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When 1 + 1 Does Not Equal Two: Know How Courts Should Calculate Your Offender Score

Posted by Kevin Trombold DUI Defense Attorney | Nov 29, 2014 | 0 Comments


A fact pattern, or issue spotter, is a set of facts, sometimes told as a mind-blowing story, given to law school students during a law school exam. They are often pages long and quite hilarious. Given the right subject, a fact pattern may have four or five (or more) actors who each do four or five (or more) different things that test both the limits of reasonable human behavior and the law itself.

At the end of the story, the professor will simply ask the students to evaluate how the law may apply to the given facts. At the end of the story, the student will give a deep sigh and wish they had spent more time studying and had more time to explain, in legal terms, all the hilarity they had just read.

An unpublished opinion recently released by the Washington Court of Appeals, 1st Division, reminded me of these rites of passage.

It is a few weeks before Christmas 2012, somewhere around Seattle in King County. The police receive a call reporting a suspicious occupied car that was running. An Officer responds to the scene and sees two people attempting to hide in the car. After realizing that he has been spotted, the driver reverses the car over a curb and into a large retaining wall. He then changes course, and drives forward, narrowly missing the patrol car. He then reverses back into the retaining wall and scrapes against it as he drives 200 feet in reverse. The car then hits the curved part of the retaining wall, causing it to ricochet forward and strike the patrol car. Before he could create some distance between himself and the wall, the driver was detained. The driver was impaired by drug use.  His passenger was injured in the maelstrom. He was convicted of reckless driving and driving under the influence.

At a later trial for a separate charge stemming from an unrelated incident, these facts come into play again. When determining how a defendant should be sentenced, Washington courts look to a defendant's offender score. This score is determined by looking at the defendant's prior criminal conduct. The defendant's score is an aggregation of the scores from the defendant's prior convictions. The trial judge counted the driver's convictions for reckless driving and DUI from the 2012 incident separately.

Aside from getting to tell a somewhat funny story, this blog post intends to inform you that when you have previous convictions based upon a single action that required the same intent, involve the same victim, and occurred at the same time and place, the counts should not be counted separately.

In this case, the state argued that the reckless driving and driving under the influence charges require different levels of intent. A DUI requires no intent; it is a strict liability crime. Reckless driving requires a willful and wanton disregard for the safety of property of another.

The Court of Appeals was not persuaded. The driver's objective intent in his actions was to escape the responding officer. The victims, the patrol car and injured passenger, were the same. They clearly occurred at the same time and place. Thus, the trial court erred. 1+1=1.

If you have multiple previous convictions stemming from a singular incident and face a DUI or other charge, know that, at the very least, you have an argument that they should not stack. Ensure your attorney understands this too. Attorneys may be bad at math, but they generally know that 1+1=2.

About the Author

Kevin Trombold DUI Defense Attorney

Highly rated by former clients, who praise his warm, knowledgeable courtside manner and his fierce determination to reduce or eliminate charges. An accomplished speaker, author, and leader in DUI defense statewide Kevin is well respected by judges, prosecutors, and other attorneys across the State of Washington for his expertise, integrity, and knowledge in the complicated forensic science area of impaired driving allegations.


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