Illegal Arrests Now Okay?

Illegal arrest

The U.S. Supreme Court is gradually eroding your 4th Amendment rights. Recent opinions give police broader powers to arrest citizens even if they are not breaking the law. Washington State has stronger protections against illegal search and seizure but, Prosecutors will be excited by recent SCOTUS cases.

Want more info? Read the this excellent article by law professor Erwin Chermerinsky as published in this month’s ABA Journal. 

Charged with Possession?

The attorneys at Durflinger Oliver & Associates help those who have been charged with possession of a controlled substance or other contraband. Call (253)683-4180 today to schedule your free consultation.

DUI and Retrograde Extrapolation

Delayed Blood-Alcohol Estimates Draw Criticism in Cases.

The way prosecutors saw it, the Defendant was driving while intoxicated when he raced own a Long Island freeway at 100mph this summer and slammed into a car carrying a family home from church. The fiery wreck killed a father and his two children. The defendant’s blood-alcohol reading, taken Retrograde Extrapolationabout four hours later, was 0.06 which is below the legal limit of 0.08. The Defendant was still charged with Driving under the influence and vehicular homicide because a forensic technique estimated that his blood-alcohol level at the time of the crash was actually 0.12.

This technique is known as retrograde extrapolation and has been used to win convictions in DUI cases nationwide for decades, but has increasingly come under scrutiny by drunken-driving experts as an unreliable measure of a person’s intoxication. Some defense attorneys have even labeled it junk science. A former prosecutor who is representing the Defendant stated that, “Retrograde extrapolation is about as scientifically reliable as astrology. It relies on the assumption that a person’s blood-alcohol content peaked prior to the arrest without any basis to prove that.”

While there are no national statistics to document the use of retrograde extrapolation, prosecutors in many states have offered evidence of estimated intoxication levels at trial, whereas, courts in other states have severely restricted its use requiring prosecutors to use only blood-alcohol readings taken at the time of arrest. Prosecutors who have used retrograde extrapolation swear by it as a proven technique that doesn’t reward DUI suspects for fleeing the scene and avoiding immediate blood-alcohol testing. Experts say the intoxicating effects of alcohol are not experienced until it is absorbed into the blood stream. After a person stops drinking, the blood-alcohol level peaks when the most alcohol has been absorbed and the least amount of alcohol has been eliminated. Defense attorneys argue that alcohol absorption and elimination rates vary widely depending on a person’s gender, drinking habits, the type of beverage, what a person ate and how much, and whether a person had experienced trauma, which sometimes slows the rate.

Don’t trust the junk science. If the police “expert” says a person was drunk, you need to hire an experienced DUI attorney who knows how to attack drunk driving, and DWI, charges. The experienced DUI attorneys at Durflinger Oliver & Associates will meet with you for free and explain your options. Call today, and ask about our convenient payment plans and military discount – 253-683-4180.

Criminal Attorney

Legal Financial Obligations

Legal Fines and Fees

Legal Financial Obligations Can Hurt.

Imagine paying a fine…for 25 years. It can happen, and the Washington Supreme Court just did something about it.

The Court has ruled that two Pierce County defendants will get new sentence hearings because the judges in those cases imposed standard legal financial obligations without looking at whether the defendants could afford them.

Although attorneys for neither defendant objected at their sentencings, they made their case to the court of Appeals, which declined to take up the case. The Supreme Court said it issued a ruling to “emphasize the trial court’s obligation to consider the defendant’s ability to pay.” Chief justice Barbara Madsen wrote that the sentencing judges in these cases used boilerplate language rather than assessing each defendant’s financial circumstances and whether they could pay the amounts. “The Legislature did not intend Legal Financial Obligation (LFO) orders to be uniform among cases of similar crimes,” Madsen wrote in the decision. “Rather it intended each judge to conduct a case-by-case analysis and arrive at an LFO order appropriate to the individual defendant’s circumstances.”

The ruling notes studies that have shown ordering standard financial obligations without consideration of a particular defendant’s case can make it harder for the person to re-enter society. It also increases recidivism rates and makes it difficult for the government to recoup the money, according to the ruling.  Some poorer defendants never pay their legal fees and otherS pay a small stipend. That means the court stays involved in the defendant’s life much longer – possibly creating issues with employment, housing and credit rates – and the defendant could end up paying more in the long run, the ruling states. In fact, it can take some defendants 25 years of minimum payments to pay off LFOs. Failing to pay the LFOs is a bar to expunging or vacating criminal records.

Counties in Washington with higher violent crime rates, smaller populations and those that designate less of their budgets to law and justice assess higher legal financial obligations than other counties, according to the ruling. This imperative under RCW 10.01.160(3) means that the court must do more than sign a judgment and sentence with boilerplate language stating that it engaged in the required inquiry.

If you have been charged with a crime, you not only have to consider the potential loss of liberty but also the fines and fees that go along with a conviction. You need to hire an attorney who understands all the implications of a criminal charge. You can trust the former prosecutors and experienced defense attorneys at Durflinger Oliver to give you all the info and options you need to make the right choices. Call today for a free consultation. We offer military discount and easy payment plans.



Criminal Attorney

 

Should I Hire an Attorney? Yes!

Trash Collector Jail

Kevin McGill, criminal trash collector, Left, and his prosecutor, Right.

How’d you like to go to jail for picking up garbage. 30 days of jail. What if picking up garbage was your job? Kevin McGill, a sanitation worker in an Atlanta suburb has been charged criminally and sentenced to 30 days in jail for doing his job too early in the morning. Kevin should have hired a lawyer.

Mr. McGill was cited for violating an ordinance in a wealthy suburb which prohibits garbage collection before 7 am. Mr. McGill had worked for the sanitation department for three months and had never before been cited for any violation.

Instead of going to court with an experienced criminal defense attorney, Mr. McGill went with a representative from his company who later claimed he was only expecting a fine to be imposed.

Chief prosecutor Bill Riley admitted that the jail sentence was his idea because “fines don’t seem to work…The only thing that seems to stop the activity is actually going to jail.” Jail. For doing his job and picking up trash?!

After taking Kevin’s guilty plea, the court heard from Mr. Riley who claimed there was “automatic jail time for violators” of the noise ordinance. Kevin was “stunned” when he learned he might have to serve jail time for collecting garbage too early.

When Riley asked for the maximum punishment for Kevin, which was 30 days in jail, the judge granted the request without hesitation. Although Kevin tried to explain to the prosecutor and the judge that he had no criminal history and that he had never violated the ordinance before, neither seemed to care or take his lack of history into account.

Kevin, who didn’t have an experienced criminal attorney with him for good advice, grudgingly accepted the punishment, and agreed to serve 30 days in jail. 30. Days.

Fortunately, someone in the courtroom suggested that McGill do weekends in jail so that he could continue working and collecting the suburb’s trash. The court, in its only reasonable act that day, agreed. Kevin began serving his 15 weekend sentence.

An experienced criminal attorney would never have agreed to a sentence that was so clearly disproportionate to the alleged conduct. Kevin has since hired an attorney, who recently filed a motion to withdraw his client’s guilty plea.

After news of McGill’s punishment spread, it was suddenly announced that prosecutors would amend his sentence, saying in a statement, “The actions of the court with regards to Mr. McGill’s sentence for violating the city’s noise laws was disproportionate to a first-time offense.”  “As such, the court has amended its sentence to time served and further probation (is) suspended,” the statement said.

The judge who initially imposed the 30 day jail sentence admitted “There are times when taking a step back provides the opportunity for better perspective…“In retrospect, the actions of the court with regards to Mr. McGill’s sentence for violating the city’s noise laws, was disproportionate to a first-time offense.”

While the judge and prosecutor’s office ultimately acknowledged what every criminal defense attorney already knew, Mr. McGill had already served two weekends before prosecutors and the court admitted their absolutely crazy mistake. Kevin’s response to all of this was that it’s been hard on his wife who had to take care of their children and pets by herself while he was locked up. The Judge and Prosecutor didn’t care about that either when they sent Kevin to jail with violent criminals and thieves.

The moral of the story is this…don’t ever try and defend yourself in a criminal case. An experienced criminal attorney would have known that there was no automatic jail time for violators of this ordinance. The judge and prosecutor took advantage of the fact that Kevin was unrepresented and just didn’t know any better. Fortunately, there was a wide-spread public outcry, or neither the judge or prosecutor would have done anything differently in Kevin’s case.

While Kevin is fortunate that he will not be spending anymore weekends in jail, many who appear unrepresented and are railroaded by the system are usually not so fortunate. If you’re asking “should I hire an attorney?” The answer is YES! Call Natalie Durflinger with any questions about how her firm can help you, or your family, with any legal questions or issues. We offer free consultations and a military discount.



Criminal Lawyer

 

 

 

 

 

Racing Can Be Fun

Racing Attorney

Reckless Driving Racing?

Synopsis ~

Reckless Driving Racing is fun…and illegal.

RCW 46.61.530  states that “No person or persons may race any motor vehicle or motor vehicles upon any public highway of this state. Racing is willfully comparing or contesting relative speeds by operation of one or more motor vehicles, whether or not the speed is in excess of the maximum speed prescribed by law. WPIC 95.04 

Speeding alone is not Reckless Driving, or Reckless Driving Racing. A racing conviction can result in up to 364 days in custody, a 30 day licensing suspension, SR22 requirements, and a fine of up to $5,000.00.

Racing is illegal, but even if you think that you were caught red handed, the prosecutor may not have enough evidence to convict you. Admit nothing and immediately contact an experienced Reckless Driving/Racing attorney, or criminal attorney.

What is Racing?

Any Reckless Driving Racing attorney with a fast car or bike will tell you that comparing speeds with a friend is great fun. But what happens when Johnny Law breaks up the party, impounds your whip and throws you in jail? Should you just plead guilty? Take a plea bargain? Take it to trial? This article will attempt to answer those questions.


What is Reckless Driving Racing in Washington State?

Reckless Driving Racing is a criminal traffic gross misdemeanor, in addition to being major moving violation traffic offense in Washington State.

When a person tries to compare or contest speed by the operation of a motor vehicle, he is guilty of Racing. The penalty for a conviction of this gross misdemeanor can include up to 364 days in jail, a fine of no more than $5,000, and license suspension of no less than 30 days (RCW 46.61.500).

A Motor Vehicle is defined in RCW 46.04.320 as “every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. “Motor vehicle” includes a neighborhood electric vehicle as defined in RCW 46.04.357. “Motor vehicle” includes a medium-speed electric vehicle as defined in RCW 46.04.295. An electric personal assistive mobility device is not considered a motor vehicle. A power wheelchair is not considered a motor vehicle. A golf cart is not considered a motor vehicle, except for the purposes of chapter 46.61 RCW.

We recently represented a motorcyclist who was riding with his Tacoma MC club on the Westbound 512. A WSP aircraft recorded a bunch of riders driving awfully fast and weaving in and out of traffic to be the first to a Mexican restaurant on South Tacoma Way. The video apparently showed quite a few guys racing with each other. The pilot filmed riders individually and as a group, and called troopers on the ground to meet the riders at the Restaurant.

My client was parked and standing next to his bike when the trooper arrived. The pilot, circling in the air about 800’ over the scene positively Identified by client and his friends as the riders he witnessed racing on the 512. The ground Trooper wasn’t so confident, so he didn’t arrest everyone, but he did write up everyone there for Reckless Driving Racing.

The court case was a circus. The Trooper’s video did appear to show very, very small motorcycles moving faster than the cars around them. What you couldn’t make out was the license plate number, make, model, or even colors of the bikes. Furthermore, there were huge breaks in the video where the pilot pointed the camera at other riders ¼ mile from my client and his friends. The case was an absolute cluster and we got a dismissal.

Cops love writing people for Reckless Driving Racing whenever they see someone driving a lowered import with their friends at a speed that even suggests racing. We’ve also seen racing charges where a couple of buddies were simply trying to get home in time to see their favorite show. If you’re stopped for racing, don’t argue with the cop, but more importantly, don’t say anything. Cops stopped hyou because they thought you were breaking the law. No matter what you say, the cops are going to hear you admit to racing. Don’t help them. Don’t say anything. Call an experienced traffic lawyer.

We offer free consultations, military discounts, and clear communications. Call us today to discuss how we can help you fight these criminal charges. You can trust us to give you the truth; the whole story, good, or bad. Call today.

Traffic Lawyer ~ James E. Oliver, Esq.

Traffic Lawyer ~ James E. Oliver, Esq.


James Edmund Oliver, Jr. is a Traffic attorney with over 15 years of experience representing defendants against major moving violation charges. Some of the more common charges he defends against are reckless driving, negligent driving, speeding and speed unsafe for conditions. After serving six years in the Army Reserves, 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 well respected and zealous advocate for a wide variety of clients.

Warrantless Record Searches

Warrantless Search

Prosecutors can snoop even if you’ve done nothing wrong.

Your private records aren’t so private. A Washington law adopted in 1971 allows investigator’s to get a suspect’s bank, phone, email and other records without a search warrant. Prosecutors have been able to get those records without even showing probable cause that a crime has occurred, the standard that applies to search warrants.  Instead, law enforcement can get the information with a subpoena issued under a lesser standard in a secret hearing called a special inquiry. But some judges and justices are having problems with these warrantless searches.

Justices on Washington’s Supreme Court heard arguments over whether that’s a violation of privacy protections in the state constitution. A King County senior deputy prosecutor argued that while a warrant is required to search someone’s home or their actual phone, probable cause should not be required to obtain records a person voluntarily turns over to third parties, such as phone records. Some justices questioned that analysis noting that in many cases phone companies or cloud computing firms maintain virtually everything that’s stored on a phone, making a records search very similar to a physical search. Justice Mary Yu stated,”The distinction you’re drawing between something that exists in the phone and what’s stored offsite is a reality that doesn’t exist anymore.” Defense counsel told the justices that such a vast intrusion into someone’s private affairs must require a more stringent showing by prosecutors than that required under the special inquiry law.

The Legislature created the special inquiry proceedings following a wide-ranging public corruption investigation in Seattle. They were designed to be a more efficient alternative to the grand jury system, which prosecutors found to be expensive and cumbersome. The procedure allows the judge to issue subpoenas for evidence, such as bank or phone records, at the request of a prosecutor who has ‘reason to suspect’ crime. Reasonable suspicion is a lesser standard than probable cause and that’s the problem. Under Washington’s Constitution, people can’t be disturbed in their private affairs without ‘authority of law’. The high court has never ruled on whether a special inquiry judge subpoena meets that standard. Under the federal constitution, such third-party records are not generally protected but Washington’s Constitution is considered more protective of people’s privacy.

Prosecutors have used the special inquiry judge subpoenas as substitutes for warrants. The justices noted that subpoenas are used to obtain records in a variety of legal proceedings, including civil business disputes and divorces, however, the key difference is that the records aren’t obtained by police. Furthermore, the party whose records are being sought has an opportunity to contest the subpoena or narrow the scope. No such opportunity is afforded under the special inquiry law; the person whose records are being searched may not ever learn about it. If the court rules that probable cause is needed to obtain records in criminal investigations, it should also clarify that subpoenas based on less than probable cause are still valid in other settings. The Seattle attorney who challenged the use of special inquiry proceedings stated, “Sometimes you want things to be more difficult and more expensive for the government, to discourage them from sifting through all our records.”



Criminal Attorney

Weed and Driving Okay?

DUI Stoned Driver

False Advertising?

If you want to avoid a car crash, trade a joint for that glass of wine. A study from the National Highway Traffic Safety Administration (NHTSA) found that drivers who used marijuana were at a significantly lower risk for a crash than drivers who used alcohol. After adjusting for age, gender, race and alcohol use, drivers with marijuana in their system were at about the same level of accident risk as those who had not used any drugs or alcohol prior to driving. Apparently, weed and driving are okay.

Interestingly enough antidepressants, pain killers, stimulants and quite a few other legal and illegal drugs do not significantly increase the risk of being in a crash. Alcohol use greatly increases the likelihood of an accident even at modest blood concentrations. In fact, a blood alcohol concentration over 0.05 increases your odds of a wreck nearly seven fold.

The study’s findings underscore an important point: The measurable presence of THC (marijuana’s primary active ingredient) in a person’s system doesn’t correlate with impairment in the same way that blood alcohol concentration does.

The NHTSA study points out that “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.” There are many reasons why detectable drug presence doesn’t indicate impairment the way it does with alcohol. Most psychoactive drugs are chemically complex molecules whose absorption, action and elimination from the body are difficult to predict. Also, there are considerable differences that exist between individuals with regard to the rates with which these processes occur. Alcohol is more predictable. In heavy marijuana users, measurable amount of THC can be detected in the body days and even weeks after the last use, and long after any psychoactive effects remain. Washington Initiative 502, passed in 2012, set a legal limit at which the driver is automatically determined to be impaired at 5 of nanograms of active THC per milliliter of blood. However, this number tells us nothing about whether a person is impaired or fit to drive.

Eyewitness Misidentification

eyewitness misidentification

Eyewitnesses often help convict innocent people.

Eyewitnesses suck. They suck so much because they are the single largest reason why innocent people get convicted of crimes they didn’t commit. According to the Innocence Project, Eyewitness misidentification played a significant role in 72% of convictions overturned through DNA testing. More than 7 out of 10 innocent people were convicted with the help of very confident and very wrong eyewitnesses.

I just lost a trial where the only witness who confidently ID’d my client as the shooter was absolutely, undeniably full of cr**. It didn’t matter to the jury who did mental gymnastics to believe the witness was sixty yards closer than she really was. The jurors said that they believed her because she was so confident. Yeahh, rightttt.

I brought in Dr. Mark Reinitz, Ph.D. a psychologist who is an expert on memory and recall. Dr. Reinitz was awesome on the stand. Unfortunately, the jury really, really didn’t like my client, so they were willing to believe a witness that every other witness contradicted. Pfft.

Dr. Reinitz testified to the following facts:

  • The mind is not a video recorder. You collect fragments of info and put them together in a way that makes sense later. The more fragments you gather, the more accurate the memory will be.
  • Every time we access a memory, we add fragments, and we lose fragments. That’s why memories are less accurate with time.
  • Stress can wipe out memory. Witnesses to violent events are generally less accurate in recalling the situation than witnesses to non-violent events.
  • Post Event Information can influence memory. People frequently take outside information and insert it into a memory, believing that new memory to be accurate.
  • Confidence does not equal accuracy.
  • Weapon Focus. Witnesses frequently focus on the weapon used in a crime and do not pick up other fragments of information because those fragments are less important for survival. That is why victims can often describe quite accurately the gun pulled on them, but are quite wrong in their description of their aggressor.

Eyewitnesses suck. As soon as you learn of an eyewitness in a case, you need to interview that person and lock them down in their story. You also need to find as many other witnesses, and as much objective evidence (audio, video, etc.) as possible. Whatever happens, do not assume that an eyewitness is accurate unless you have strong corroborating evidence. 7 in 10 bogus convictions. 7 in ten.


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. After serving six years in the Army Reserves, 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 well respected and zealous advocate for a wide variety of clients.

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.

Relax, it’s legal to Drink and Drive

DUI/DWI

It’s okay to drink and drive.

Cops, prosecutors and jurors have forgotten that it’s legal to drink and drive. It is only illegal if you are driving under the influence of alcohol, drugs or a combination the two. So go on and have that glass of wine with dinner.

The prevailing attitude begs the question of why everyone is acting like you can’t enjoy a glass of wine with dinner? Police are arresting and prosecutors are charging anyone with DUI who even merely has alcohol on their breath (or the odor of marijuana) whether they are actually impaired or not.

Unfortunately, cops can basically create their own reality with a little help from the Standardized Field Sobriety Tests (SFST). Any mistakes made while performing these tests will arm the prosecutor with all the evidence he needs to try and prove that you were impaired, regardless of your BAC. And good luck finding a jury that understands or actually believes that it is legal in Washington State to consume alcohol and drive.

Our office is seeing more and more people charged with DUIs that are well under the legal limit of .08. I have seen BACs as low as .02 being charged as a DUI, with the prosecutor arguing that the individual, who was over the age of 21, was impaired based on bad driving and poor performance on the SFSTs.

I recently represented a Hispanic client who was charged with DUI even though his BAC was only .05. The prosecutor pointed to the fact that he performed the SFTS poorly as proof of impairment. Unfortunately, the client didn’t speak english and could have followed the cops instructions even though he wanted to. Of course, the cop didn’t put the language problems in his report.

Officers routinely go through the SFSTs in court to show how easy they are to perform. What they don’t tell the jury is that they have performed these tests many times and have muscle memory which allows them to perform them well. The average driver has never performed these tests, will be nervous, and will be performing them on the side of the road with varying conditions, all of which will affect performance. I can’t do the SFSTs completely sober. A lot of people have problems with them, but all cops see is a drunk.

DUI patrols are in full force and they are looking for ANY reason to pull you over if you are on the road after 9:00 pm. If a cop pulls you over for an equipment infraction (taillight out) and you refuse to perform the field sobriety tests, it would be very had to charge you with any crime. If you do choose to perform the field sobriety tests, it will be up to the officer to decide whether he thinks you performed poorly. He’s having you do the tests because he thinks you’re drunk. Guess how he’s gonna see you do the tests? I watch in-dash video every day where officers claim that a defendant swayed, lifted his arms for balance or had difficulty walking a straight line, and yet the video shows the opposite. If a cop asks you to do the tests, you need to immediately demand an attorney.

I typically advise my clients to take the BAC at the station but it is important to speak to your attorney prior to taking this test. You have a right to speak with an attorney at this point and you should exercise that right. If you do not have an attorney that you can reach after hours, you can request to speak with a public defender.

You can depend on the experienced former prosecutors and experienced criminal attorneys at Durflinger Oliver to fight to defend you. Call today for your free consultation and ask about our military discount and easy payment plans.

~ Natalie Durflinger, Partner