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Jeffrey Alan Lustick
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Jeffrey Lustick’s Answers

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  • I was charged with RCW 9a.36.050 , It was accident, done not intentionally, nobody was hurt. They offered me a diversion program

    Is the program the best option for me? What odds the program has? How long does it last ? What is Max sentence for the crime if nobody is hurt

    Jeffrey’s Answer

    RCW 9a.36.050 is a charge of reckless endangerment. Under this statute, "A person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person." This crime is a gross misdemeanor offense, with a maximum punishment of 364 days in jail and a $5.000.00 fine. No one ever gets this on their first offense. Especially if this is your first ever driving offense and there was no accident or injures, the likely sentencing range may be from zero days in jail up to three or four, depending on what court you are in.

    A diversion program is typically where the case against you gets continued out, usually six months or a year, and you are required to maintain good behavior for that time. Sometimes you will be required to also complete some amount of community service, take a driving class, or pay some amount of fees to the court. In exchange for doing all of that, the charge against your either gets reduced to some lesser charge or becomes an infraction, or it is dismissed completely. The final outcome should be something you will be made aware of in writing before you agree to enter into the diversion.

    Another important aspect of almost all diversions are the "default provisions." If you enter a diversion, but you subsequently get arrested for another crime, or if you fail to pay your fees or if you do not complete your customer service, many court will revoke the diversion and then enter a guilty verdict on your case. Once again, all of the default provisions should be clearly stated in writing and given to you before you enter into a diversion.

    The decision of whether or not to enter into a diversion program is sometimes really easy, and sometimes it’s not so easy. If you know you did the crime, then a diversion is good way to get deliverance from a conviction, provided you can remain law abiding and comply with all of the diversion’s terms. But if you’re innocent, you may want to pass and consider going to trial and seek an acquittal. Either way, you need legal counsel to guide your decision making.

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  • Can the Washington State Patrol (I know has exemptions) or any local or Sheriff's vehicle be unmarked sans ID sticker?

    According to RCW 46.08.065 Publicly owned vehicles to be marked — Exceptions. (http://apps.leg.wa.gov/rcw/default.aspx?cite=46.08.065) it says WSP is exempt from displaying things such as their agency name, the state seal, and "For official use...

    Jeffrey’s Answer

    RCW 46.08.065 certainly does require that state-owned vehicles be conspicuously marked as part of the State Motor Pool or as a publically-owned vehicle, and subsection 3 of that law provides for an exemption to the Washington State Patrol. This exemption allows the WSP to be relieved from marking any vehicles when it is being used for "general undercover or confidential investigative purposes" or for traffic control purposes. The latter “traffic control” use must be with the prior approval of the WSP Chief, but the law does not mention where that approval must be documented. Also, there is no clear definition of "traffic control" within the statute. Currently, the WSP claims that traffic enforcement is the same thing as traffic control, but to my knowledge, this issue has not ever been raised before the Washington State Supreme Court.
    Presently, the WSP seems to rely upon this statute to allow for over 200 unmarked patrol cars statewide, according to a 2012 newspaper report. The WSP has a special team of troopers who are assigned special unmarked vehicles in which to preform emphasis patrols in various parts of the state. These vehicles certainly are a very effective tool in catching unsuspecting drivers who would normally drive closer to the rulebook if they had sight of a marked patrol car.
    You asked about local law enforcement and whether or not this law permits cities, town, and counties to operate unmarked police cars. I think the law does allow that. Further down in the same statute, RCW 46.08.065 (1) it states: "This section [requiring conspicuous marking of official vehicles] shall not apply to vehicles of a sheriff's office, local police department, or any vehicles used by local peace officers under public authority for special undercover or confidential investigative purposes." Also, there is a state rule under WAC 308-96A-080 which easily allows almost any state agency (not just law enforcement agencies, mind you) to obtain undercover and confidential license plates for their official vehicles, as long as they can comply with a some simple and basic requirements.
    I take all of this to mean that there is a fairly strong legal basis for law enforcement agencies at all levels in the state to utilize undercover and unmarked vehicles. I also speculate that even if this statute was not totally complied with and an officer in an unmarked car issued a ticket or made a traffic stop leading to a criminal arrest, the fact that he/she may have used an illegitimate unmarked patrol car would probably not be material. Police officers can be on foot, in an aircraft, on a bicycle, on a horse, in someone else's car, and if they happen to observe some situation and they develop a reasonable articulate suspicion that a traffic violation occurred, they can make a traffic stop on any motor vehicle and investigate. Noncompliance with these laws and rules may lead to civil liability for the agency, but there would probably be no standing to get relief in a criminal court if a non-compliant unmarked car was used.

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  • In WA state is it legal for our neighbors to smoke weed outside (in their back yard)?

    Smoking pot in their back yard isn't a "public" place, yet it isn't "inside the home" either, so I am unclear on the law. But now that it's summer I want to leave my windows open with out smelling skunk. It's rather inconsiderate of them. But befo...

    Jeffrey’s Answer

    It sure is a different time in Washington State with recreational marijuana use now being legal, and soon there will even be legal retail establishments selling it in all parts of the state. I have heard from many people, that even though it is now legal, they do not plan to use it and, like you, they feel uncomfortable seeing people use it in their presence and smelling it on the breeze.

    Just to review, recreational marijuana use was legalized under Initiative 502 after 56% of the voters approved it in the general election of 2013. The new law permits individuals over the age of 21 to obtain, possess, and use marijuana or cannabis for recreational and non-medical uses, and it also authorizes the creation of a state-wide regulated and taxed system for producing and selling the drug as well.

    The law which came out of I-502 is RCW 69.51a, and it creates some strict limitations on this newly created legal privilege. First, as I already said, only individuals over age 21 can partake. Secondly, virtually no driving is allowed after use of marijuana, and anyone caught driving with 5 nano-grams or more of THC in their blood can be prosecuted for DUI. And third, which is what you have asked about; all marijuana use under the statute must be done “in a manner or place which is [not] open to the view of the general public.” See RCW 69.52a.060(1). The law also says that employers can require employees to not use marijuana as a condition of their employment.

    In the scenario that you describe, while your neighbors may be at their home while they are using marijuana, if you can see them doing it, it would be a violation of the letter of the law. This violation would be a Class 3 civil infraction, which is similar in rank to that of a littering ticket, so it’s not that serious. I think that if you did call the police, the call would be treated as a very low priority, and the 911 folks may actually say there is nothing they can do for you.

    As far as smelling the scent of burning marijuana, that alone would appear to be not in violation of state law. It’s similar to smelling some regular cigarette smoke inside of your apartment because your neighbor next door is smoking. It may be bothersome and annoying, but it’s not technically illegal.
    Perhaps you can talk to your neighbors and ask them to go inside or to not smoke pot while you are home. If this is an apartment complex, you may be able to ask your landlord for assistance.

    By the way, some towns and cities in Washington State are acting to become marijuana free zones, which would make it once again illegal for anyone to use or possess marijuana. I do not know where you live or if your town is considering this, but if you feel strongly about this issue, you may want to contact your city government and ask.

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  • What do I do about police misconduct

    I am a 58 year old women , During a traffic stop the male police officer put his hand on my vagina [inside my clothing] I filed a formal complaint the Officer who is doing the investigation has turned this into a witch hunt making me appear as tho...

    Jeffrey’s Answer

    Get a civil rights lawyer right away. Meeting with a lawyer on this sort of case is usually free, and he or she will listen to what happened to you and then chart a course to take to best handle the situation. If you are pursuing this on your own, you can already see how police an close ranks and work against you.

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  • What does 0850 stand for? When your talking about a government agency?

    A state agency.

    Jeffrey’s Answer

    If it's in reference to a time or an event, it probably means 8:50 AM.

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  • Can i request clearer copies of pics taken as evidence.

    A downward angled picture three feet away of the pocket in a car door where a glass pipe alegedly was which led to probable cause for a search warrent was taken at place of arrest but nothing can be seen in it. But a close up picture taken of t...

    Jeffrey’s Answer

    The issue here is challenging the warrant. If you can show that the earlier photo was taken before the warrant was issued, there may be some question about whether the evidence was there at the time of the stop or if it may have been planted.

    You really need to get your lawyer to conduct interviews the police officers who were at the scene and verify what they will say about the two different photos. Even though the photos each show something different, the issue will most likely turn on evidence from the police at a suppression hearing.

    I have seen cases like this crumble because police embellish or outright lie about what they say at the scene of a traffic stop, so be careful how this issue is approached. In other words, keep your suspicions to yourself until those police officer interviews can be conducted in a proper manner.

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  • If your speeding ticket is in collections can you still do the relicensing program

    I cant afford to pay it and im tryng to look for work

    Jeffrey’s Answer

    Many District and Municipal Courts have re-licensing programs. These programs usually allow people with lots of unpaid traffic fines to set up plans for making monthly payments or to instead work off any unpaid fines by providing community service. However, the existence of these programs can be hit or miss, as some courts never offer them, and yet other courts only offer these programs on a periodic or infrequent basis.

    In past programs that I am familiar with, the court has an application form that you fill out and list what tickets are at that court and you explain what your ability to pay the outstanding fine will be if allowed to enter the program. You may have to appear in court before a judge to have your application reviewed. And to answer your question, most programs sometimes do allow you to participate even when you have tickets that have gone to collections. Although nowadays, may courts seem to have some pretty strict contracts with collection agencies under which they will not pull back any unpaid tickets. This can be why the re-licensing programs are limited in duration and availability.

    One benefit of having your ticket removed from the collection agency by the court is that it’s way cheaper. Collection agencies add a lot of fees and costs on your unpaid fines. It may seem unfair to do that, but this is what the RCW allows.

    Now if your tickets are in collection and your local court where those tickets are at does not have a re-licensing plan, you can contact the collection agency directly. If you agree to a payment plane directly with the agency, state law allows the agency or the court to release your license while you are successfully making the payments to the collection agency.

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  • Can someone who is already on DOSA get mental health court on a new charge???

    My friend is on DOSA and she got a new charge of identity theft can she get mental health court for the new case if her evaluation comes back that she does in fact need mental health??

    Jeffrey’s Answer

    To begin with, we currently have two kinds of Drug Offender Sentencing Alternatives (DOSA) programs in our state. The traditional and most common type is the prison-based DOSA and the more recent creation of a residential-DOSA program where the person does not go to prison but rather is placed directly on local supervision. Would assume that the person in question has the residential-DOSA, otherwise there would be no way to get them even considered for mental health court.

    And also for those reading this who don’t know, Mental Health Court is basically where the prosecutor and the court allow a defendant to avoid jail and prison if the offender agrees to complete mental health treatment and be on local supervision by court staff. Often people in mental health court receive free counseling or psychological therapies which they may otherwise not be able to access on their own.

    Mental Health Court is a pre-conviction program where the defendant essentially works off their charge by successfully completing their required treatment and remaining out of trouble. However, DOSA is a post-conviction program where the person has already pleaded guilty to a felony and works off their jail term by going through drug treatment.

    The real issue here is the impact of the new felony charge on the DOSA sentence. One of the strict requirements for people in a DOSA sentence is that not be arrested for nor charged with any new criminal offenses while they are on DOSA. In the DOSA program, when a defendant gets a new charge (or fails in their drug treatment) the Department of Corrections will file a violation report. The DOC has an internal adjudication system for prison-based sentences, but they usually use the local courts for residential-DOSA violations. So if the DOC did seek to violate the person who got the new charge and either the DOC judge or the local judge agreed that there was a violation of the DOSA terms, that person could be sanctioned. These sanctions can include being sent to prison for the remainder of the sentence or given a term of short prison (or jail) stint and released back into the DOSA program, but either way, they wouldn’t be available to participate in local Mental Health Court.

    Another consideration is the requirements for the local Mental Health Court. Most of the times, these local specialized courts (like Veterans Court, DV Court, Drug Court) are heavily funded by federal grants which come with a lot of strings attached. In some local special courts, only people who have no prior felonies can participate. In others, it could depend on what the prior felony was for. To make sure of this, do a web search for the court where this person’s new charge is. Look to see if they even have an active Mental Health Court (Most courts in Washington do not have one) and then see what the pre-requirements are.

    Sorry that I cannot be more specific with my answer, but as you can see, there are a lot of things to consider in this situation. This individual needs to be represented by a qualified defense counsel who is well versed in the local rules for whatever court this case is happening in. Good luck.

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  • Can a person get released from FDC if they have to wait 10mo. until trial?

    May 10 was the date set for trial, but due to an 8000 page discovery the trial date has been pushed out until the end of January. Can a person be release until their trial.

    Jeffrey’s Answer

    I agree with the other two attorney's replies, but I may add that having the case continued for such a long amount of time, if the continuance was NOT AGREED and was requested by the prosecutor PLUS having an inordinately large amount of discovery could be good cause for another review of the detention.

    Also, medical conditions, financial distress, or family support issues are some common reasons to seek reconsideration.

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  • I am 23 years old man Got in trouble first time for residential burglary@thieve 3 What sentence can I get for it?

    I am with my friends got in someones appartment. We took a small safe.We didnt open it.Safe was return back

    Jeffrey’s Answer

    Assuming you have no other offenses adult or juvenile on your record, the following may occur on your case as far as sentencing goes.

    To begin with, a residential burglary charge is a Class B, nonviolent felony with a maximum punishment of up to 10 years in prison and a fine of up to $20,000.00. No one gets this for their first offense. Rather Washington uses an adult sentencing guideline for felonies. Assuming no other felonies are charged, your range as a zero point offender is 3 to 9 months in the county jail. Under state guidelines, you do not get sent to prison if you receive less than a year and a day sentence. Also, assuming that you are a zero point offender, there would be no probation or Department of Corrections community custody following the sentence. Most courts impose fines and various filing fees and court costs. There may also be an order to compensate any victims who had out-of-pocket losses for the offenses.

    As far as the theft 3rd degree charge, this is a gross misdemeanor with a possible maximum punishment of 364 days in the county jail and a $5,000.00 fine. Usually when a misdemeanor is added to a felony, for sentencing purposes, any time served on the misdemeanor will be added to the time given for the felony. However, in a plea agreement situation, it's common for misdemeanors to fall away and get dismissed if the felony is pled to. Another outcome could be that you have to plead guilty to the misdemeanor for conviction purposes only, and you would get no additional jail time.

    These are serious charges, so please do not go it alone without a qualified defense counsel to assist you. I hope this information helps.

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