Zuanich Law Newsletter
A Special Episode
Episode #19: Is DUI a violent crime under CrR / CrRLJ 3.2?
Two Zuanich Law Newsletters in a 5-day period? Did the holidays really come early?
Yes.
This isn’t just any episode, however. It’s a “special episode. Why?
Because anything involving Rule 3.2 is cool and special. CrR / CrRLJ 3.2 is a like the Hallmark Christmas movie of Washington criminal rules—even though the plot never changes, you learn something wonderful every time you study it.
In fact, this episode is SO special that I’m even taking a week off from the political candidates’ competition (for my new subscribers, you’ll learn more about that next week.
Let’s jump in.
Is DUI a violent offense?
The short answer … NO.
In Blomstrom, the Washington Supreme Court didn’t mince words: “No statute or holding of this court has deemed DUI to be a violent crime, and DUI does not fit the ordinary meaning of ‘violent’ or ‘violence.”
Well, that’s pretty clear.
The Court continued with some dictionary fun: “Webster’s defines ‘violence’ as ‘exertion of any physical force so as to injure or abuse.” Basically, violence requires intent and nothing about DUI involves the premediated use of force.
Round one to the defense.
The longer answer … EHHHHHH
RCW 9.94A.030 sets out the definition of “violent offense” in subsection 56. (subsection 56 … seriously, legislature, long enough statute).
Included in this definition are vehicular assault and vehicular homicide, which notably do not have an intent requirement.
The Blomstrom dissent hammered this point home.
If vehicular assault and vehicular homicide are violent offenses, then how is DUI not violent offense? Arguably, nothing separates DUI from vehicular homicide except for freak, horrible fate.
Of course, as this newsletter has stressed before, the dissent is the equivalent to the uptight, corporate high-flying boyfriend in the Hallmark movie that always loses out to the soft-spoken guy, the down-to-earth owner of a small bakery from her hometown about to go into foreclosure with the adorable young daughter who sweeps the girlfriend heroine off her feet …
That’s right, the dissent is irrelevant.
Then again, maybe a DUI defendant likely to commit a violent offense like a vehicular homicide or a vehicular assault?
Or is a repeat DUI defendant maybe likely to commit a violent offense like a vehicular homicide or vehicular assault?
Interesting questions. And the Blomstrom majority hedged … ever so slightly … in a footnote (where many great statements go to die).
“We conclude merely that DUI, alone, is not a violent crime.” In other words, we’re not touching or even implying that vehicular homicide or assault is NOT a violent offense.
I’d go into more law but, unfortunately, there’s no more left. Read Blomstrom and RCW 9.94A.030(56) and you’re done. (There’s a couple earlier cases like Butler but Blomstrom effectively subsumes the old ones).
Is DUI Violent? Best Arguments on each side
So you want bail for a DUI. So you are opposing bail for a DUI. Your best arguments.
Prosecutor: A repeat DUI defendant is likely to commit a violent offense because someone willing to drive under the influence is likely to do it again and we can’t be sure that he won’t kill someone next time. And Blomstrom just said that DUI alone is not violent. The court didn't foreclose the possibility that certain facts associated with a DUI can't justify a violence finding.
Defense: DUI is not an intent crime, so you can’t just assume that a DUI is likely to result in a death. You can’t just infer intent from a non-intent crime, no matter how bad the DUI is.
But … Wait … Do prosecutors have a better argument?
A repeat DUI defender faces minimum mandatory jail penalty. Isn’t it reasonable to assume that someone facing automatic jail is less likely to come back to court than a defendant not facing automatic jail? Especially, say, a felony defendant facing prison time.
By this logic, can’t prosecutors make an argument that “recognizance will not reasonably assure the accused’s appearance” in court under CrRLJ / CrR 3.2(a)(1).
Can defense lawyers defeat this argument? Yes.
Can judges reject this argument? Yes.
Plenty of reasons. Someone with no history of FTA may have proven herself willing to come back court regardless of any prior history. Or someone who has appeared for her jail commitment dates in the past may have proven herself willing to come back to Court regardless of the massive hammer of a jail sentence potentially awaiting her.
And, of course, defense lawyers may have their own return ace up their sleeves with this type of argument? The prosecutor argument about likely jail time and willingness to appear argument assumes (of course) a conviction, which gives the defense a chance to focus on the merits of the case.
For instance, “your honor, this DUI case is a pile of dog s*#$. We’re going to get this blood results suppressed, we’re going to get the stop suppressed, we’re even going to get the prosecutor suppressed, this case is so bad.”
But arguably, couldn’t you make the case that the “recognizance” argument could be more legally tenable than the “violent crime” argument?
Maybe … maybe not. To quote the best legal scholar out there. “Ehh, it depends on the facts.”
I’ll ponder this when I’m watching binge-watching Hallmark movies this weekend … I mean, ESPN, I clearly meant ESPN.
Bored in Court?: Check out my past newsletters.
About Us: Zuanich Law focuses on criminal appeals and post-conviction relief. We also handle civil appeals, family law appeals, personal injury law, business litigation, and general civil litigation.
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