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The Washington Criminal Law Blog

Having "Physical Control" of a Vehicle While Under the Influence is a Crime in Washington State

Posted Wednesday, March 7, 2018 by Lizanne Padula.

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Certainly a person who is caught driving, actually operating a motor vehicle, while under the influence of “intoxicating liquor, marijuana, or any drug” may be charged with a DUI. But in Washington State, mere “physical control” over a vehicle while under the influence is a crime.

Physical Control of a Vehicle While Under the Influence

Under Washington State law:

  1. A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:

a. And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506 (Evidence and Tests for Persons Under the Influence of Alcohol or Drugs); or

b. The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person’s blood made under RCW 46.61.506 (Evidence and Tests for Persons Under the Influence of Alcohol or Drugs); or

c. While the person is under the influence of or affected by intoxicating liquor or any drug; or

d. While the person is under the combined influence of or affected by intoxicating liquor and any drug. (RCW 46.61.504(1)(a)-(d)).

The criminalized conduct and legal limits under RCW 46.61.504 Physical Control of Vehicle Under the Influence are the same as RCW 46.61.502 Driving Under the Influence. The only difference in the statutory elements is that DUI requires that a person drive a vehicle and Physical Control of Vehicle Under the Influence requires only that a person be in actual physical control of the vehicle while under the influence.

What does “actual physical control of a motor vehicle” mean? The statute does not define what “actual physical control” means. The following are examples of when a driver may be found to be in “actual physical control” of their vehicle:

• A driver sitting in the driver’s seat in their parked car waiting to sober up before driving.

• A driver sitting in the driver’s seat of his car parked with keys in the ignition.

• A driver sitting in the driver’s seat of a car that had run out of gas.

• A driver sitting in their car on the side of the road with their keys in the ignition.

Whether conduct constitutes a driver being in “actual physical control” of his or her vehicle in regard to violating RCW 46.61.504 is case specific and fact specific. If you are facing charges for Physical Control of Vehicle Under the Influence we urge you to hire an experienced DUI defense attorney.

Affirmative Defenses Against Physical Control Charges

The statute carves out affirmative defenses against charges for Physical Control of Vehicle Under the Influence. It is an affirmative defense if the defendant can “prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person’s breath or blood to cause the defendant’s alcohol concentration to be 0.08 or more within two hours after being in such control.” RCW 46.61.504(3)(a). This means that the defendant must demonstrate that he consumed the alcohol between the time he was in actual physical control of the vehicle and the time his blood alcohol concentration was tested. The Court may only allow a defendant to present evidence of this affirmative defense if the defendant notifies the prosecution “prior to the omnibus or pretrial hearing” of his or her intent to assert this affirmative defense.

Similarly, it is an affirmative defense if the defendant can “prove by a preponderance of the evidence” that the defendant consumed enough marijuana after being in physical control of the vehicle, but before administration of a blood test, to cause the defendant’s THC concentration to be above the legal limit of 5.00. Again, the Court “shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant’s intent to assert the affirmative defense.” RCW 46.61.504(3)(b).

Defending Against Physical Control While Under the Influence or DUI Charges

Between the license suspension, minimum penalties, and the long-term consequences of having a Physical Control While Under the Influence or a DUI on your record, you need to hire a fierce advocate to defend you against the state’s accusations. There are a number of ways to successfully defend against these charges, including the possibility of getting the charges dropped completely or reduced to lesser charges.

Most of the Physical Control and DUI cases we handle at Padula & Associates, LLC are reduced to lesser charges or dismissed entirely. Hiring our experienced DUI defense attorneys can help you get the best possible outcome in your case.

Call us 24/7 at 425-883-3366 or fill out this simple web form to schedule a free consultation with an experienced DUI defense attorney.

For over 20 years, Padula & Associates, LLC has been serving the people of King County, Snohomish County, and throughout Washington State with aggressive criminal defense services.

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Can I Fight Against A Restraining Order?

Posted Monday, March 5, 2018 by Lizanne Padula.

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A restraining order, known formally as a protection order or no-contact order, can have severe impacts on the life of the restrained person. No-contact orders can have an adverse effect on your ability to obtain employment, your ability to carry a firearm, and can lead to further criminal charges if violated (even inadvertently).

What is a restraining order (no-contact order)?

A no-contact order typically involves a mandate that the respondent (the person the Petition is filed against) remain a certain distance away from the petitioner (the person seeking the order) and his or her home, school, or job. Prohibited contact may also include contact via phone, text, email, social media, or even through a third party.

No-contact orders are issued out of criminal cases as either a condition of release or as a separate order. A no-contact order may be issued regardless of sharing housing or having children. The criminal court controls how long a no-contact order remains in place, not the alleged victim; however, the court will not lift the order without support from the alleged victim.

You can and should fight against a restraining order (no-contact order).

If you are served with a Petition for a no-contact order (or any type of protection order), it is critical that you defend yourself against the order being issued. There is a lot at stake when it comes to no-contact orders―it is more than just your ability to contact the petitioner. A no-contact order will go on your record, which can have an adverse effect on securing employment, traveling to Canada and other countries, and obtaining a firearm.

Moreover, once in place, violating a no-contact order can lead to criminal charges and an alleged violation is difficult to defend against. Proof that the order was properly served on you and proof of contact is typically all that is needed to prove a violation. It is not a defense that the protected person initiated or allowed the contact.

We urge you to fight against the issuance of a restraining order. Hire an attorney to represent you at the hearing. You can spare yourself the need to defend against later criminal charges for violating the order.

We can help you defend against a Petition for a No-Contact Order

If you need help understanding a protective order, defending against one, or defending against an alleged violation of a protective order, we can help.

Padula & Associates, LLC suggests a vigorous defense and we have successfully fended off hundreds of these petitions for our clients. Do not take a petition for a restraining order lightly.You need the help of a skilled criminal defense attorney to maximize your chance of defending against a no-contact order. There may be an effective procedural way to successfully challenge the issuance of the order. The skilled attorneys at Padula & Associates, LLC can defend your rights and help you fight for a just resolution. We proudly serve those in King County, Snohomish County, and Washington State.

Call us 24/7 at 425-883-3366, email us at info@paduladefense.com, or fill out our online free consultation form today.

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Criminal Stalking in Washington State

Posted Thursday, March 1, 2018 by Lizanne Padula.

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Criminal stalking in Washington State can occur in a number of ways. Stalking can occur in person or via the internet, or other methods of communication. A few common examples of behaviors that may rise to the level of criminal stalking include:

• Repeatedly following, spying on, or monitoring an alleged victim.

• Repeatedly sending unwanted letters, e-mails, or text messages.

• Leaving unwanted items, like presents or flowers.

• Posting information and/or spreading rumors about the alleged victim on the internet or by word of mouth.

The foregoing are only a few examples of behavior that may lead to criminal charges for stalking in Washington State.

Criminal Stalking in Washington State

Under Washington State law, “(1) A person commits the crime of stalking if, without lawful authority and under circumstances not amounting to a felony attempt of another crime:

(a) He or she intentionally and repeatedly harasses or repeatedly follows another person; and

(b) The person being harassed or followed is placed in fear that the stalker intends to injure the person, another person, or property of the person or of another person. The feeling of fear must be one that a reasonable person in the same situation would experience under all the circumstances; and

(c) The stalker either:

(i) Intends to frighten, intimidate, or harass the person; or

(ii) Knows or reasonably should know that the person is afraid, intimidated, or harassed even if the stalker did not intend to place the person in fear or intimidate or harass the person.” RWC 9a.46.110(1).

To be convicted of stalking in Washing State, it is necessary for the prosecution to demonstrate that the alleged stalker either intended to “frighten, intimidate, or harass” the alleged victim, or that the alleged stalker knew or reasonably should have known that the alleged victim was “afraid, intimidated, or harassed.”

There is no duty for a person to tell an alleged stalker that they do not want to be contacted or followed. It is not a defense to the crime of stalking that the alleged stalker was not given actual notice that the person did not want to be contacted or followed by the alleged stalker. RWC 9a.46.110(2)(a). Also, it is not a defense that the alleged stalker did not intend to “frighten, intimidate, or harass” the person. RWC 9a.46.110(2)(b).

However, it is a defense to the crime of stalking if the defendant is a “licensed private investigator acting within the capacity of his or her license” as provided by Washington State law. RWC 9a.46.110(3).

Under Washington State stalking law, a first offense is typically charged as a gross misdemeanor (unless there are aggravating factors), while repeat offenses are charged as a Class B felony. RWC 9a.46.110(5).

If You Are Facing Criminal Charges

The skilled attorneys at Padula & Associates, LLC know how important it is to defend your rights. Our attorneys are experienced in all aspects of criminal defense in Washington State. We know how to advocate for our clients and to pinpoint the weaknesses in the Prosecution’s case. For more than 20 years, Padula & Associates, LLC has been serving the people of King County, Snohomish County, and Washington State with aggressive and effective criminal defense.

We answer our phone 24 hours a day, 7 days a week. Call us 24/7 at 425-883-3366, email us at info@paduladefense.com, or fill out our online free consultation form today.

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What Happens If I Am Caught Driving With A Suspended License?

Posted Tuesday, February 27, 2018 by Lizanne Padula.

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The State of Washington has some of the strictest laws in the nation against Driving Under the Influence. In our state your license may be suspended after an arrest for DUI and/or for a conviction of DUI.

• After an arrested for DUI your license will be administratively suspended by the Washington State Department of Licensing (DOL) unless you request a hearing to contest the suspension within 20 days of the date you were arrested and the hearing examiner rules in your favor.

• As part of a conviction for DUI, the Court may order suspension of your driver license for 90 days to 4 years. The length of suspension is dependent on prior offenses and the severity of the incident for which you were convicted.

What Happens If I Am Caught Driving With A Suspended License?

Driving while your license is suspended or revoked after a DUI arrest or conviction is a separate criminal offense. You would be facing a new criminal charge for Driving While License Invalidated (RCW 46.20.342). If convicted of driving with a suspended license you will face mandatory jail time.

• First conviction: the person shall be punished by imprisonment for not less than ten days.

• Second conviction: the person shall be punished by imprisonment for not less than ninety days.

• Third or subsequent conviction: the person shall be punished by imprisonment for not less than one hundred eighty days.

• If the person is also convicted of Driving Under the Influence (RCW 46.61.502) or Physical Control of Vehicle Under the Influence (RCW 46.61.504), when both convictions arise from the same event, the minimum sentence of confinement shall be not less than ninety days.

The minimum sentences of confinement required under the Driving While License Invalidated statute “shall not be suspended or deferred.” RCW 46.20.342(1)(a).

How Do I Defend Against Criminal Charges for Driving With A Suspended License?

If you are facing charges for driving with a suspended license (Driving While License Invalidated) your very freedom is on the line. It is critical that you hire an experienced criminal defense attorney to advocate for your rights and freedom. Your criminal defense attorney may be able to get the charges against you dropped or reduced to lesser charges. Ideally lesser charges would not carry a mandatory minimum jail sentence.

Our attorneys have outstanding reputations. Lizanne Padula is a tireless negotiator and a tenacious litigator. Padula & Associates, LLC will fiercely advocate on your behalf. For more than 20 years we have proudly defended the rights of people in King County, Snohomish County, and Washington State.

Call us 24/7 at 425-883-3366 or fill out this simple web form to schedule a free consultation with an experienced DUI defense attorney.

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Strategies to Combat Opioid Epidemic Recommended by Washington State AG, State Patrol, and Prosecutors

Posted Friday, February 23, 2018 by Lizanne Padula.

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The U.S. Department of Health and Human Services (HHS) declared the nation’s opioid crisis a public health emergency. According to the Centers for Disease Control and Prevention, 91 Americans die each day from opioid overdoses. On average, two people die each day from opioid overdoses in Washington state, and tens of thousands of others struggle with addiction.

Recently, Attorney General Bob Ferguson, joined by the Washington State Patrol and the Washington Association of Prosecuting Attorneys, released a report recommending strategies to combat the opioid epidemic. The report entitled Reducing the Illegal Supply of Opioids in Washington State recommends a comprehensive approach to the problem that addresses prevention, treatment, and enforcement. The report was developed by the AG’s Office, Washington State Patrol, and the Washington Association of Prosecuting Attorneys based on information shared at the Summit on Reducing the Supply of Opioids in Washington State in June 2017.

The report states that it “sets out decisive, evidence-based recommendations that policymakers should adopt to curb the tragic effects of this problem.” AG Ferguson is planning to propose three opioid-related bills to the Legislature in January. One bill is to require health care providers to check the state’s prescription-monitoring database before prescribing opioids. The second bill will seek to limit the number of opioids a provider can initially prescribe. And the third bill will give the Attorney General’s Office Medicaid Fraud Control Unit more authority to investigate and prosecute opioid-related Medicaid fraud cases. The proposed legislation is to be consistent with and based on the report’s recommendations.

Other recommendations in the report include expanding law enforcement assisted diversion programs designed to divert those arrested for nonviolent offenses into treatment and enhanced penalties for trafficking strong synthetic opioids, such as fentanyl. The report also recommends the creation of Drug Courts because they can reduce prison sentences for those who receive drug treatment.

Defending Against Charges for Drug Related Crimes

If you are facing criminal charges for drug related crimes, your life and freedom are on the line. At Padula & Associates, LLC we understand what is at stake, and we will zealously defend you against any criminal charges filed against you.

Call us 24 hours a day, 7 days a week at 425-883-3366 or fill out this simple web form to schedule a free consultation. Padula & Associates, LLC has handled drug crime cases at both a Federal and a State level. We know how to assist you in your efforts to combat prosecution.

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