Category Archives: Court Fines

Unlawful Arrest for Failure to Pay Court Fines.

In State v. Sleater, the WA Court of Appeals Div. III held an arrest warrant may not issue for a defendant who fails to schedule an appearance in court to explain why she had failed to pay her court fines.

The Defendant Ms. Sleater had prior convictions for various drug offenses. As of April 2014, she was making a combined monthly payment of$75 toward three cases. She was also entered into Benton County’s “pay or appear” program. It required her to make her legal financial obligation (LFO) payments every month or appear to schedule a hearing to explain why she could not make the payments. The program agreement also stated that if the defendant did not make a payment and failed to schedule a hearing, “a warrant will be issued for the Defendant’s arrest.”

For months, Ms. Sleater’s mother paid the monthly fines. Her mother made a $150 on-line payment on April 17, 2014. Unfortunately, the computer did not apportion the sum among the three accounts, but applied all of the money to only one case number identified with the payment. AS a result, The other two counts were four and seven months behind.

On April 22, 2014 the clerk’s office obtained arrest warrants for Ms. Sleater since she had not made payments on those two cases and had not scheduled a hearing to explain the lack of payments.

On May 16, 2014 officers arrested Ms. Sleater on the two warrants. She possessed methamphetamine at the time of her arrest. Consequently, the prosecutor filed one count of possession of a controlled substance. Her attorney moved to suppress the evidence under CrR 3.6 on the claim that the warrants were wrongly issued. However, the trial court denied the motion and found Ms. Sleater guilty at trial.  She appealed.

The WA Court of Appeals held that the arrest warrants were invalidly issued in violation of the Fourth Amendment to the United States Constitution.

The Court reasoned that the Fourth Amendment protects against unreasonable seizures, and that seizure is reasonable if it serves a governmental interest which is adequate to justify imposing on the liberty of the individual.” However, it violates due process to punish defendants for failing to pay fines if the defendant cannot pay simply because they are impoverished.

“Nor can a state impose a fine and convert it to jail time solely because a defendant has no ability to pay the fine. The State must afford the defendant a hearing before jailing him for failing to pay his obligations. While the court can put the burden to prove inability to pay on the defendant, it still has a duty to inquire into a defendant’s ability to pay fines prior to jailing him.”

Here, the Court reasoned that the effect of the arrest warrants was to require Ms. Sleater to go to jail for failing to pay her LFOs without first conducting an inquiry into her ability to pay them:

“The facts of this case demonstrate the need for such an inquiry. Ms. Sleater’s mother did make a payment toward her daughter’s LFOs, but through some type of error the payment was not reflected in all three files. A hearing before the warrants issued would have allowed the court to resolve the problem without the necessity of an arrest.”

Here, reasoned the Court, a warrant should not have issued for defendant’s failure to pay without first determining the willfulness of that violation. Accordingly, the Court of Appeals reversed Ms Sleater’s conviction for possessing methamphetamine.

Good decision.

Is Cash Bail Effective?

Three research studies released this month further confirm the ineffective, discriminatory, and unsafe influence of money bail in U.S. criminal justice systems.

In The Heavy Costs of High Bail: Evidence from Judge Randomization, a Columbia Law and Economics Working Paper by Arpit Gupta, Christopher Hansman, and Ethan Frenchman, describes how assigning money bail to people accused of crime in Philadelphia and Pittsburgh increases the likelihood of conviction by 12% and increases recidivism by 4%. Ultimately, the authors found that the use of money bail is not effective – it “does not seem to increase the probability that a defendant appears at trial,” and actually makes us all less safe.

In her University of Pennsylvania Law School Working Paper, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Megan Stevenson reports that people arrested for crimes in Philadelphia and detained due to their inability to pay money bail face up to a 30% increase in convictions—driven by increased guilty pleas—and an additional 18 months of incarceration compared to those who are able to afford bail.

Finally, the Prison Policy Initiative (PPI) released an analysis of national data that gives context to the Columbia and University of Pennsylvania papers. In Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, PPI found that “most of the people who are unable to meet bail fall into the poorest third of society.” Their median income – only $15,109 prior to incarceration – was less than half of the income of non-incarcerated people, and yet the median bail amount nationally is almost a full year’s income for the typical person unable to post a bail bond. Money bail, PPI concludes, results in the unnecessary and excessive detention of poor people, essentially jailing people for their poverty.

This research highlights what legislators, practitioners, and taxpayers are increasingly recognizing: money bail doesn’t work, is discriminatory, and makes communities less safe.

Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute released this statement about the research:

“With these recent research findings, there should no longer be any doubt, anywhere, that money bail unfairly punishes the poor while also making everyone less safe. Our 3DaysCount campaign calls for replacing the broken money bail system with commonsense and proven solutions to support people being successful on pretrial release.”

Congressman Ted Lieu, sponsor of the No Money Bail Act of 2016, said the following:

“Our nation must stop criminalizing poverty, and these new studies provide crucial data proving that being poor increases your chance of jail time and conviction.  This kind of research is crucial to supporting the No Money Bail Act of 2016, which would eliminate the use of money bail at the federal level and incentivize states to end the use of bail through the withholding of federal grants. We can no longer stand by in good conscience while Americans, presumed innocent, are deprived of their liberty because they can’t afford bail. Justice in America should not be bought and paid for.”

Additionally, judicial leaders across the nation joined together to call attention to these findings.Chief Justice W. Scott Bales, Arizona Supreme Court; Chief Justice Patricia Breckenridge, Missouri Supreme Court; Chief Justice E. James Burke, Wyoming Supreme Court; Chief Justice Tani Cantil-Sakauye California Supreme Court;  Justice Charles W. Daniels, New Mexico Supreme Court; Chief Justice Matthew B. Durrant,Utah Supreme Court; Chief Judge Nan G. Nash, Second Judicial District, New Mexico;Chief Justice Mark E. Recktenwald, Supreme Court of Hawaii; and Chief Justice Robert J. Torres, Jr., Supreme Court of Guam issued the following statement:

“People should not be held in jail pending the disposition of charges merely because they are poor and cannot afford bail.  Recent research suggests that we can identify better ways to make release decisions that will treat people fairly, protect the public, and ensure court appearances.”

My opinion? This national effort is gratifying. Few people understand how incarceration negatively affects job opportunities, families and ability mental/emotional wellness. In my Legal Guide titled, “Making Bail,” I discuss how one of the greatest services a competent defense attorney can do for their clients is assist in getting them released from jail as soon as possible on either a reduced bail amount which is lower than the Prosecutor’s recommendations or that the defendant be released without bail altogether.

One opportunity to lower/rescind bail is at the defendant’s first appearance or arraignment. Another opportunity exists through a Bail Review Hearing.

Under CrR 3.2, judges must review the nature of the pending criminal charges, a defendant’s prior criminal history, their history of failing to appear at past court hearings, and their ties to the community (property ownership, employment, family, school, etc). Factoring all of this, the judge decides whether to lower bail or release the defendant altogether.

Also, CrR 3.2 allows release of defendants to the care of willing and responsible members of the community, including family members. Also, judges may be persuaded to impose other pretrial release conditions such as mandatory curfews, staying away from businesses serving alcohol. Almost everything is negotiable.

My opinion? Hire a competent defense attorney to assist this endeavor. Getting out of jail as soon as possible saves people’s careers, maintains stability in the family and allows your defense attorney more time to either resolve the case or prepare for trial. Good luck!

State v. Hardtke: Court Limits Costs of Pretrial Monitoring

In State v. Hardtke, the WA Supreme Court decided that although a trial court has the authority under RCW 10.01.160 and CrR 3.2 to impose the cost of pretrial electronic alcohol monitoring, the amount is capped at $150.00.

Here, Mr. Hardtke was charged with two counts of Rape in the Second Degree, one count of Assault Second Degree, two counts of Assault Fourth Degree, and Malicious Mischief Third Degree. All were alleged to be acts of domestic violence that took place while Hardtke claimed he was blacked out from alcohol abuse.

At arraignment, the trial court imposed conditions that Hardtke not consume alcohol. To ensure his compliance with this condition, Hardtke was required to wear a transdermal alcohol detection (TAD) electronic alcohol monitoring bracelet while awaiting trial. Hardtke objected multiple times to paying for the cost of the bracelet, but he nevertheless wore the bracelet as a condition of his release.

Eventually, Hardtke pleaded guilty to amended charges, and as part of his sentence he was ordered to reimburse the county for the cost of the alcohol monitoring; which totalled $3,972.00. Hardtke objected and appealed the court’s ruling. The case ended up in the WA Supreme Court.

In reaching its decision, the WA Supreme Court reasoned that RCW 10.01.160 authorizes courts to impose “pretrial supervision” costs on both convicted and nonconvicted defendants; however, it expressly limits pretrial supervision costs to $150. The court further reasoned that paying the costs was unreasonable:

Hardtke himself did not arrange for the TAD monitoring and did not agree to pay a third-party company for the service. On the record before us, the sentencing court imposed a cost on Hardtke for pretrial electronic alcohol monitoring in order ensure compliance with the release condition that he not consume alcohol. We find no support for the State’s argument under CrR 3.2.

The court further reasoned that TAD monitoring falls under the plain meaning of “pretrial supervision.” This includes work release, day monitoring, or electronic monitoring. The court emphasized that TAD monitoring operates like other monitoring devices, such as GPS (global positioning system) monitoring. It ensures compliance with the pretrial release conditions by supervising Hardtke’s conduct and reporting his blood alcohol levels. This monitoring, the court said, is functionally analogous to requiring a defendant awaiting trial to physically check in with the court or county probation officer to demonstrate that pretrial release conditions have been complied with.

The court concluded that RCW 10.01.160 limits the court’s authority to impose costs for pretrial supervision to $150. “Because we hold that the TAD monitoring costs imposed on Hardtke were for pretrial supervision, and because those costs were greater than $150, the trial court exceeded its statutory authority by imposing nearly $4,000 for Hardtke’s pretrial supervision.” The Court remanded Hardtke’s case back to the trial court with instructions that costs for pretrial supervision in this matter not exceed $150.00.

My opinion? Good decision. Defendants should not pay an arm and a leg simply to be monitored by courts, ESPECIALLY if there’s statutory authority stating that pretrial supervision shall not exceed $150. Getting access to justice is difficult enough. Good, straightforward opinion.

Didlake v. DOL: Fees for DOL Hearings Held Constitutional

Cost of a DUI

Here’s an interesting opinion on the ever-increasing financial costs of fighting DUI crimes and the Department of Licencing’s (DOL) automatic suspension of a DUI defendant’s driver’s license.

In Didlake v. Department of Licensing, the Court of Appeals held that Washington’s Implied Consent Statute, RCW 46.20.308, which requires drivers arrested for DUI to pay a $200-$375 statutory fee in order to have an administrative hearing on license suspension, does NOT violate due process because of the driving privilege is not a fundamental right and DOL waives the fee for indigent drivers.

In 2010 – 2011 police arrested James Didlake and other defendants for DUI. Washington’s Implied Consent Statute, RCW 46.20.308, requires that a driver arrested for Driving Under the Influence of an Intoxicant (DUI) pay a filing fee to obtain an administrative review hearing to prevent a driver’s license suspension or revocation. And as required by Washington’s implied consent law, the Department initiated license suspension proceedings against them. Each defendant paid a $200 fee for an administrative review hearing. After they prevailed at their hearings, the Department rescinded their license suspensions.

Didlake filed a class action lawsuit against the DOL, asking for injunctive and declaratory relief, plus a refund and damages. He alleged that the $200 statutory fee for an administrative hearing violates due process. Didlake filed a motion for class certification under CR 23. After filing its answer, the DOL filed a motion to dismiss Didlake’s lawsuit under CR 12(b)(6).

On April 5, 2013, the trial court granted the DOL’s motion to dismiss. Didlake asked the Washington Supreme Court for direct review. On March 5, 2014, the Supreme Court transferred the case to the Court of Appeals.

In rendering its decision, the Court of Appeals gave lots of background on the procedural aspects of challeging DOL license suspensions. The court reasoned that the implied consent law provides certain procedural protections to drivers. The DOL must give the driver written notice that it intends to suspend or revoke the driver’s license. The DOL must also notify the driver of the right to a hearing and specify the steps to obtain one. Within 20 days of this notice, the driver may request in writing a formal hearing before the DOL. As part of the request, the driver must pay a mandatory fee. The DOL may waive the fee, however, for drivers who are indigent.

At the hearing, the driver may have assistance of counsel, question witnesses, present evidence, and testify. The hearing officer determines if the officer had reasonable grounds to believe the driver was driving under the influence and if the driver refused to take a test or took a test that revealed a BAC of 0.08 or higher. After the hearing, the DOL “shall order that the suspension, revocation, or denial either be rescinded or sustained.”

Here, the Court reasoned that Washington courts have almost always have upheld the constitutionality of filing fees. Courts have consistently distinguished between fundamental interests and interests that are “solely monetary,” involving “economics and social welfare,” or even “important” or “substantial.” If the interest involved is fundamental, due process requires access for all. Here, the court reasoned, a fee waiver for indigent litigants accomplishes this mandate. If the interest is not fundamental, “a monetary prerequisite to an appeal is thus permissible, even for indigent appellants.

Additionally, Courts have identified the driving privilege as an “important” and “substantial” but not fundamental right. Consequently, the court reasoned, this contradicts Didlake’s assertion that the filing fee has a “chilling effect” on drivers’ exercise of their due process rights. Thus, he fails to establish a facial challenge on due process grounds. And because he paid the fee and received a hearing that complied with due process, he does not show that the fee requirement is unconstitutional as applied to him. “Whether facial or as-applied, Didlake’s due process challenges fail.”

 The Court concluded that because Didlake failed to establish that the implied consent statute’s fee requirement violates procedural due process, the Court of Appeals affirmed the trial court’s order dismissing Didlake’s class action claim.

My opinion? Speaking as a DUI attorney, DOL hearings and license suspensions are just another way for the State to profit from defendants charged with DUI. These days, a DOL hearing costs $375. Additionally, a defendant’s window of time to apply for these hearings is small – only 20 days after the DUI incident happened. Finally, DOL hearings are very difficult to win. There must be some glaring legal weakness in the case regarding (1) the pullover of the defendant’s vehicle, (2) the evidence of DUI, (3) whether the officer read the Implied Consent Warnings, and/or (4) whether the defendant tested over .08 BAC or refused the BAC machine.

Unfortunately, given the Court’s analysis above, it appears the wheels of justice shall continue to financially grind upon defendants facing license suspensions from DUI charges.

Waiving or Reducing Interest on Court Fines

Gotta love the ACLU.

The organization just created a step-by-step guide which provides information and forms on how to obtain a court order waiving or reducing interest on legal financial obligations (LFOs) in Washington State. Defined by statute RCW 10.82.090, the court may, on motion by the offender, reduce or waive the interest on legal financial obligations ordered as a result of a criminal conviction.

http://walawhelp.org/WA/StateChannelResults.cfm/County/%20/City/%20/demoMode/%3D%201/Language/1/State/WA/TextOnly/N/ZipCode/%20/LoggedIn/0/iSubTopicID/2/iProblemCodeID/2040100/sTopicImage/court.gif/iTopicID/1196/ichannelid/7/bAllState/0

In order to move the court to waive or reduce interest, you must prove the following to the court in all cases:

1) You have already been released from total confinement;

2) You have made a good faith effort to pay, meaning that you have either (a) paid the principal amount in full, or (b) made 24 consecutive monthly payments excluding any payments mandatorily deducted by DOC;

3) The interest accrual is causing you significant hardship;

4) You will not be able to pay the principal and interest in full;

5) Reduction or waiver of the interest will likely enable you to pay the full principal and any remaining interest thereon;

My opinion?  So many clients tell me the criminal justice system sucks their money away.  It’s bad enough that people get criminal records, jail time, fines, restitution, etc., when convicted of crimes.  Paying interest fees on top of criminal fines is adding insult to injury.  Unbelievable.

Here, the ACLU has provided a great service to criminal defendants and their attorneys.  Good stuff.  I’m looking forward to applying the guidelines and helping my clients save money.

Study: Drug, Driving Charges Sap Nation’s Courts

Article criticizes why low-level drug and driving charges are a financial burden for misdemeanor courts.

http://www.seattlepi.com/local/405652_misdemeanor28.html

My opinion?  As a former public defender (and proud of it), I was dismayed when defendants were prosecuted and jailed on Driving While License Suspended charges.  Indeed, defending these kinds of cases exposed me to some ugly truths about the criminal justice system.

Here’s a typical situation: “Speeder” gets pulled over for speeding.  Speeder can’t afford to pay the ticket.  They miss their court date.  Court gives them a “Failure to Appear” for missing said court date.  The Department of Licensing catches wind.  Speeder’s license gets suspended.   He is now Speeder-Turned-Suspended Licensee (STSL).  Eventually STSL get pulled over – and possibly arrested – on the suspended license.  If STSL is lucky, police officer won’t (1) investigate STSL for DUI, and/or (2) search STSL’s car following the arrest.  If unlucky, STSL might have had a couple of drinks before being pulled over.  They get investigated for DUI.  Or STSL has contraband tucked away in the glove compartment that gets discovered on the search.

All of the sudden, “Speeder” is now a criminal.

The grinding wheels of justice.  Steel jaws gnashing away at people’s rights.  Police using a suspended license as probable cause to arrest you and search your car.  Unbelievable.

Now, more than ever, change is necesssary.  King County has implemented a program which simultaneously circumvents the criminal justice system and allows people get their licenses back.  Legal fees are waived if people successfully complete it.  The program is a success.  And it costs less than prosecuting/jailing people.

There’s more.  In 2007, the study’s authors found, 11,553 misdemeanor marijuana cases were filed.  Of those, 3,638 convictions were made, which resulted in about $7.6 million in direct costs to the state.

Again, unbelievable.  Taxpayers subsidize these enormous costs.  However, most people believe small-time drug cases should NOT be prosecuted.  Remember Seattle Initiative I-75?  The measure – which passed successfully in 2003 – directed police officers and prosecutors to treat the personal use of marijuana by adults as the city’s lowest law enforcement priority.

It’s time our court system caught up with the will of the people.

Defendants Could Be Free From Probation

http://seattlepi.nwsource.com/local/402697_supervision07.html

Lawmakers, facing an $8 billion budget deficit, are looking for ways to save money.

Senate Bill 5288, which would lower the number of criminal offenders on parole or probation, reflects suggestions made by the governor to reduce the growing budget deficit by making cuts in the Corrections Department.

Interestingly enough, police gurus support the bill “with some discomfort,” but feel that if the Legislature must make cuts in the Department of Corrections, supervision of low- to moderate-risk offenders would be the right place.

The bill would totally eliminate supervision of low- and moderate-risk offenders unless they were convicted of a violent offense, a crime against a person, or ordered to chemical dependency treatment.

Their supervision would be terminated after six months if they have not reoffended.  However, those offenders categorized as high risk, or low to moderate risk convicted of a sex offense, would still be supervised.

Under the current wording of the bill, gross misdemeanants would not be supervised by parole or probation.  The cost-savings would ultimately mean a big job loss for probation officers.

My opinion?  Pass the legislation!  For the most part, my clients are hardworking; law abiding citizens facing criminal charges from an isolated event or circumstance.  All of the sudden, they get labelled as criminals.  The system painfully grinds them through a process which threatens to take their time, money, dignity, energy, and reputation.

For many of my clients, probation is an unnecessary evil.  Understand this:  in Whatcom County, a first-time DUI offender and/or Domestic Violence offender faces up to TWO YEARS of probation at a cost of $75-$100 per month.  Do the math.  That’s $900 – $1200 per year.   This cost, along with the cost of mandatory treatment, jail, and fines, clearly skyrockets the cost of doing justice.

And for what?  Why?  Is it because the police sometimes violate your Constitutional rights when they pull you over and investigate you for DUI?  Or is it because the police MUST arrest someone in the wake of a heated argument between spouses?  An argument where, in most cases, the victim does not want to pursue prosecution and wants the charges dropped?

“Alex, please do something to get me off probation or decrease the amount of time I’m on it.”  These words are uttered by many clients who want to avoid trial and negotiate a favorable resolution with the prosecutor.  They hire me to get justice.

The legislature is finally realizing probation is unnecessary in many circumstances.  Either that, or they’re realizing probation is expensive in roughshod economic times.  In any event, let’s all realize the obvious and pass this legislation.

Increased Numbers On Parole & Probation in WA

Washington ranks near the bottom in the country for the number of people it incarcerates, but like many states, it’s having to find ways to pay for a steadily growing number of people on probation and parole.

http://www.thenewstribune.com/news/northwest/story/643665.html

According to the above article, one in 30 adults is under correctional control in the state.  With more than 165,000 people either incarcerated or on parole or probation, Washington state ranks 17th out of all the states.  But Washington ranks 44th for the people it puts behind bars – just over 32,000 are incarcerated in either prison or jail.

Consequently, the vast majority are either on probation or parole – more than 133,000, or about one in 37 people, ranking the state 12th in the nation.

The numbers of those under community supervision have increased.  Unfortunately, so have the costs. For the 2003-2005 budget, about $190 million went toward supervision. For the current budget ending in 2009, it has increased to nearly $307 million. While that’s just a small part of the state’s $1.8 billion two-year corrections budget, in a year where the state is facing a projected $8 billion deficit through 2011, officials are feeling the pinch.

Interesting times . . .

Report finds inequalities in Washington criminal fines

A report finds wide disparities in how much Washington’s criminal defendants are required to pay in fines and fees.  According to the University of Washington study released Tuesday, Hispanics are charged significantly higher fees and fines than non-Hispanic whites; men are fined more than women; and drug cases bring greater fees and fines than violent crimes do.

There were also geographic differences. One man convicted of drug offenses in Pierce County was assessed fees and fines of $600, while one convicted in Lewis County was assessed $6,710.

The study examined all superior court cases resolved in the first two months of 2004 — nearly 3,400 cases. The researchers determined that the system is illogical and hinders people from rejoining society, especially because of the high 12 percent interest rate they must pay on the fines. Three years after the defendants were sentenced, about half had made no payments.

This is disgraceful.  The report provides emprical data that our justice system is horribly inconsistent when it comes to administering costs/fees upon defendants.  Unbelieveable.  The lesson?  Don’t get caught committing crimes if you’re minority, male, and come from out of town . . .

 

http://seattlepi.nwsource.com/local/401228_courtfines25.html