Appeal Your NICS Denial

Gun RightsFinally, there is some great news for people whose Second Amendment (2A) rights were improperly denied. The FBI’s The National Instant Criminal Background Check System (NICS) website again has an appeals page. Many firearms owners and hopeful gun purchasers were wrongly denied gun purchases following their NICS check. For the last year, these people had no opportunity to appeal… Until now. If you were denied a purchase, you can appeal your NICS denial.

Halting Gun Sales

In October 2015, NICS’s appeals workers were transferred to other positions within the organization. People who were denied the purchase of a firearm had no recourse. The NRA and other 2A organizations and authorities decried the transfer of employees as a backhanded attempt at preventing legitimate firearms purchases by eligible citizens.

Would be purchasers were out of luck. They could file an appeal, but there were no employees to process the appeal. Those appeals kept rolling in and piling up as frustrated purchases took what steps they could to correct the improper denial of their 2A rights.

Reclaiming Firearms Rights

We’re almost out of the woods now. People who appealed their NICS firearms purchase denial now have a chance at relief. Those who have recently been denied, should feel encouraged to appeal the NICS finding of ineligibility to purchase a gun. Unfortunately, there is still a year and  a half backlog of previously filed appeals.

If you were denied a firearm purchase following your NICS check, there are some things you need to know and do. Make sure that you get any information about the denial that you can. FFLs should give you whatever information they received, which generally isn’t much, but it will help you start the appeal process.

The next thing you’ll want to do is visit the FBI NICS information website here. It’s a pretty easy site to navigate, and it will help you get the information you need to file an appeal. You can definitely start the process on your own, and if you are again denied, you may want to contact an attorney to help you out.

If you have any 2A questions, call the attorneys at Durflinger Oliver & Associates for a free consultation, (253)683-4180.

False-Confession-Lawyer

Fight a Traffic Ticket – By a Traffic Ticket Attorney

Traffic lawyer

Fight your ticket.

Are you one of the 35 million people who receive a traffic ticket each year? Would you like to know how ot fight a traffic ticket? Read on.

Of the 35 million drivers issued tickets each year only 5% are actually contested. About half are dismissed and half see reduced fines or deferred findings or reduced charges that don’t get reported to DOL or insurance companies. Because you’re reading this, you probably got a ticket, and you’re wondering what to do.

My advice is to always demand a court hearing to either fight your ticket/infraction, or at least mitigate it. Your worst case is that you end up paying the same fine indicated on your ticket. Best case is you get your ticket kicked out. Either way you’ll only be out your time. The important thing is that if you win, your insurance will not increase. If you simply pay your ticket, there’s no telling what will happen to your insurance rates.

Any experienced Puget Sound Traffic Attorney will get good results in about 98% of their cases. Most of the time that means keeping an infraction off your record. The rest of the time it means that you pay less money for your ticket. As you can see, just by going to court and contesting your ticket, the odds are swinging in your favor.

Here’s how to do things from the beginning…

When the officer approaches your vehicle he will likely ask you one of two standard questions:

  • Do you know why I stopped you?— Your response should be a polite, “No officer, I do not.”
  • Do you know how fast you were going?– The safest response is simply “I’m not really sure.” As you probably have not had your speedometer calibrated, this is a true and honest answer.

The key element here is to admit anything. Do not minimize your speed while admitting breaking the speed limit. For example, if the cop says that you were doing 60 in a 35, don’t tell him that you were going faster than 35. This is called an admission. The judge will use it against you later.

Have your license, registration and proof of insurance ready when the cop comes up to your window. This way the officer isn’t worried about you reaching in a glove box for an illegal weapon while he is writing your citation.

At this point, some officers will ask to search your car. You can, and should, simply say no. If he threatens to get a search warrant, politely tell him to get one. If he really has a legitimate reason to search your car, then he will do it without asking. Don’t let him bully you with threats of impounding your car, taking your kids, cavity searches, etc. Cops only ask permission when they can’t act without it.

It is also important to remember that you’re not going to talk your way out of a ticket. Cops issue tickets for a living. It’s their job. As soon as a cop’s pen hits the ticket book he is committed to issuing a ticket. There’s no going back.

While the cop is writing your citation, you should start making notes about what happened and where. Try to record the following:

  • Make, model, license plate number and unit number of the cop’s car.
  • Note your location and try to determine the distance between the alleged violation and where you stopped.
  • Even though your citation will list the basic weather conditions, make note of all the weather conditions such as temperature, wind, cloud cover, etc.
  • Who were your passengers? Make sure that they remain totally silent during the entire stop unless they are asked a specific question.
  • Record shirt or jacket color.
  • Record distinctive characteristics about your car such as dents, paint color(s), wheels, etc.
  • Make notes about everything the cop said during the stop. Sometimes the cop who stops you will not be the officer who clocked you with the Speed Measuring Device (SMD).
  • Make notes about the traffic conditions when you were pulled over.

The cop is probably going to give you your ticket to sign. Your signature is not an admission that you broke the law, but simply notice of the infraction and instructions on either paying the ticket, or arranging your day in court. Refusing to sign will not benefit you in any way, so go ahead and sign if asked to.

Some traffic lawyers advise that you ask to see the radar read out. You can if you want, but these cases are won on technicalities and not on the display on a radar after a stop. My sense is that asking to see the display will suggest to the cop that you plan on fighting the ticket, so he might actually do what he’s supposed to, which makes the ticket harder to fight.

Pull away from the scene calmly and safely and use your signal before merging back into traffic. Do not accelerate quickly enough to shoot gravel/debris onto the hood of the cop’s car. That makes them very, very unhappy.

Fight or Pay

Now that you have your traffic citation it’s time to decide whether to Fight or Pay. Remember, even if you go to court to fight and you end up losing, your fine is not going to increase, so there’s no real downside other than your time. You also need to consider the fact that you might be paying the fine plus the added insurance premiums if you don’t beat that ticket. Here are some of the more common reasons for Contesting a Ticket/Infraction:

  • I can’t afford the fine, or I or don’t want to pay it.
  • I don’t want an infraction on my record.
  • I didn’t do it.
  • OK, I did do it but everyone else was too.
  • The cop/trooper was mean to me.

If you fit into one of the above categories, you want your day in court.

Contested Hearing or Mitigation Hearing?

You can either simply pay the ticket, or there are two types of court hearings for a traffic citation:

Pay The Ticket – I’m a law breaker and here’s my money. Please raise my insurance.

Guilty with an explanation – I’m naughty, but let me tell the court why before I pay my money and you raise my insurance.

Contest the Ticket – This is how you get your day in court to challenge the ticket, avoid a fine, and protect your insurance rate.

It is important to remember that Contesting the Ticket, by law, does not necessarily mean you didn’t commit the alleged offense. What it means is that the prosecutor or State now has to prove more probably than not that you did commit the offense. The burden of proof is now on the State and not you. There are a lot of defenses someone can use to beat a traffic infraction.

Should you hire a lawyer?

Yes, you probably should. I’ve watched pretty experienced attorneys in court who don’t understand the case law, judicial personalities and issues unique to traffic infraction defense, and they really botch things up. Different courts interpret case law different, so what works in one court won’t work in some others. It’s important to know what works where. Unfortunately, that knowledge is really only gained by appearing in traffic court every day.

Setting the Court Date

Regardless of how you choose to proceed, you need to return your infraction to the issuing court within 15 days, or the court can find that you have failed to respond. They can then send your case to collections, which makes things a lot more expensive.

If you want to challenge your ticket, you need check the “Contested Hearing” box on your infraction, make a photocopy of the infraction, and envelope with appropriate postage and address. Put the original infraction in the envelope, seal it, and drop it in the mail within 15 days of receiving the ticket. The court will send you a court date.

If you are planning on representing yourself, then you need to also request “Discovery” from both the Court where your hearing will occur, and also from the prosecutor for that Court. This request has to be made at least two weeks before your hearing. Discovery has to be provided to you at least one week before the hearing.

Here is a link to various traffic infraction defenses. You should hire an experienced traffic attorney who will always do a more thorough job than a non-professional, but if you can’t afford the $200 to hire our firm, do your homework, and you’ll have a better chance at prevailing than just about any other person without an attorney.

You can trust the attorneys at Durflinger Oliver & Associates to protect you, your wallet and your insurance rates. Call us today to for your free consultation so that we can discuss all of your options and how best to fight a traffic ticket.

Call Us 253-683-4180

Durflinger Oliver & Associates PS

711 St. Helens Ave.
Suite 209

Tacoma, WA 98402

Fax: 253-683-4184

Email: jim@durflingeroliver.com

Map and Directions


 

Traffic Ticket Lawyer

 

 

 

 

DUI Investigation

DUI Drunk Driving

DUI Investigation

If a cop thinks you’ve broken the law, he can pull you over. Once he pulls you over, he can demand your license, registration, and proof of insurance. He can also run your name to find any outstanding warrants, and to see if your license is current. If, however, he wants to do much more than write you a ticket and send you on your way, then he needs reasonable suspicion that you were involved in criminal behavior.

So how does a cop get to pull you out of your car? The answer is found in State v. Allen, 138 Wn.App. 463,471 (2007). The Allen Court held that an officer can remove a driver from a vehicle stopped for an infraction for two different reasons: (1) Removal is within in the scope of the original traffic stop, or (2) the officer has acquired a lawful, reasonable suspicion that justifies further investigation. Id. At 471. The Allen Court held that an officer’s removal of a driver from a vehicle was not within the scope of traffic stop for a license plate violation, when the driver was questioned regarding the passenger’s identity. The court called the officer’s interrogation of the driver a “fishing expedition”. Id. at 471 (citing State v. Reding, 199 Wn.2d 685 (1992)).

Once the traffic-related purpose of the stop was fulfilled, further detention without a reasonable suspicion of criminal activity was improper. State v. Armenta, 134 Wn.2d 1, 15-16 (1997). If the officer isn’t justified in taking you out of your car, then your attorney might be able to convince a court to suppress any negative evidence that the officer discovered after you got out of the car. See State v. O’Neill, 148 Wa.2d 564, 583 (2003). When “an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.” State v. Kennedy, 107 Wn.2d 1 (1986).

You can trust the former prosecutors and experienced defense attorneys at Durflinger Oliver & Associates to do everything possible to defend you and protect your future. Call today to schedule your free consultation, and ask us about a military discount and easy payment plans.



James E. Oliver, Esq.

James E. Oliver, Esq.

 

James Edmund Oliver, Jr. is a criminal attorney with over 15 years of experience representing defendants in serious criminal cases. Some of the more common charges he defends against are drugs, firearms, assault, and theft. James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as respected and zealous advocate for a wide variety of clients.

A Bad Taint

Pierce county jury

How to taint a jury

The Pierce County legal community just found out that part of the initial jury orientation involved a discussion about safety and what to watch out for while at the courthouse…by two cops. The faces of justice, and concern, and niceness, and taint. As in a tainted jury pool.

Pierce County uses one or two uniformed Sheriff’s Deputies to deliver the safety message to the jury pool. Apparently, the deputy or deputies inform the jury pool what to keep a look out for and potential safety concerns. In Pierce County, you need someone in uniform to tell people not to leave valuable unattended. The potential problem here is not the message, or the content, but the mouthpiece. In this case, Deputy Helpful-Friendly delivers a useful, aw shucks we’re just looking out for your best interest public service speech. Good feelings and warm sentiments abound as the deputy shows that the police care and are looking out for everyone’s best interest.

The message seems entirely innocuous and this author’s tone unreasonable, but wait, there’s more! Who is the first witness that the now empaneled jury hears from? That’s right, it’s Deputy Helpful-Friendly’s brother/sister in blue, Deputy Probable-Cause. How quickly could the juror’s mind return to that helpful safety orientation he/she received from that nice, trustworthy-looking deputy earlier this morning? Such a nice man, so helpful and caring; wasn’t he nice. Oh, and now here is his/her partner, on the stand, testifying for the prosecution. Certainly this deputy is as nice, caring, and helpful as the deputy who was concerned with our safety this morning.

Again, the message is not objectionable; safety is and what to watch for concerning staying safe is important. However, why does this message need to be delivered by law enforcement? Is not there the possibility that by having this information delivered by an officer that the jury pool will view the officer who will testify for the state in few hours as equally helpful and kind? Could we not avoid this potential bias or tainting by simply having jury administration or anyone other than an officer deliver this message? Better yet, why not have an incarcerated individual, in an orange jumpsuit, complete with leg irons and handcuffs, deliver this message to the jury.

~ Ross Brittain, Associate Attorney

Vacating A Misdemeanor Conviction (Clean Up That Record!)

Expungement, expunge, Vacate

Clean Up Your History!

Who doesn’t love a good vacation? Nobody! Everybody loves vacation. This is especially true if you were ever convicted of a crime!

In Washington State, The process of removing a misdemeanor conviction from your criminal history is called vacation. Vacating a conviction has requirements, and it can be done only once in a lifetime on your most recent charge.

Here’s how it works:

  1. The court vacates the judgment and sentence and then dismisses the charge(s) against you.
  2. This gets rid of your conviction.
  3. Once your conviction is vacated, you can honestly say that you were never convicted of the crime.
  4. The conviction is removed from the defendant’s criminal history.
  5. The vacate order is sent to the WSP and FBI, which then update their databases.
  6. Record of the conviction may not be disclosed to any person except other criminal justice enforcement agencies.

While certain rules apply to determine whether a person qualifies to have a conviction vacated, it is important to remember that any decision to vacate a conviction is up to the judge. Generally, if you’ve done what you’re supposed to, the judge will vacate your crimes.

Washington State has several laws dealing with the ability to vacate an adult criminal conviction. Each applies to a specific type of case. Each has its own unique set of factors you must meet to vacate a conviction. In most instances the judge has the discretion to grant or deny a request to vacate a conviction.

RCW 9.94A.640 – Felony Convictions

Washington law allows a person to vacate most class B and C felonies. Class A felonies, violent crimes, and crimes against persons may not be vacated. For class B felonies, you must wait ten (10) years to vacate after receiving a Certificate of Discharge. For class C felonies, you must wait five (5) years. During this time you must not have any criminal convictions of any kind. It is possible to vacate more than one felony conviction.

RCW 9.96.060 – Misdemeanor and Gross Misdemeanor Convictions

Generally, a person must wait 3 years after completing all conditions of sentence to become eligible to vacate a non-DV conviction. For domestic violence offenses, you must wait 5 years after paying off your legal financial obligations, completing probation, treatment, etc. In 2012, the Legislature changed this law to require persons with a DUI reduced conviction (Negligent Driving, Reckless Driving, or Reckless Endangerment) to wait ten years. Certain crimes, like DUI’s and sex crimes, cannot be vacated. You must wait five (5) to vacate domestic violence crimes. You must meet several more requirements to be eligible to vacate a conviction. Unlike the felony law, you may only vacate a single misdemeanor conviction from your record.

If you have any questions about cleaning up your criminal history, you can trust the attorneys at Durflinger Oliver to meet with you for free and explain all your options. We offer a military discount and easy payment plans.

~ Martha McLaughlin, Sr. Associate

 

The New Face Of Gun Control

Tacoma Gun AttorneyWashington Second Amendment lawyers are closely watching developments in Missouri. The “Show Me State” recently organized a four-day Urban Crime Summit at which attendees were to come up with ideas for reducing crime. One of the ideas being floated during this summit was a “gun court” system that would treat differently/harshly not only armed criminals, but CCP holders accused of petty traffic offenses.

As proposed, all cases involving firearms in any capacity would be separated from all other types of criminal cases and would be heard before one of two judges. These two judges would set high, cash-only bonds for defendants and ensure that the matters before them head to trial much faster than normal, non-gun cases.

Armed robbery, assault with a deadly weapon, and homicide by way of a firearm will all land you in front of a gun judge. Unfortunately, if a person with a concealed weapon permit gets into a fight – but never brandishes or uses the gun – they can be charged with assault in the fourth degree, and will end up in gun court.

Moreover, some poor guy with a hunting rifle who gets pulled over and arrested for driving under the influence can also end up in gun court.  This has many Tacoma gun lawyers wondering whether this is yet another assault on our Constitutional right to bear arms. Such legislation is a slippery slope upon which our Constitutional right to bear arms may be further restricted.

Here’s how restrictions are likely to develop: Step one: create a separate court that deals only with crimes in which the defendant had a weapons, or was licensed to possess a weapon.  Step two: set astronomically high, cash-only bail, which ensures that the accused are locked up until released by a judge, jury, jail, or prison. In additional to high bail, the defendant and his attorney would be rushed through the process at a breakneck pace designed to overwhelm defense attorneys. Of course, the accused would also lose their firearms in the process. Step three: make the penalty/sentence for those convicted of the commission of a crime with a firearm severe.

Essentially, steps one through three aims to separate defendants into two categories: those who commit crimes with a firearm, and everyone else.  Every 2nd Amendment attorney will be concerned with equal protection issues and uniform application of the law. For instance, a defendant charged in gun courts may not enjoy the same procedural rights and equal application of the law. That’s because their case proceeds at the speed of sound and any criminal attorney will tell you that it takes time to prepare a case for trial, or resolution.

Defendants are also unlikely to enjoy the same rights (procedural, Constitutional, etc.)  as other non-gun court defendants. Experienced criminal defense attorneys worry that they won’t be able to adequately prepare and defend their clients who are being rushed through the system. Very few people outside the legal system would have any idea how unfair gun courts will be.

Few people would object to stiffer/harsher sentences and penalties for those convicted of a crime while using a firearm. I’m a former prosecutor, and most of our attorneys and support staff in my office have CCP’s, and we want to see punishment for people who use guns to victimize others. Unfortunately, the proposed gun courts, while not directly affecting gun rights currently, could be the first step towards curtailing our right to bear arms. Thus, it is important that we recognize that any potential legislation aimed at curbing gun violence can eventually lead to the infringement of our Constitutional right to bear arms.

Ross D. Brittain, Esq.