by Revised Code of Washington 79A.60.040. It is worth noting that the Judge does not have to impose mandatory minimum sentences. The same is not true in a DUI case. It is possible that the Judge could impose ignition interlock device but such a decision is in the Judge’s discretion (and only applies if you are found guilty of BUI).Note: Any infraction, could affect your insurance. So there are insurance consequences if you are convicted of BUI. In addition, if you seek a Captain’s License or other commercial license from the Coast Guard, a BUI or civil penalty could have an adverse affect.

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Fired Judge Blames Elf for Court Mishaps

September 21st, 2007 Filed Under Legal News

I know it isn’t Washington legal news but it makes for a great read:

Posted Sep 17, 2007, 01:50 pm CDT in the ABA Journal (Law News Now)
By Debra Cassens Weiss

The Philippines Supreme Court has asked a fired judge who claims he is assisted by three elves to stop making threats of “ungodly reprisal.”

The court kicked Florentino Floro Jr. off the bench largely because of his belief in the supernatural, the Wall Street Journal reports. A medical clinic determined that the judge was suffering from psychosis.

Since then Floro has battled to get his job back, appearing on TV and winning converts who seek his healing powers. At the same time, a series of unfortunate incidents have befallen the supreme court justices or their families, including serious illnesses and car accidents.

Floro says the person to blame for the mishaps is one of the elves, “Luis,” a “king of kings” who is an avenger. He told the newspaper that the elves help him predict the future, but he has never consulted them when issuing judicial decisions.

The Supreme Court has not reversed any of Floro’s decisions since firing him.

Edit: Judge Floro has provided a response to this post. Although the response appears to be a collection of everything that has been written about this story to date, there are some interesting points that are made.

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Restoration of Firearm Rights

September 20th, 2007 Filed Under Restoration of Firearm Rights

Do I qualify to have my Firearm Rights restored? The answer that lawyers love to give: maybe. The question is really to broad to answer in one post since there are a number of circumstances where you could lose your firearm rights. Each situation has its own varying levels of complexity. However, here is a very general overview of how it works in Washington State.

If it is a Class A felony or a sex offense, you must seek a Pardon, Annulment, Certificate of Rehabilitation. Future posting will review these processes. This is also true if the crime was committed as a juvenile offender.

If it is a Class B or C Felony the following three conditions must be met: (1) More than 5 years have passed in the community without being convicted of any crime (misdemeanor or felony); (2) No criminal charges are currently pending in any federal, state or local court; (3) The person does not have a prior felony prohibiting the possession of firearms counted as part of the offender score. If these three conditions are met you may be eligible to seek restoration of Firearm Rights.

If the crime is Domestic Violence related and the person is prohibited to own or possess firearms, then the four conditions must be met: (1) More than 3 years have passed in the community without being convicted of any crime; (2) No criminal charges are currently pending in any federal, state or local court; (3) The person does not have a prior felony prohibiting the possession of firearms counted as part of the offender score; (4) The person has successfully completed all conditions of their Judgment & Sentence including any financial obligations.

These are the first thresholds. Now, if you qualify, you must show the court you are worthy. Since the restoration is at the Court’s discretion, you must convince the Court, often through written statements and testimony, that you are worthy of having this right restored.

There is a sweeping exception to what is set forth above. If the conviction is for an offense committed prior to July 1, 1984; an order of dismissal was entered after completion of supervision, and the conviction is for an offense other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances.

Those interested in learning more about restoring Firearm Rights in Washington, can contact me by visiting www.PelleyLawGroup.com.

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Vacating a Misdemeanor Conviction

September 18th, 2007 Filed Under Vacating a Misdemeanor Conviction

First it is important to know that you can only vacate the most recent misdemeanor committed and you can only vacate one misdemeanor. Misdemeanors come in two flavors when it comes to vacating a conviction. There are the run of the mill misdemeanors and there are the misdemeanors that have Domestic Violence (DV) tagged on. As such, both have their own, separate, requirements. There are additional elements that can confuse things but this post provides the broad strokes.

Vacating the non-DV misdemeanors requires the following:

The conviction was not a DUI or Physical Control;
The conviction was not a violation or attempted violation of what is often termed a “sex offense”;
The conviction was not violent offense or an attempt to commit a violent offense;
More than 3 years have elapsed since completion of the terms of the sentence (not the date of conviction), including any restitution requirements ordered by the court;
The person has no criminal charges pending in any state or federal court;
Finally, the person has not committed a new crime in any jurisdiction since the date of conviction.

Vacating a DV Misdemeanor requires the following:

More than 5 years have elapsed since completion of the original conditions of the sentence, including financial obligations and successful completion of any treatment ordered;
The person has no prior DV conviction arising from a separate incident;
The applicant has no criminal charges pending in any state or federal court;

Next post, Restoration of Firearm Rights.

To learn more about vacating a misdemeanor you can contact info@pelleylawgroup.com

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Vacating a Felony Conviction in Washington State

September 17th, 2007 Filed Under Vacating a Felony Conviction

Vacating your criminal history allows you to say that you have never been convicted of a crime. It removes your criminal records from public view in Washington State databases. In order to obtain a vacation of conviction there are a number of conditions. First are the qualifying conditions.

Circumstances under which a felony conviction cannot be vacated:

If the crime is a class A felony.
The conviction is crime against persons.
The conviction is a violent offense.
The person has a new criminal conviction since the date of discharge from supervision.
The person has criminal charges pending in any municipal, state or federal court.
The conviction is for a class B felony and less than 10 years have passed since date of discharge from supervision.
The conviction is for a class C felony and less than 5 years have passed since date of discharge from supervision.

Next, the conditions that should apply:

The person has served all the community service hours and paid all restitution required by the court.
The person has obtained a certificate of discharge.
The requisite number of years has passed since the issuance of the certificate of discharge (10 years for a Class B felony and 5 years for a Class C felony).

It is worth noting that vacating your criminal conviction does not restore your right to possess or own firearms. I will have a future blog post regarding the restoration of the right to own and use firearms. A vacation of conviction also does not prevent subsequent use of the vacated conviction in a later prosecution. In addition, a subsequent juvenile conviction or adult felony, in effect, nullifies the sealing order.

To learn more about vacating a conviction you can contact our firm at info@pelleylawgroup.com

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