A DUI arrest can be a disorienting, overwhelming, and wholly foreign experience. Here are some of the most common questions:
What are the chances of winning my DOL hearing?
The Implied Consent Law (RCW 46.20.308) is the biggest hurdle against your success. Here is an excerpt of the legislature's findings:
“The legislature finds that previous attempts to curtail the incidence of driving while intoxicated have been inadequate. The legislature further finds that property loss, injury, and death caused by drinking drivers continue at unacceptable levels. This act is intended to convey the seriousness with which the legislature views this problem. To that end the legislature seeks to ensure swift and certain consequences for those who drink and drive.”
In December 2014, Seattle DUI Attorney Aaron Wolff spoke at a DUI seminar and covered the Washington State DOL hearings for Seattle & Washington State DUI arrests. Part of the presentation concerned statistical data about driver's who requested an administrative hearing as a result of a DUI arrest.
Between January and September of 2014, a total of 6801 DOL hearings were held for Washington DUI arrests. Out of those hearings there were a total of 1369 dismissals (in which the driver wins). That amounts to a success rate of 20.1%.
Please understand that our success at these hearings is significantly greater than the Washington State average. But even then, you are still at a severe disadvantage. Should you not win the hearing, you may immediately apply for an Ignition Interlock License (IIL Application).
Since the fee to request one of these hearings is a staggering $375, and you only have 7 days from the date of arrest to request the hearing, it is absolutely critical you immediately speak with an experienced DUI lawyer immediately following your arrest.
Why is the DOL success rate so low?
In a criminal case, the prosecutor will have to prove every element of the crime beyond a reasonable doubt. This is the highest legal standard in our legal system. Like the name implies, the jury cannot have any reasonable doubt as to guilt, in order to convict.
However, this is not the case for DOL hearings, which are administrative hearings, where the State of Washington is only deciding whether or not to revoke your privilege to drive for a certain amount of time. Because of this, DOL hearings only have to be decided on a preponderance of the evidence. This is the lowest standard of proof in legal system. The hearing examiner only has to decide that the evidence is more likely than not, in order to suspend your license. In other words, if they believe there's even the tiniest bit more than a 50% chance that the evidence stacks up against you, they're going to suspend your license.
On top of this, DOL hearings are conducted by hearing examiners employed by the DOL. While there are some safeguards in place, it is not too inaccurate to think of this one hearing examiner as your sole judge, jury, and prosecutor.
If I'm most likely going to lose, why is requesting a DOL hearing worth it?
While the odds are against you, having a DOL hearing is still a crucial element to the successful defense of your case.
At Wolff Defense, we subpoena the arresting officer for almost every DOL hearing. They are then required to appear and give testimony under penalty of perjury. This gives us an opportunity to cross-examine the officer, pin down their testimony, and get a whole deposition without the prosecutor who will be handling the criminal case being present. We often discover issues in cases through this technique. Also, the Washington Supreme Court held in Lytle v. Department of Licensing that every person facing a license suspension has this right to cross-examine the arresting officer, so if the officer does not appear for the hearing (which does happen), it's an automatic win!
Additionally, because the stakes are much lower for DOL hearings than a criminal trial, this gives us an opportunity to test out any and all potential legal arguments in a much lower stakes environment. This trial run can make a huge difference in a criminal case, if any of the legal arguments are successful.
What is a Deferred Prosecution?
In Washington State, those charged with a DUI can petition the court for a Deferred Prosecution. There are several requirements in order to be eligible. The primary ones are:
An admission that you suffer from alcoholism, drug addiction or severe mental health issues and will likely re-offend if you do not seek treatment.
Total abstinence from alcohol and all other non-prescribed mind-altering drugs.
Participation in a two year treatment program, that includes an intensive inpatient or outpatient portion.
Participation in an alcoholism self-help recovery support group.
- An evaluation from a licensed chemical dependency counselor stating that you would be a good fit for the program.
- Have an ignition interlock device in your car for one year at a minimum.
After completing the two year treatment program, you are then monitored by the court for an additional three years. At the end of that five year period, if there haven't been any hiccups, the court will then dismiss your DUI charge.
Is a Deferred Prosecution right for me?
At first look, taking the deferred prosecution route can seem like the best deal by a long shot. After all, it results in the charge being dismissed! However, it is an incredibly long and intensive process that costs a sizable amount of money. You will have to pay for the two year treatment program yourself, and that can easily cost several thousand dollars. On top of that, there are other court expenses and an ignition interlock requirement. Getting charged with a DUI can be an expensive process to begin with; going for a deferred prosecution can easily double the cost, if not more.
Even if you successfully complete the program and the charge is dismissed, it will still count as a prior offense in the future, and the Deferred Prosecution will still show on your criminal record. Plus, there are many pitfalls along the way, where the court could kick you off the program and find you guilty of a DUI, if you ever slip up.
At Wolff Defense, we believe the first line of attack should be trying to find a way of getting the case dismissed. While that does happen from time to time, it is not common. The next goal would be to see if we could successfully negotiate a plea to a reduced charge, like Reckless Driving or Negligent Driving First Degree. This minimizes the overall impact on your life and bank account significantly, and preserves your option to pursue a deferred prosecution if you are ever charged with a second offense DUI. The deferred prosecution becomes a much more viable option on a second offense, because your chances of a reduced charge are decreased significantly and the mandatory minimum penalties are significantly higher.
And the important thing to remember is that you only get one deferred prosecution a lifetime in Washington. And while a person who gets their first DUI might think it will never happen again, studies indicate their is a significant chance of a second one occurring. So the general rule of thumb is a deferred prosecution is never a good option for a first offense DUI.
Does it matter which law enforcement agency arrested me for a Washington DUI?
Yes! It is a major part of the case. If a Washington State Trooper arrests you, that county's prosecutor will take the case. (Likewise, if a County Deputy made the arrest.)
Also, different prosecutors file their cases in different ways. King County prosecutors usually file cases via investigation, so you have a few weeks for the first court summons to even appear in your mail. On the other hand, if a City of Seattle police officer makes the arrest, you'll be notified almost immediately and your first court appearance occurs a few days later. Although during the pandemic, there is typically several month delay.
Finally, how prosecuting agencies treat Washington DUIs is anything but uniform. Some prosecuting jurisdictions are more willing to accept plea bargaining than others. In fact, two similar cases that share near identical fact patterns and breath test results could result in different outcomes if they occur in different jurisdictions. The differences between jurisdictions and prosecutors is precisely why it is so important to hire a local Seattle DUI Attorney, or an attorney in the local jurisdiction you are facing charges.
What is an alcohol evaluation in Washington DUI law?
The court requires anyone convicted of an alcohol-related driving offense request (DUI, or a DUI amended to a lesser offense) to obtain an alcohol/drug evaluation from a state-certified agency. The evaluator will consider the following: police report, breath/blood report, a copy of the arrested driver's criminal record, and their driving record in case there are any prior alcohol/drug charges.
Before you meet with the evaluator, you first need a urinalysis to identify any alcohol or non-prescription drugs in your system. Beware, these new screenings can detect alcohol up to 96 hours prior in a person's urine. You also must complete a MAST/DAST (Michigan Alcohol Screening Test) screening test, consisting of 22 questions about your exposure to alcohol. DAST (Drug Abuse Screening Test) consists of 20 questions about your exposure to drugs. You must also complete a questionnaire about your history with alcohol and/or drugs.
Once you have completed the written evaluation, you will meet with the evaluator who will ask you about family history of addiction and alcohol and drug use patterns.
Diagnosis involves three basic levels:
- Insufficient evidence of alcohol/substance abuse – “NSP” in common parlance, stands for “no significant problem.” Treatment recommendations are usually one 8-hour day of alcohol/drug information school.
- Alcohol/drug abuse – If you have a tendency to misuse or abuse drugs but are not addicted the treatment for SP1 (standing for significant problem level 1) requires a treatment program that usually lasts 6-12 months. You will also have group and individual counseling once to twice each week, and must abstain from drugs completely during treatment term. The treatment agency assigns random urinalysis to ensure and monitor abstinence.
- Alcohol/drug dependent – You will face a nine-month or two-year intensive outpatient treatment program (or a 21-28 days in-patient program followed by outpatient treatment). Called “SP2″ (significant problem level 2), there are two basic phases: Phase 1 includes 72 hours of group or individual treatment lasting 8 to 12 weeks. Phase 2 lasts six months and consists of weekly group/individual sessions.
For the entire nine months, you must abstain from alcohol and non-prescribed drugs completely. You must submit to random urinalysis tests as well. Plus, you must attend two weekly AA (Alcoholics Anonymous) or NA (Narcotics Anonymous) meetings or other self help recovery group sessions. You will need to prove that you attended such treatment.
NOTE: This two-year treatment equates to the first of two phases mentioned above, with the addition of a phase three: monthly group/individual session lasting 15 months.
All the conditions listed above remain. If you are found dependent and you want to petition the court for a deferred prosecution, you are required to finish the two-year treatment program.
It's not hard to find state-certified agencies that offer alcohol drug evaluations in Washington because there are many. We highly suggest contacting a DUI attorney before taking an alcohol/ drug evaluation. They can cost anywhere between $75-$200, and many agencies tend to label people and stigmatize them, making it easier to commit them to long-term treatment.
Should I just Plead Guilty and get it over with?
Never plead guilty prior to consulting with an experienced DUI lawyer. It is common to feel ashamed after being arrested for DUI. After all, a person likely has a breath test ticket showing their alcohol level was well above the legal limit. But you never know if there's evidence (or a lack of evidence) unlawfully gathered, or if regulations and protocols were not followed which would warrant its suppression.
By pleading guilty, you've sealed your fate. Call first to speak with Seattle DUI Attorney Aaron Wolff and proceed with the right information.
Even if there are no potential issues that could cause additional charges, Aaron Wolff never advises you to plead right away. That's because he believes his clients hired him to vigorously fight to protect their interests. It's easier for anyone to plead right away without any representation or effort. But he was hired for a reason. He can create opportunities by challenging the prosecutor's evidence and refusing to simply plead guilty to the underlying charge.
What are the chances of a dismissal?
Almost never is a DUI case “dismissed.” Some of my clients have had cases dismissed, due to legal, constitutional or jurisdictional challenges, or due to the fact that we went to trial and the client was found not guilty. However, if you are charged with a DUI, you should never expect your charge to be dismissed outright.
If the Court grants you a deferred prosecution, you can get the DUI dismissed after five years. But this is not an easy process. The court must first find you suffering from alcohol or drug addiction according to a state-certified agency. Then you must agree to complete a treatment program lasting two years, during which (and for three years after program completion), you have to abstain completely from alcohol and mood-altering drugs.
If after five years from the time you enter the deferred prosecution you have successfully completed treatment and followed all other terms of the program to the letter, you can have the DUI charge dismissed.
Will I go to jail?
It's hard to say. To begin with, because of the statutory mandatory minimums, if you are convicted for a DUI you must serve some form of incarceration. And yet, no statutory requirements exist that force you to spend time in jail if your case receives a reduction to a lesser offense (such as negligent driving in the first degree or reckless driving). But if you have your charges reduced that does not necessarily or automatically mean you won't serve time in jail. Many variables can determine that outcome such as breath/blood tests, if there were open alcoholic containers or passengers in the vehicle, if there was an accident, and your overall behavior with the law enforcement officer (did you pass the attitude test?). Jurisdiction also matters because some prosecutors in some jurisdictions are much more thorough and dogged than others.
Most importantly, your criminal history comes into play and the judge, not the prosecutor who may make a plea deal, has the final word as to your sentence.
I have resolved a high number of my first-offender DUI cases by negotiating a plea to a reduced charge, and my clients did not serve any time in jail. In many cases, they had only to perform community service, or serve on a work crew as a “sanction” for their conduct. But every case is different, and I cannot guarantee to anyone we consult that jail time won't happen. No one can. But when we meet, I can provide an educated opinion built on experience and expertise how to best resolve your case and if jail will be likely or not.
How much do you charge?
I charge a flat fee. You pay exactly what I quote, and that includes everything – DOL hearing as well – until the final resolution of your criminal charge. Even for a jury trial, you face no other fees. That's because I believe my clients should never feel forced to plead guilty to a charge only because they need to avoid expensive attorney costs of going to trial.
Since many variables can affect each case differently I do not provide that flat fee up front. Those include the particular facts of your case: which court that's charging you, your past driving and criminal record, and whatever breath tests results that may exist.
Your first consultation is totally free, without any cost or obligation whatsoever.
As you can imagine, many Washington attorneys defend DUIs and many fee structures prevail. For a DUI charge, some charge as low as low as $300 as high as $10,000. Be forewarned: you get what you pay for. Based on my experience and community reputation, I think you will find my fees extremely competitive.
Why should I hire Aaron Wolff?
I hope the testimonials from former clients show you the kind of successes I've had in career and that my approach is always to prioritize your needs. My unique experience both prosecuting and defending DUI cases translates to strong relationships with prosecutors and judges and expertise in the process.
I treat all my clients as human beings first, not merely my next defendant. I'm here to assist you in what's really quite overwhelming for most people. I'm also very proud to be available when my clients need me. I can be reached at work or on my cell phone and encourage my clients to contact me with questions or concerns whenever they may come up.
At our initial consultation, I won't conduct hard-sell tactics to secure you as a client. I only ask about the facts of your particular case, and then proceed to a lengthier discussion of the entire process. Again, I make the fee clear and understandable, and can guarantee that when you leave the consultation, you'll better understand what a DUI arrest means.
If the Washington DOL suspends or revokes my license, can I still drive?
Yes, you still can drive because of the new Ignition Interlock License (IIL). If you have lost your privilege to drive, either because of a DOL administrative action or a DUI conviction, you can get the IIL.
In Washington State, you must complete and file with the DOL the IIL application (IIL Application) along with a $100 fee, prove financial responsibility insurance (SR22), and install the device obtained from a state-approved agency. After you are arrested for a DUI, you can apply for the IIL right away. But if you do so before your administrative hearing, your forfeit your right to that hearing.
Also, some drivers are ineligible for a Washington IIL. You cannot obtain one if you have been convicted for vehicular assault or homicide, past or present, or if the DOL considers you a habitual traffic offender (HTO). However, almost all drivers are indeed eligible to apply right away for an IIL in Washington State.
NOTE: Before you apply for an IIL, speak with a DUI attorney to make sure this is the best course of action.
Will I need to get SR22 insurance?
There are two ways by which you will need to apply and have SR 22 insurance. First, if you lose a DOL hearing and your license is subsequently suspended, you will need to apply for SR 22 insurance and file proof with DOL. Second, if you have a license suspension based on a conviction that carries a mandatory license suspension in a criminal case. In both instances you will need to have SR 22 insurance for a period of 3 years.
If I blew under the legal limit can Washington State still charge me with a DUI?
Yes. Even if your breath test results showed you were under the legal limit, Washington can still charge and prosecute you for DUI. Washington State DUI statute (RCW 46.61.504) considers a person DUI when under the influence of alcohol and/or drug and that their driving is affected to any appreciable degree. The prosecutor considers all of the evidence before pressing charges. That evidence includes driving, the suspect's appearance and demeanor, any admissions to drinking or taking drugs, and field sobriety test results.
Since the officer did not give me a citation, does that mean I'm free of the DUI charge?
No, not at all. Most Washington police agencies don't serve citations on the suspect on the arrest night. (There are exceptions, such as Seattle Police Department and others in Pierce County.) In Washington, a driver gets the license with a hole punched in it, a copy of the breath test ticket, and a DOL hearing request after release from custody. The arresting official compiles all evidence, drafts a report, and then files the report with the prosecuting attorney in his/her jurisdiction.
The prosecutor examines the police report, and files a formal charging complaint in court if there are sufficient facts. In most WA jurisdictions, prosecutors file charges within a few weeks up to as much as three months after the arrest. But Washington's statute of limitations for filing charges after a DUI is two years from the date of arrest.
When should I speak with an attorney about my DUI arrest?
It is very important that anyone arrested for DUI contact an attorney right away. There is no cost or obligation to meet with me for a free initial consultation. During the meeting, I will get your background and ask several questions regarding the incident. After obtaining a clear understanding of the type of case we are dealing with, I will then discuss the law and process surrounding the driver's particular case. At the end of the meeting, you will have a much better understanding of your situation and what to expect in the weeks and months to come.