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Using an Affidavit of Prejudice in a DUI case

Posted by Aaron J. Wolff | Apr 02, 2015 | 0 Comments

A person accused of a DUI has several rights.  They include the right to a jury trial, the right to remain silent, the right to an attorney, the presumption of innocence, the right to a speedy trial, and the right to ask for a different judge.  Yes, that is correct- any person accused of a DUI has the right to ask for a different judge.  For any reason.  It is called an affidavit of prejudice.

CrRLJ 8.9 states that a defendant may file an affidavit against a judge if they believe they cannot have a fair and impartial trial before a judge for any reason of interest or prejudice of the judge.  And the party does not require that they file a specific reason as to why they are seeking the affidavit.  The only requirements are that the the judge has not made a discretionary ruling or the trial has commenced or 10 days has passed since the arraignment (first court date) with notice of the particular judge.  Also, a person may use an affidavit of prejudice only once in their case.

What do the above requirements mean?  First, a discretionary ruling is basically any action taken by the judge.  Such as granting a continuance of a case.  Or imposing conditions at an arraignment.  Any ruling made by the judge will eliminate an affidavit of prejudice being accepted.  Also, as far as notice is concerned, that means if a person appears in a court and gets notice of their next court date being before a particular judge they must file the affidavit within 10 days of receiving said notice

There are several reasons as to why a DUI attorney might advise their client to file the affidavit of prejudice.  Whether it is the demeanor of a particular judge, their previous ruling on legal issues or their inexperience on the bench- their are several compelling reasons as to why it might be in a person's best interest.  And as stated above, there is never an explanation required.

Sometimes, there are certain judges who have made legal rulings that benefit a person charged with DUI.  For example, recently some judges have ruled that refusals to submit to breath test are suppressed.  Another judge has ruled that breath test results are suppressed as a result of the incomplete warnings provided before the test.  A DUI lawyer might elect to execute an affidavit of prejudice against one judge in order for his/her client's case to be changed to a different judge who has a made a ruling that benefits the case.  This is common in the legal process and is considered fair game.  For both the defendant AND the prosecution.

The government also has the right to file an affidavit of prejudice.  Just in the past 2 months the King County Prosecutor's office and the City of Bellevue prosecutor's office has elected to file affidavits on different judges due to their rulings and the potential impact it has on their ability to prosecute DUI cases. Earlier this week, the Bellevue prosecutor attempted to file an affidavit on one of my cases, but it was denied because it was not filed in a timely manner since much more than 10 days had passed since the court date had been set.

It is important for a person accused of a DUI to have an attorney who has ample experience in the court where their case might be filed.  The lawyer will be familiar with the judge the case is assigned to and will know if an affidavit of prejudice might be useful.  Other times, I have advised my clients to execute an affidavit of prejudice when we have appeared at a critical court appearance (such as an evidentiary hearing) where there was a substitute judge (Judge Pro Tem) and I was concerned over his/her ability to understand the legal issues.  Washington DUI laws are complex and always changing, and having a fair and impartial judge is critical in obtaining the best possible outcome.

About the Author

Aaron J. Wolff

A former DUI prosecutor, Aaron Wolff has over 18 years of experience in representing people accused of DUI and is recognized as one of the leading defense lawyers in Washington State. His relentless and passionate advocacy has lead to superb ratings and outstanding reviews from former clients.


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