The client ended up in our office after his case had already crashed and burned.  He had gotten himself a DUI years ago, hired a different lawyer, and he was trying to do everything right – he got himself into alcohol treatment and he even graduated from his program.  He was sober for years.  

And during that time, he took advantage of a great program exclusive to Washington State called a Deferred Prosecution (DP).  A DP puts a 5 year freeze on a DUI, and during that time, the client undergoes treatment and is on probation.  At the end of the 5 years, the court will actually dismiss the DUI.  It’s a special program, but you only get one per lifetime.  Our client made it more than 4 years into the program, but then, he had a relapse, like people often do, and picked himself up a second DUI.

The prosecutor asked the judge to revoke, or cancel, the client’s DP on the grounds that he had gotten himself arrested for a second DUI.  Now, the client hadn’t been convicted of the new DUI, so he still had the presumption of innocence (i.e. “Innocent until proven guilty”).  But the standard of guilt is much lower when someone is on probation, and all the judge had to do was find that the client had violated the DP by what is called a “preponderance of the evidence,” which means, more likely than not.

And the judge did just that.  But, the client’s own lawyer did him no favors.  The lawyer basically admitted that there was no defense and allowed the judge to steamroll the client.  The judge found the client guilty and hit him with severe punishments.  And so, the client appealed.  That’s when he came to our office.

People often think review/probation hearings like the one our client had are basically impossible to win, but that’s simply not true.  Even though I said above that the standard is lighter to impose a punishment when a person is on probation, they still have constitutional due process protections.  For example, the rule against hearsay still applies.  This means that, unless the government has a really good reason, they can’t simply admit a copy of a police report that says the client committed some crime, the actual police officer or other witness would have to be present to testify.

Our client’s lawyer either didn’t know that, or didn’t bother to fight to make those witnesses be produced.  The judge in the lower court had simply read the police reports and found our client guilty, which was an error of law.  And on appeal, this was our successful argument to the appeals judge, who reversed the revocation on the client’s DP and gave him a second chance.  The win will help to save the client his time, freedom, money, and job prospects.

Appeals are a great way to clean up the mistakes that often occur in the down and dirty trial level, where courts are busy with overloaded dockets and contentious cases.  Having a lawyer who doesn’t make a mistake in the first place is the best option – but a close second is having a lawyer who has the know-how to help a higher court right a wrong that has already occurred.


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