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Joe's Answers to Your Questions

So, this month I thought I would do a little something different. Instead of writing an article about one specific topic, I decided I would share with all of you some of my answers on LawQa.com. This is a free-website devoted to answering many of your basic legal questions. Users simply submit their questions and those questions are forwarded to attorneys that practice in the area of law that the question falls. Since much of my practice is devoted to criminal law, the answers I provided for you are criminal law related. Now I know this newsletter and blog generally focuses on protecting your financial assets, but this month I thought; “Isn’t your freedom an asset worth protecting?
Hopefully, these Questions and Answers can help you avoid losing one of your most valuable assets…your freedom.
Q: I always thought the officer had to read me my Miranda rights when pressing charges. The officer who pulled me over did not read me my rights at all. Do I have a case?
A: It depends. An officer doesn’t need to read you your Miranda rights, unless you are subjected to custodial interrogation, i.e. questioning you about your alleged crimes. If an officer fails to do so, anything you say can be suppressed. In your case, the fact that the officer did not read you your rights after you were arrested probably doesn’t really matter, unless the only evidence used to file charges against you was your incriminating statements.
Q: I was told that I had to wait 10 years before I could get my DUI expunged. Is this true? I really need it off my record, because I am finding it difficult to find employment.
A: Under RCW 9.96.060, you may petition the court after five years have elapsed since the completion of your judgment and sentence. This means if the case was continued for 1 year or 2 years under the terms of a stipulated order of continuance, the clock does not begin to run until those two years are completed. That being said, if the conviction is more than five years old and you meet all of the other requirements under 9.96.060, you may be able to have the record vacated.
Q: What is the criminal penalty for a fist time offender for credit card identity theft for less than $100.00?
A: Identity Theft in the Second Degree occurs when the value of the credit is less than $1500.00. This means if even only a dollar of credit is used, you can still be found guilty. This is a Class C felony and is punishable by up to five years in prison and/or a fine in the amount of $10.000.00.
Q: I was pulled over and blew a 0.06% at the police station (after refusing on the scene) and was not charged with a DUI. They then asked if I had any drugs in my system and I said that I occasionally take prescribed clonazepam for anxiety. This gave them cause to ask for a blood sample, which I gave. I know for a fact that the blood test will come back minimal or possibly negative, as I hadn’t taken any pills that day. Can they still go after me for a DUI even if the drug results come back with low levels?
A: A blood test cannot be passed or failed. It simply detects the presence of drugs or alcohol in your system. Even if the test results indicate a small amount of clonazepam in your system, its presence coupled with the .06% may give the prosecutor’s PC to charge you. Just because you blew under the legal limit, doesn’t mean you can’t be charged. The DUI statute allows the state to charge you driving above .08 OR as affected by drugs or alcohol. This means that the state will attempt to prove you were under the influence not by your breath or blood test, although it may be used, but by your driving pattern, the officer’s observations of you, and your performance of the Standard Field Sobriety Tests.
Q: I have a misdemeanor DUI on my record. My new job requires travel to Canada, Europe, and Japan. Will I have difficulties because of this? Is there any thing I can do to fix this?
A: The short answer to your question is yes. At least with respect to Canada. A DUI is a felony in Canada and because of this, it is an excludable offense under the Immigration Act. Anyone with a conviction in the United States that is treated as a felony or indictable offense in Canada is excludable from Canada, but even if the offense is not a felony or indictable offense in Canada, Customs and Immigration Officers have ultimate authority to permit and deny entry to Canada. You can apply for a waiver under the Rehabilitation for person who are inadmissible to Canada because of past criminal activity (IMM 5512).
Joe Schodowski is a contributing author to this blog and has been admitted to practice law in the state of Washington.  He limits his practice to the areas of family law and criminal and civil traffic matters.  The Law Offices of Joseph Schodowski, PLLC works in association with the Law Offices of Richard D. Seward, PC.