Legal Question in DUI Law in Washington
possible 3rd DUI
So heres the deal:
My fiance had a DUI that was dropped down to a negligent driving in 2003.
In Dec.'07 he received a DUI and was put through the deferral process.
Just before the deferral program started he received another DUI charge for flipping his SUV.
However, he had flipped it 3 times, and it had caused a lower back injury and neck injury. The Officer claims that he refused a breath test, when it was never asked. They didn't even ask for a blood sample when he got into the ambulance. It was out of the car, to the ambulance, to the hospital. So when would the officer have time to ask him?
My fiance was obviously distraught after the accident, he just wanted to go home. He was in the hospital all night and part of the next day..
anyways, my question is, the prosecution is offering us a 30 day sentence if he pleads guilty.. Is she forgetting the 1st offense? He will have a concurrent for the 2nd and 3rd. A lawyer told us that the first could have been closed after 2 years. We have reason to believe this is true since we cannot obtain any information on it.
What is the best approach for this case?
Thank you!
1 Answer from Attorneys
Re: possible 3rd DUI
Some clarification is needed: what was the offense date of the 1st DUI? Penalties are determined offense date to offense date. Your fact pattern states it was amended to a neg driving in 2003. Yes, it could have closed to jurisdiction after 2 years (with successful compliance). But that doesn't mean it can't count as a prior. If the 2d and 3d DUIs are within 7 years of the first (offense date to offense date), the minimum penalties are: 2d DUI jail/EHM: 30d/60d (BAC<.15) to 45d/90d (BAC.15+ or refuse) and 3d DUI jail/EHM: 90d/120d (BAC<.15) to 120d/150d (BAC.15+ or refuse). It's possible, from the offer, that the 1st DUI was outside of 7 years, or that the 1st DUI charge was fully dismissed and refiled as a neg (which also removes it from being a prior DUI). That's the only way I could understand a plea to each for the max of 30days jail concurrent.
Hypothetically, if the prosecutor HAS made a mistake and is treating this as a 1st and 2d, well, that's the prosecutor's problem. Your fiance' would not be required to correct him/her. But by the same token, your fiance' should NOT take that to mean he could falsely answer the court if a direct question was put to him as to how many priors, etc... The one danger here is that if your fiance' does enter a plea and the court notes the prosecutor's error, he could try to withdraw the plea, but the court might not let him. (in such an instance, the court should allow withdrawal of the plea, as the plea is conditioned on a specific understanding as to the possible minimums and maximums the court could impose)
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