Monthly Archives: January 2015

Officer, I’m not texting and driving, I’m updating my Twitter account and driving

A bill was introduced this week in the Washington legislature that would expand the ban on talking and texting while driving. While this is an infraction, not a crime, it is applicable to criminal law because police often use relatively minor traffic infractions to stop people and investigate a more serious crime (such as DUI, possession of drugs, firearms, ect.). Washington’s current laws, RCW 46.61.667 and RCW 46.61.668 outlaw texting and driving in addition to talking on your cell phone and driving. However, the law is very specific in that only “sending, reading, or writing a text message” and driving is illegal. So under Washington’s current law, if you are using your phone to check out your fantasy football team’s stats while driving, you are not violating this law. If you are writing an email to a friend and driving, you are not violating this law. If you are drafting your college thesis and driving, you are not violating this law (you get the point). No one can really argue that the law should not be updated, but should there be an outright ban on using your phone in your vehicle for any purpose?

The new bill expands the prohibition on texting and driving, It is illegal “to read or manually enter data including, but not limited to, short message service, texting, e-mailing, instant messaging, or engaging in any other form of electronic data retrieval or electronic data communication.”

The bill specifically defines “operating a motor vehicle” to include “operation of a motor vehicle while it is moving and while it is temporarily stationary because of traffic, a traffic light, or a stop sign, and does not include when the vehicle has pulled over to the side of, or off, the roadway and has stopped in a location where it can safely remain stationary.” So you have to be completely off the roadway and parked before you can use your phone (no checking a text at a red light).

The bill deletes some exceptions that the current law includes. For instance, the new bill deletes the exception that “a person does not send, read, or write a text message when he or she reads, selects, or enters a phone number or name in a wireless communications device for the purpose of making a phone call.” So under the old law, you could enter a phone number into your phone to make a hands free call. Under the new proposed law, you cannot.

The old law said it was okay to use your phone as “a voice-operated global positioning or navigation system that is affixed to the vehicle and that allows the user to send or receive messages without diverting visual attention from the road or engaging the use of either hand.” The new law takes this away and instead makes an exception for “a system that is physically or electronically integrated into a motor vehicle and provides the user with services such as emergency notification and navigation.” The new law is somewhat vague, but it appears to be prohibiting you from using Google maps for navigation as you drive unless your phone is ” physically or electronically integrated into” your car.

And finally, the old law specifically stated that infractions for texting and talking while driving “shall not become part of the driver’s record” and “shall not be made available to insurance companies or employers” (so insurance companies don’t get a chance to jack up your rates for the offense). The new law takes these protections away and instead doubles the fines for repeat offenders (within a five year period).

The proposed bill will probably be modified before it becomes law, but it does appear to ban essentially all cell phone use while driving. I’ll update this post with the final bill but if you either agree, or do not agree with proposed bill, contact your representatives and tell them what you think. You can track the progress of this bill here. There is a public hearing scheduled for February 9, 2015.

Case dismissed, but why did the 70-year old man who uses a golf club for a cane accept the diversion agreement plea offer?

News broke this week that Seattle police have apologized to a 70-year-old man who was arrested last year after he refused an officer’s command to put down his golf club, which the man explained he uses as a walking stick. You can watch the in-car video of the account here. The police have apologized to the man, gave him back his walking stick, and the Seattle City Attorney dismissed the criminal case. What struck me about the case was why criminal charges were filed, and why did the man decide to accept the prosecutor’s plea offer in the case?

A timeline of the case is helpful. According to court records (which are available to the public here and here), the incident took place on July 9, 2014. The man was booked into the King County Jail by the officer for charges of Unlawful Use of a Weapon to Intimidate Another and Obstructing a Public Officer. The Seattle City Attorney’s office reviewed the officer’s report and believed at least one of the charges was justified, so it filed a criminal charge of Unlawful Use of a Weapon to Intimidate Another against the man (the prosecutor decided that the charge of Obstructing a Public Officer was not warranted). This charge of Unlawful Use of a Weapon to Intimidate Another and Obstructing a Public Officer is a gross misdemeanor and carries a maximum penalty of 364 days in jail and $5,000 fine. A person convicted of this offense will lose their concealed pistol license (even though the facts of the case had nothing to do with a firearm). The elements of Unlawful Use of a Weapon to Intimidate Another are listed under Seattle Municipal Code 12A.14.075, which are:

“A person is guilty of unlawful use of weapons to intimidate another if he or she carries, exhibits, displays or draws a firearm, dangerous knife, any knife with a blade that is open for use, other cutting or stabbing instrument or a weapon apparently capable of producing bodily harm in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another person or warrants alarm for the safety of other persons.”

On July 10, 2014, arraignment (the first court appearance) was held (presumably while the man was still in custody). A court appointed-attorney (i.e. a public defender) was present to assist the man at this first appearance, although the documents suggest he was assisted by a Rule 9 intern (a law student who has not passed the bar and is supervised by a licensed attorney). The prosecutor offered a diversion agreement stating that if the man stayed out of trouble for two years, forfeited the golf club, and agreed to possess no weapons including firearms, the charge of Unlawful Use of a Weapon to Intimidate Another would be dismissed. You can view the actual agreement here:

William Wingate dispositional continuance

Normally, a person who is actually guilty of a crime would be thrilled to have a diversion agreement plea offer where they have a chance to get the charge dismissed. But if someone is actually innocent, why would he or she accept this offer? A lot of things can factor into that decision, but keep in mind, just to get a trial date requires a defendant to appear in court on numerous occasions. And even if you are innocent it doesn’t necessarily mean that a jury will agree with you. It’s noteworthy that the man chose to accept this plea agreement at his first court hearing without an opportunity to speak to an attorney (or at least speak to the attorney for very long) or go over the police reports with an attorney and investigate the case (which would involve interviewing the officer and other witnesses). The fact that he accepted this plea agreement while he was still in custody suggests he may have accepted the plea offer just to get out of jail (who wouldn’t do that, right?).

None of the above seemed to be an issue for the City of Seattle Attorney’s Office. They charged the case, made the plea offer, and allowed the man to accept the plea offer at the first court appearance. It wasn’t until City Attorney Pete Holmes was contacted and asked to personally investigate the case that his office’s stance changed. On September 19, 2014, the Seattle City Attorney’s Office asked the court to dismiss the charges against the man (before he had completed the terms of his diversion agreement). However, on the dismissal order, the prosecutor wrote the reason for the dismissal was “satisfactory completion of all conditions of the dispositional continuance.” In other words, the prosecutor was not dismissing because charges never should have been filed but dismissing because the office believed the man had completed the terms of the diversion agreement (so they refused to admit fault). You can see the dismissal order here:

William Wingate Motion and Order of Dismissal

I commend Seattle Police for apologizing to the man and returning his golf club to him. But the question remains: why was this individual booked into jail, why was he charged with a crime, and why was he allowed to accept a plea offer on the crime at the first court appearance after speaking to an intern?

Keeping Plea Negotiations Objective

A lot of people charged with a crime are often surprised that the person in the court room with the most control over their fate is not the judge, but the prosecuting attorney. The reason for this is that the prosecutor decides what you are charged with. And the prosecutor has the power to reduce and dismiss a charge where as the judge can only dismiss if there is a legal reason (such as the police officer did not have a legal reason to stop the vehicle). So how does a prosecutor decide what charge to charge you with? And what factors will persuade a prosecutor to reduce your charge? Does Bill Gates get a better plea offer than you because he is rich? Prosecutors attempt to objectively analyze  each individual case and make these decisions based on the facts of the case, the defendant’s criminal history, and other aggravating and mitigating factors. But not every prosecutor is the same and some prosecutors get a reputation as a hard ass where as others are soft on crime. Some prosecutor offices have attempted to make the plea negotiating process more objective by drafting plea negotiation and charging standards. These documents are available to the public and attempt to lay out what it is that the prosecutor considers when deciding what to charge you with, and whether your charge will be reduced.

For instance, the Snohomish County Prosecuting Attorney’s Charging and Dispositions Standards can be found here. For an example, take a look at page 50 where it identifies several factors that help the prosecutor decide whether to reduce a DUI to either Reckless Driving or Negligent Driving. Those factors include:  “1) lack of poor driving, 2) good FSTs, 3) no accident, 4) lack of admissions, 4) interim drinking or drug use, 5) difficulty proving the defendant was driving or satisfying corpus delecti, 6) lack of prior criminal history, and 7) susceptibility of evidence to suppression motions.” If a reduction from DUI is appropriate, the manual indicates that a DUI with a BAC of “.100 or under may be reduced to a Negligent Driving First Degree,” a DUI with a BAC from “.101 to .119 may be reduced to Reckless Driving,” and a DUI with a BAC “under .180 may be reduced to ‘affected by’ [prong of DUI] rather than ‘over .15.'” The manual specifies that these are only general guidelines, so a defendant is not guaranteed these results. But the guidelines help insure that all defendants are treated equally regardless of which prosecutor is assigned to the case and each defendant’s individual circumstances.

Other prosecutors take a similar approach and publish plea negotiation manuals online. The King County Prosecuting Attorney’s Filing and Disposition Standards for felony offenses can be found online here. King County’s misdemeanor manual is not available online, but was made available to me via a public records request. You can view the manual here (misdemeanor cases are discussed after page 217). The Kitsap County Prosecuting Attorney’s District Court manual can be found here. Note that it has not been updated since 2009, but just having a manual online puts that office ahead of most prosecuting attorney’s offices, who do not make their plea negotiating guidelines available to the public online (if they even exist at all).

Of course, not all cases are the same. And it is impossible to be 100% objective when deciding how to handle a particular case. But plea negotiation guidelines, like Snohomish County’s, do increase the level of objectivity in the plea negotiating process.