DUI & DWIClients’ ChoiceAward 2012-2017

Beware of Phone Scams and Know Your Rights

Beware of Phone Scams and Know Your Rights

From phone scams claiming there's an arrest warrant out for you to how a MIP can affect the whole family to the new DUI-E law, Jonathan and Dillon discuss current legal issues that pertain to you.


Episode Transcript

Dillon
Scam alert! This is something that we've heard about in the news, but actually, our guest this hour here on Legal Docket had it happen to ... Well, it didn't all the way happen to you, 'cause you didn't actually get taken by this scam, right?

Jonathan
I did not.

Dillon
Okay. Local DUI attorney Jonathan Rands on the show with us this morning. We've got some DUI stuff to talk about, some traffic stuff. This is not necessarily specifically DUI at all. Has nothing directly to do with that, but this is The Legal Docket, you are a lawyer. And what's interesting to me is we heard about this in the news. I had never gotten one of these calls myself. You got one of these scam calls the Whatcom County sheriff's office had been warning us about, and even you ... I mean, you know the lingo. You know the law. Even you were saying, "Wait, what's going on here?" Explain what this is, how this works.

Jonathan
Okay. First of all, good morning, by the way. First of all-

Dillon
Good morning. Good Sunday morning.

Jonathan
I hadn't heard about any of this beforehand, so maybe I should listen to you more.

Dillon
I guess so, I guess so.

Jonathan
No, but I was in my office ... I think it was Wednesday, and the call came to my office. My receptionist assistant picked up the phone, and then just basically said, "Hey Jonathan, Sergeant Smith from the Whatcom County sheriff's office is on the line." I know a lot of officers, and I can't tell you that I've got ever single one of them's names memorized. I see officers wandering the hallway in court, and I see names on police reports and stuff. But does it ever get more generic than Smith?

Dillon
It doesn't.

Jonathan
And so it was not really that much of an alarm in any way, shape, or form. It's kind of usual for sheriffs to call me back about things. So I pick up the phone, and he introduces himself very formally. I mean, the tone is very much, for lack of a better word, if you can describe it as law enforcement, but very ... and I imagine there's a script and I imagine you do something often enough, you sound fairly convincing. Basically begins the conversation by letting me know that thanks for taking the call, he apologizes in advance, but the day's going to get a little more complicated. So far, I'm not thinking too much of anything. What, are you going to talk to me about a client or something that happened?

Dillon
Right.

Jonathan
And he does a little bit of an intro.

Dillon
Did he know he was ... I guess he knew that he was calling an attorney.

Jonathan
Well, it's interesting what he knows, because he's done a little bit of background. I don't know if he knows that I'm an attorney or I was an attorney, but since he was referencing an old address, which is ultimately ... What happens is, he introduces himself and then begins by saying, "Are you aware that you missed a federal jury summons or a federal jury date for a jury trial?" And of course, if you've never gotten notice of it, the answer is, "No, I wasn't aware that I missed it."

Dillon
Right.

Jonathan
"Are you aware that it's a federal misdemeanor to not do your civic duty?" Now, I know a lot about jury duty and what happens, and I have a small federal practice with respect to DUI defense. But I don't have the rules memorized, and I'm 99% sure that what he was telling me wasn't actually any sort of violation.

Dillon
But there was enough ...

Jonathan
But there was enough that I was curious. I kept listening. I didn't say a whole lot, I just let him do his thing, which is he confirms your mailing address, and it was wrong. Basically said ... and he gives you a date. "Back on May 3rd," and you're not looking at a calendar, so you don't know if it's a Saturday or not, but "There was a summons sent to ..." And he gave my business address from where I moved a year and a half ago.

Dillon
The old Stanello's spot that you aren't in anymore.

Jonathan
Yeah, which is 1512. And I'm now at 1200 Old Fairhaven Parkway. So I said, no. By the way, I said, "Okay. No, I didn't receive a summons. That's not an address on record for me, even if you did send it there." So I argued with him a little bit, and he's like, "Well, I have a signature here for certified mail that it was accepted," and I believe he used the word Miss Carrie Underwood. Now, at the time, you're still thinking something else-

Dillon
What?

Jonathan
... but in-

Dillon
As in the country singer?

Jonathan
Well, it's a fairly generic name.

Dillon
Yeah.

Jonathan
We know a Carrie Underwood, right? And when you're sitting here listening to this, it doesn't click right away. Because first of all, you're being told that you've missed a date, it's a crime, and ultimately, there's an arrest warrant for you, and this is who signed for the subpoena. So you heard these things, and it's not like you hear right away, oh, you're full of it, Carrie Underwood's a rock ... not a rock star, a pop country star.

I just keep listening. I said, "All right, well, suffice it to say I didn't get it and that person's not associated with me in any way, shape, or form." He's like, "Well, that's okay, but I'll need you to come down and sign an affidavit." "All right, fine. I can come to ... Where am I going?" "Well, you're going to come down to the Whatcom County sheriff's office." "All right, I know where that is." "But before you do that, first of all, I want to back up. Before you do that, this call is being recorded." Fine, it's being recorded. We are a two party state, so you can say you don't have my consent, but I was seeing where this was going, because he had my attention.

Dillon
Well, if he had been recorded that that whole time without having said that at the beginning of the conversation, technically that's not legal.

Jonathan
Correct. So he begins by introduction, a couple sentences, and then tells you it's being recorded.

Dillon
Which he's probably lying and it's probably not being recorded anyway, but just trying to rattle your cage a little bit.

Jonathan
Yeah. Well, I mean, it's a very good scam in terms of really shaking you up for a moment. In terms of saying, "What are you talking about?" And then people start hearing, "Yeah, I'm looking at two misdemeanor warrants." Now, he then goes on and says, "But because of the people that we know in common ..." So it's a little bit personal. This is why I'm not sure if he knows that I was a lawyer or not, because yeah, I know a ton of sheriff's office. "Because of the respect that they have for you, this is a courtesy call. I'm letting you know that we're not going to serve these warrants and come arrest you, but what you need to do is you do need to come down and sign an affidavit, but before you do that, these warrants, there is a federal bond that needs to be paid."

Dillon
I knew this had to come around to money at some point, right?

Jonathan
I'm like, "All right. What's that?" He goes, "Well, it's $982 per misdemeanor." $982 is a really weird number. Bonds are $1000, $1500, $2000. They're round numbers. I'm like, "All right. You want me to bring that with me?" "No, no, no, no. Here's what we need you to do. Because it's a federal bond, there's only three places that you can go to do this." It's a QFC, it's a Office Depot, and I think he might have said Safeway. There's kiosks there where what you need to do is put the information about ... Go to the kiosk. You'll find your name there, or you'll find some indicator as to what you're doing. I think it gets more clear if you actually go and do this, but what you do is you put the money into ... You have to go to the bank. You have to either bring cash or you have to get a draft. And again, I didn't get into the details 'cause I never got that far.

Dillon
Right.

Jonathan
Ideally, what you do is it's a voucher card. In the end, what happens is you put money into the machine. You get a voucher, and then you are instructed before you go to the sheriff's office again to sign your affidavit, to call him back and he gives you a direct telephone number. It's a 360 area code. To call him back and then you're going to read these numbers to him.

Now, I never got to that point, but when I was talking to the real sheriff's office once I hung up, they explained that what he's doing is you're putting money into some sort of a common account. I think it basically works out like a prepaid cheque card. You give him the numbers over the phone, they then pull that money out, you go to the sheriff's office all in a panic saying, "I've paid everything," and they look at you and they said, "What are you talking about?"

Dillon
Yikes.

Jonathan
So I never got that far, but I was 1% concerned.

Dillon
Just enough to think, hm.

Jonathan
And again, I think this is a credit to how good it is, because there wasn't anything that really jumped out in terms of saying, hey, this is obvious. And if you don't have any background in this story, which as soon as I hung up and I did a search, I'm like, oh my god, there's stuff all over the place. I feel foolish for having 1% of a doubt. But when I finished with the conversation and I said, "That's fine. I'll tell you what, I'm a lawyer, and the last thing I'm going to do is anything for myself, so I'm going to call a lawyer and I'll come down and I'll sign your affidavit, but I'm going to do it with my representation of council."

Dillon
And he's thinking, oh, this maybe isn't going to result in $1000 in my pocket.

Jonathan
He's probably thinking that.

Dillon
Scammer.

Jonathan
But what he does say to me is, "Well, that's your right, and of course I can't stand in the way of your ..." He says the appropriate stuff. So then he gets an alternate phone number. He's really looking for a cell phone number. So I give him my cell phone number, and I hang up the phone. And I do exactly what I said I was going to do; I put a call in to somebody that I know does federal stuff all the time.

Dillon
Right.

Jonathan
He was unavailable at the moment, and then I called the sheriff's office, and I didn't even finish my sentence.

Dillon
They said, Jonathan ...

Jonathan
I forget who answered the phone, but it was an officer or deputy, and they say their name, and I introduce myself, and they say, "Yeah, we know who you are. How can I help you?" And I said, "Well, I just received a call from the Whatcom County sheriff's office from a Sergeant Smith, and he said ... " She says, "It's a scam." So he's using Sergeant Smith generically. I said, "Okay." And I don't know why I said this, but, "Are you sure?"

Dillon
I don't know if the sheriff's office even has a Sergeant Smith.

Jonathan
That was the next thing. I said, "There isn't a Sergeant Smith on staff, is there?" She's like, "No, it's a scam. Here's a number, you can report him to the federal authorities. If you gave him money, now we'll take a report from you for fraud. If you didn't give him money, the federal government or the federal authorities, they just want to know that you were contacted by him," and such and such. I was like, "Okay, well, I didn't give him any money. I just hung up the phone, I'm just checking." She's like, "Yeah, don't worry about it." And I said, out of curiosity, "So there's no arrest warrant for me there?"

Dillon
And he still had you!

Jonathan
Yeah. She laughed and chuckled, she says, "No, there's no arrest warrant. Sergeant Smith doesn't exist." I was like, whew. But there's that one thing at the back of your mind, right?

Dillon
Are you hiding something, Jonathan?

Jonathan
No.

Dillon
Do you think you might have a warrant out for your ...

Jonathan
I mean, even if there was, the very fact pattern of somebody else signed for a subpoena, I knew it wasn't going anywhere. But at the same time, I was like, "When did they change that rule?" That's what I thought in the back of my mind.

Dillon
Well, I want to talk about it. Jonathan Rands, local DUI attorney is our guest in studio this Sunday morning here on the Legal Docket. He gave a phone number. Did you write that down?

Jonathan
I did. I didn't bring it with me. But-

Dillon
Not that I want to share it on the air, but-

Jonathan
He called me back, as well.

Dillon
He called you again.

Jonathan
Yeah.

Dillon
This is after talking with the sheriff's office.

Jonathan
Yeah.

Dillon
So knowing that it was all scam.

Jonathan
Yeah.

Dillon
Okay, I want to find out what he said to you when he called you back.

Jonathan
All right.

Dillon
But we got to take a quick time out. As we continue, Jonathan Rands with us for the hour here on The Legal Docket. We do have some DUI defense stuff to get into, some driving ... More and more reaction to this new state distracted driving law, so we'll get into that later this hour as well. This is The Legal Docket here on KGMI Newstalk 790. I'm Dillon Honcoop, he's Jonathan Rands, and his practice is in Fairhaven, right there ... What did you say it was? 1200 Fairhaven.

Jonathan
1200 Old Fairhaven Parkway.

Dillon
1200 Old Fairhaven Parkway, suite ...

Jonathan
303.

Dillon
303.

Jonathan
The old Dick Donahue suite.

Dillon
Oh, really? Another friend of the state's.

Jonathan
That's what people tell me, like, "It's his." I'm like, okay. Not anymore.

Dillon
Following in Dick Donahue's footsteps since he moved out to Pacific Highway in Ferndale there. 360 306 8136 is the phone number, and that 360 is now more important than ever since you won't reach the office without. 360 306 8136 to reach his office. There's also ... I always recommend people check out his website. jrandslaw.com. Rands is spelled R-a-n-d-s. Very simply. J, just the letter J, jrandslaw.com. More coming up here on The Legal Docket, stay with us.

Dillon
I was just mentioning the website there before the break, jrandslaw.com, and Jonathan mentioning to me over the break, you got a brand new blog post there. He's got a ton of information. Blogs and different informational pages about different things related to DUI defense, et cetera. And Jonathan, you're saying you just got a brand new blog up there about MIP. And we're not talking about most important person, even though that was the joke in high school, it doesn't make you feel like the most important person if you're actually in the situation. How do I know? No, it didn't happen to me. No, just don't go there. But I know people who it did happen to back in those days, and it's not a fun situation at all.

Jonathan
You had an air quotes "friend" go through that situation?

Dillon
It was not me, okay? I did not do that. But anyway, a new blog about ... And about the family impacts. Parents and legal guardians, et cetera, involved when a minor in possession of alcohol gets into trouble for that.

Jonathan
Or a minor permitted to possess or consume under circumstances that are not authorized by law. A lot of people don't know about that, so I thought it would be timely, with summertime graduation bonfire and all that stuff.

Dillon
Yeah. Check it out, jrandslaw.com, the website for that. We've been talking about this scam that almost got you, Jonathan. This guy pretending to be a Whatcom County sheriff's Sergeant, and he called you and told you that you had a warrant for your arrest. Why? Because he said you failed to appear for a jury summons in federal court, which would be in Seattle, right? And he was saying, "Well, it's a courtesy call, we won't actually arrest you if you pay this money and then come sign a thing." Of course, the crux of it is the pay us some money. Obviously if you would have gone through with it, he had a way for you to put some money basically in a way that he could access it on a prepaid card or something, and then he'd probably take that money, transfer it somewhere else quick, and run, essentially, and you never hear from him again.

Interesting part is, you told him, "Look, I'm an attorney. I'm going to do this, that, and the next thing." You never actually paid him the money and you checked into it. Then he called you back, you said?

Jonathan
Yup.

Dillon
I'm really curious. What is this guy going to say on the follow-up call? Now he knows for sure that you're an attorney and he still thinks he's going to scam you.

Jonathan
Well, that's the interesting thought process, right? And maybe my questions to him were convincing enough that he thought he had something. But if somebody says, "I'm going to call my attorney," I think it's a signal that all bets are off under the scenario. It took him about an hour. I gave him my cell phone number, and I wrote down the number. I said, "Is there a direct line that I can call you back?" And he's like, "Yup." And he gives me a 360 number. It's 224 something something-something. Then I hung up, did my due diligence, and I didn't think about it again. I sort of just left it alone

Dillon
All right.

Jonathan
Then my cell phone rang about an hour later, and I saw it was the same number that he gave me. But before that, once I realized that I had his number, I thought of all sorts of ways that I could mess with him.

Dillon
Yeah, that's kind of where my brain is going.

Jonathan
My wife had stopped by the office, and when I was telling her the story of what was happening before I told her that it was a scam, she lost her mind. She was like, "How can this happen? I need to go to the bank." I said, "Don't do anything. We're not doing anything just yet." Then I reported back to her, I go, "Yeah, it's not real." She was like, "That makes me so mad!"

We were sitting there thinking, what can we call them back and ... She used her cell phone and called the number back, and just started asking for fictitious people to see what he would do. He was like, "Nobody by that name's here," and she's like, "Oh, well I really need to get a hold of that person." Hung up, and then five minutes later, he called her back again saying, "Who were you looking for again?" But then it dawned on me. I thought we should call him up posing as a sheriff with a federal warrant and just run the scam back on him so that he would know full well. But I didn't get there.

Dillon
Then he'd probably report you and you'd get in trouble.

Jonathan
Maybe.

Dillon
Telephone harassment.

Jonathan
Probably. He started it! So he called me back and I answered my cell phone, and he said, "Mr. Rands, I haven't heard from your attorney yet." I said, "Yeah, you're not going to." He's like, "Well, why not? I'm waiting for him." I said, "'Cause you're not real," and I hung up. But before I hung up, I heard him say, "Well, if you go to check out-" And it was like, click. That was the last I heard of him.

But it was an interesting hour. And I'm not going to say that I'm on the cutting edge of news. I pay most of my attention to the practice that I do. So if something is happening in the DUI world, yeah. But if you're not aware of all current events or you're not somebody that listens to the radio all day long or even reads ... I read first thing in the morning for five or 10 minutes on my tablet, and then I get to work and I read in the evening. So it's not a surprise to me that I wasn't aware that it was going on. And if you're not, that's one of the reasons I wanted to talk about it.

Dillon
Well, there are a lot of different versions, too. It gets to the point where it's hard to keep track of which scam is which, and what's real and what's not. This whole jury duty thing is ... It's something that does freak people out because technically, and I don't know how far we can get into this, 'cause I know it can get a little complicated with what the law says, but there are technically some legal requirements for responding to a jury summons, right?

Jonathan
Summons and subpoenas, especially with jury duty. It's a civic duty, and that's how we describe it. It's one of the things that you have a right to do, it's one of the things that is a privilege when you are a citizen of this country. But at the same time, it is treated or thought to be such an inconvenience. But because it is a serious thing, a serious process, there is the authority for the courts to take action against people that don't report.

I don't necessarily want to talk about it in terms of how to get out of it or what the sanctions are or aren't because I believe in the system enough that I do believe that we should do our civic duties and take care of it.

Dillon
Yup.

Jonathan
But what I can tell you is that if there is ever a situation where not reporting for jury duty, and that results in some sort of sanction or arrest or allegation, it is very rare. If you think about the dynamics of what it would take to undertake that, meaning jury summons or the jury pool goes out ... Here in Whatcom County, anyways, you have juries that start on Mondays for superior court and district court, and district court, you have a possible two courtrooms going anytime and superior court, I think you have three. For each pool or each courtroom, for instance, you would need 30 to 60 people.

So there's a mass mailing that goes out, and everybody congregates and reports to the auditorium downstairs in the court house, and really, if you do the math on it, it's a couple hundred people. The logistics and the dynamics of enforcing your civic duty by doing something after the fact, and you'd have to know why people don't show up, as well. People that legitimately can't serve generally mail in, "I'm not in the country," or something like that, or they show up.

I was summoned early summer, and I cleared my day 'cause it was a Monday, thinking that I would at least report and I'd probably get bounced during voir dire in some way, shape, or form. But nothing happened that day. They weren't selecting the jury, so the telephone instructions were to come back the next day, and my number was up for the next day. I was like, "Oh, man. I cleared Monday. I pushed everything to Tuesday." So when I reported, I reported in and they had the ability to excuse you at the door. And what I did was that I checked in and I said who I was, and she knew who I was, and I said, "Just so you know, I know all the actors in this case. And inadvertently, I was speaking with the actual defense attorney about this case. We were just talking about the trial they had coming up." And she looked at me and she said, "You can go."

Dillon
Yeah, they don't want you on the jury. Yeah. That's not going to work.

Jonathan
So there are legitimate reasons not to ... And the only reason there was not because of I knew anybody, it was because I had ... It was important to share that I had knowledge about the case because you don't want jurors that have any knowledge of the case. It's actually one of the questions that you ask that really gets you out of there sooner than later because we want disinterested parties.

Dillon
Right.

Jonathan
The legality of it is, my sentiment is, you get a summons, you go. You serve if you're selected, and you go through the process. But what a lot of people don't understand is even though you're summonsed, very few people actually sit on a jury. I have all of those numbers. In district court, it's six. In superior court, it's 12. Sometimes there are alternates, making it seven and 13. Sometimes we do two alternates in superior court, depending on how long the trial's going to be. So just because you get summoned, doesn't mean, "Oh, my week is ruined." But at the same time, sort of a public service announcement, your week may be ruined, but it's also a privilege of the society that we live in. And I think it's the greatest system out there.

Dillon
If you were on the other side of that equation, if you were accused of a crime, you certainly would way to have a fair jury making that decision if you ended up in a jury trial. We're late for news we've got to run here on the Legal Docket. We'll be back with more with local DUI attorney Jonathan Rands. 360 306 8136, the phone number for his offices. The website, as we were mentioning, jrandslaw.com. You should check that out, check out the new blog that they've got there on ... that Jonathan put together on MIP cases. Minor possession cases, and some of the things that go along with that. Lots of other blogs there as well. Jrandslaw.com. Stay with us. More coming up here on The Legal Docket.

Dillon
A lot of people are finding out about Washington state's new distracted driving law. They're calling it DUI-E, driving under the influence of electronics. We've talked about this a few times here on the program that this was coming, and we had a conversation the morning that it went into effect with Jonathan Rands, local DUI attorney. To this point, Jonathan, you deal with more actual DUI cases, because I don't think DUI-E is an actual DUI case the way we understand it. I know you've expressed some concerns, and I share that too, with the terminology that they decided to use by calling this distracted driving, driving under the influence of electronics. It's really not ... They're trying to make it sound more scary, I guess.

Jonathan
It's really sensationalized, yeah.

Dillon
And it's not that it's a good thing, and it's something that they do need to be dealing with and enforcing, and people need to be careful about, but it's not on par with someone who's caught driving under the influence of alcohol or drugs, and that's a whole different ballgame.

Jonathan
Mm-hmm (affirmative).

Dillon
We're talking at some point misdemeanors and felonies, and court time, and-

Jonathan
Jail.

Dillon
Jail time, and interlock devices and all ... We're not talking about that with quote-unquote "DUI-E". But people have already been getting tickets for this. A lot of people are a lot more aware all of a sudden what they're doing with the phone, which is maybe a good thing. But you've had some concerns about how they've done this as well, beyond just calling it DUI-E.

And then you shared with me a couple of weeks ago, right as this was all starting, a petition, and I was checking that out. A petition that somebody started somewhere else in the state saying, "We want to see changes to this law." So talk about where things are at. Right now, just to bring people up to date, the new law, and I think a lot of people are aware of this, you get in trouble for basically touching or holding a cell phone, electronic device-

Jonathan
Electronic device.

Dillon
... a tablet, you name it, while you're driving. No more of the old hold the smartphone flat in front of your face and talk on speakerphone. People used to be able to sort of skirt the intent of the original distracted, or the cell phone and texting law, and get away with it.

Jonathan
It allows for limited ... for lack of a better word, touching of the phone. Sounds kind of weird when you talk about it.

Dillon
From an enforcement perspective, since it's a little ambiguous as to how much ... I don't even want to use the word keystroke, because it's not a keystroke, but how much can you touch your phone?

Jonathan
You're supposed to have it mounted now, so you're allowed to look at it, which is the big problem with distracted driving, I think, is you take your eyes off the road.

Dillon
Right. Whether you're holding the device or whether it's clamped into a thing that's suction cupped to your windshield, either way, you're not looking at the road.

Jonathan
Right. And so there is, I'm going to say, discretion in terms of how ... For instance, speed dialing. You got a one-touch function on your phone or maybe you've got a pattern that you quickly, swipe and then you've got a face circle or some sort of a speed dial. Sounds as though that's okay under the law, which that's fine, but ... You can't hold it, but you can touch it. You can't hold it in your hand and talk. I can see that. Two hands on the wheels, no ten and two. But it just is weird. And then the law itself embraces under the distracted driving title either behaviors that ... Really, that's what started the petition, right? The petition talks about really, under the letter of the law, strict interpretation of it, you really can't do anything, let alone touch your phone with one finger, such as eating, and-

Dillon
Right. That's the part that a lot of people didn't clue into when this first came out, when this was first passed, that eating and grooming and smoking were also a secondary offense, as they call it, under this law. Was smoking on there?

Jonathan
Yes.

Dillon
One of the only places that you can smoke in the nation is in your car.

Jonathan
Is in your car. If there are not children in the car.

Dillon
If there's no children in the car. Now that ... Well, I guess you have to pull over and park to smoke your cigarette in the car now, under this ... Technically, you can still smoke a cigarette. You can still comb your hair. I think the whole grooming thing is weird. Technically, you can still eat in the car, but if you're distracted and shown to be distracted, and that causes you to make some other kind of traffic violation that is worthy of being pulled over for, then, because you were distracted by eating, smoking, or grooming, you get a $100 ticket. That's the way I understand it.

Jonathan
So, let me go back to some of the comparison that ... What you just said raises an interesting point. In the DUI world, there's DUI, driving under the influence, and there's physical control, right? And remember, we've talked about physical control when those circumstances where you pull over and, for lack of a better word, you pass out. Law enforcement comes upon, and you can be charged physical control, but it has an absolute defense of safely off the roadway.

Here's why I hate the comparison of DUIE, because you just talked about what would potentially be safe under the distracted driving law. But we don't see the comparative physical control component of this like we do, and so that's just another way of the dislike, if you will, of trying to marry the two together. Because you just said, if you pull over and you do these things, you're safe, sort of. Unless, of course, something else happens.

I just ... I don't know. The petition, I think, makes a good point. When I read it before I sent it to you, the person who started it, I believe his comment was, "When the government starts paying my insurance, my gas ..." And once other issue that comes along with cars, "then they can regulate what I do inside of my vehicle." It's also interesting because in criminal law, a motor vehicle driving down the road has the same private protections by the Washington constitution of article one, section seven, which is basically a transportation, if you will, or an expansion of our fourth amendment right to be let alone in your houses.

So, you have privacy in your vehicle. The difference between your vehicle and your house is that the vehicle is, in fact, open to public view. And houses are not, because you have to actually, most of the times, go onto property and look in the window to see something.

Dillon
Curtilage.

Jonathan
Yeah, but if you have a curtilage, or it's best described as if you've got a path from the sidewalk to your front door or to your mailbox, that's an invitation for the public to sort of walk up. So, if you walk up to a house and there's nothing ... and you've got some windows and your door, and law enforcement is doing something, delivering I don't know ... Law enforcement walks up, looks in the window as they're standing there, sees a big pile of cocaine, well, that's open to public view.

Same thing with a car. You have the right to be let alone, but you are open to public view, and so that's how this cell phone law can be enforced is yes, you have privacy in your vehicle. But, it's somewhat limited because of how easily seen it is. But he makes a good point, because smoking, for instance, it's one of the things that is very limited as to where you can do it. And you can't do it in your car anymore. Interesting thing about smoking is what about people that chew? You presumably need to use your hand in at least one of them, whether-

Dillon
Get the can of chew out, yeah.

Jonathan
Or, people that chew and drive in their car usually spit, right? What do they do? You grab a cup, an old coffee cup. The guys that I know that do it, they take an old coffee cup, they stick a bunch of Kleenex or a paper towel in there, right, and they keep the lid on it and they just drive down the road and they spit. What about drinking a bottle of water? There's one in my car right now. It's summertime.

Dillon
Exactly.

Jonathan
It's just ridiculous in terms of how far it can be enforced. Then I read something else interesting, that in May, only $19,000 was actually earmarked for enforcement of this. And I don't know if anything more has happened, but as soon as the $19,000 is out, there's no emphasis. And what we've had, and maybe this is by design, we've talked about the dangers of distracted driving with this new law over and over and over again. And maybe that's the point, is just simply to make people aware.

I haven't had anybody ask me to defend them on a distracted driving infraction just yet. I don't do a lot of traffic infractions. I don't even know if I will, but I haven't even had the opportunity to read a report or an allegation that would be interesting in any way, shape, or form. It's just ... it rubs me the wrong way for a variety of reasons.

Dillon
I got a question for you, and maybe this is too far-fetched, but I'm going to throw it out there. Right now, it's a secondary offense to eat or to smoke or to groom under this new distracted driving law. Seat-belts used to be a secondary offense. Then, eventually, they became a primary offense, meaning if it could be seen by a law enforcement officer from outside the vehicle that you were not seat-belted in, they could pull you over just for that. They wouldn't have to have the tail light out or whatever other excuse to pull you over. Could we see eating someday down the road become a primary offense? "I saw you eating that double Quarter Pounder with cheese, you're getting pulled over and ticketed!"

Jonathan
Before I answer that, let's make clear what primary and secondary is. I think you make a good example of it, but primary offense means that the officer sees it and it's grounds to stop the vehicle. Secondary means that he probably doesn't see it, but when the vehicle is pulled over for another reason and it's seen, it's a secondary citation. So by saying the seat-belt use of it, you're stopped for speeding. When the officer walked up to the vehicle and you're not buckled in, they could technically cite you for a no seat-belt violation, and that's the difference between first and second.

Now, that was always difficult, because a lot of times, the first thing you do if you're a guy reaching for your wallet, if you're right-handed in your driver's seat, you take the seatbelt off in order to move around and be able to do that.

Dillon
Yeah, yeah.

Jonathan
A lot of times, an officer would see that and that wouldn't be an issue. Sometimes it wouldn't, and that would be an issue in a contested hearing at court.

Dillon
"You weren't belted in." "Yes, I was! I just took it off to get my stupid wallet out!"

Jonathan
I think almost every secondary infraction that is on the books has made its way to a primary infraction. Now, here's something that comes to mind. When the seat-belt law became a primary infraction, I was still a public defender. I challenged the constitutionality of it. My office, myself, and a felony attorney. But it was first challenged by a really smart lawyer down in a very small county in southern Washington, and the judge did a bunch of research on it, and the judge in that district court, I forget the name of it, found that it was unconstitutional. Because it was overly broad.

This new law may very well be overly broad. But ultimately, I found that decision ... I called that judge in that district court and I said, "Give me your research." And the clerk basically sent me up the research. I did what every good lawyer does, which was used his research. Turned it into a brief. Because at the time, I had multiple DUI cases where the officer said that they saw the seatbelt hanging as the person drove by, and that was the basis of the stop, which then turned into a DUI. So I was challenging the legality of the statute because if the law's unconstitutional, the stop was unconstitutional and the DUI would be dismissed.

Basically, the district court at that time, Judges Svaren and Skelton decided that it was unconstitutional. We waited on the hearing that I filed it on for the superior court, because a felony attorney in the office had a drug case where the stop was based upon that, and our thinking was, "Well, let's have the superior court declare it unconstitutional, because that would be binding on the district court." So we waited, and behind the scenes, the judges told me that since ... when that came in Skagit County, the superior court walked across the street, the judges, and they talked to the district court and they said they'll agree that, yeah, it's unconstitutional. And then I went to the supreme court. A direct review, and ultimately they found it unconstitutional. But it worked its way around the state, and I had a few phone calls here and there from people that wanted the brief, which was from the ...

So, the reason it was unconstitutional was because it referenced the Federal Motor Vehicle Act, and the rationale was that the Federal Motor Vehicle Carrier Act and the section that the seat-belt law references wasn't easy to find. So it was overly broad, and it was difficult to make notice of. And this may very well be a situation based on how broad this law is, that might find its way in similar circumstances.

Dillon
Jonathan Rands is our guest right now. Quick time out, just a couple of minutes left here on The Legal Docket on your Sunday morning here on KGMI Newstalk 790. If you do want to reach Jonathan at his practice in Fairhaven, 360 306 8136, the contact number. And I'll have those numbers again for you here in a couple of minutes when we come back. Also, the website is jrandslaw.com. Stay with us here on KGMI.

Dillon
We just have a minute or two left here on The Legal Docket. Jonathan Rands in-studio with us this morning. What do you think ultimately is going to happen with all this new distracted driving stuff?

Jonathan
Well, any time a law changes, anytime something new happens, you always get a bunch of people that try to look at it in terms of thinking, "Is this legal?" That's exactly what we did we the seatbelt law. I expect no less in this particular case. Who it happens to be, I'm not quite sure. Maybe it's me again, but I don't get a lot of these citations. But if I do get a DUI case that starts off trying to enforce this statute, you'll be darn right that I'm going to start looking at whether it's appropriately ... not necessarily appropriately passed, but appropriately enforced or whether it's void for vagueness or some other theory because of all the problems that we were just talking about theoretically.

Dillon
Jonathan Rands, again, has been our guest this hour. Local DUI defense attorney based in Fairhaven, right there at the corner of Harris and ... No, not Harris. That's a block over. Old Fairhaven Parkway and 12th Street. I'll get this right. 360 306 8136. 360 306 8136, and his website where you should check out that new blog that Jonathan posted on MIPs and how to deal with some of that stuff, especially with family issues, et cetera, pertinent for this time of year, that's at jrandslaw.com. Jonathan Rands, his last name is spelt R-a-n-d-s. So just the letter J, R-a-n-d-s, and the law, l-a-w. Jrandslaw.com. Check that out. I strongly encourage you to go there. And if you weren't quick enough to jot his number down, of course all his contact info is there as well. Jonathan, thanks for your time.

Jonathan
Thanks for having me.


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