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One way to keep public defender costs down: Decriminalize unlicensed driving

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Longview's Assistant City/Prosecuting Attorney Heidi Thompson works on reviewing a backlog of cases.

Longview’s public defense costs have more than doubled in the past year — from $260,000 to about $600,000 — to meet a state Supreme Court mandate that blocks public defenders from taking more than 400 cases per year.

“We’re not the only city having this problem,” City Councilman Ken Botero said at a meeting this month. “When the state mandates we have to do this, it’s an unfunded mandate.”

But instead of paying for more public defenders, couldn’t there simply be fewer criminals who need them?

If it sounds too good to be that easy, that’s because it is.

By the end of the year, more than 400 cases involving third-degree driving while license suspended (DWLS) will have been assigned to Longview’s public defenders.

That means one of the city’s five public defenders is virtually working full-time on DWLS charges. So Longview is spending at least $135,000 for the indigent defense of unlicensed drivers.

One way to fix that: decriminalizing that misdemeanor offense to an infraction.

“We wouldn’t be turning a blind eye to that behavior; we would cite them for driving without a valid license,” said Longview City Attorney Jim McNamara. “That wouldn’t threaten them with jail time, nor would they require a public defender.”

Such a move might also save Longview the cost of one or more public defenders.

That decision is not in the city’s hands, however. The Legislature would have to change the law to change the crime.

There was some movement in Olympia to do just that this year, but in the long, budget-obsessed session there was no room for such innovations.

“Talking with stakeholders and a key legislator, it didn’t appear to be politically feasible in the 2015 session,” Association of Washington Cities spokesperson Candice Bock said. “We remain open to discussing proposals in the future. A number of cities are concerned about the cost and the impacts of prosecuting DWLS.”

Not just cities, but counties, too. Cowlitz County and Kelso have also had to increase their public defense budgets to meet the new state standards, and DWLS is certainly affecting their caseloads.

Through the end of June, there have been 552 DWLS cases filed in Cowlitz County District Court, 242 of them from Longview.

“When I used to be in private practice, I’d see on the docket page after page of driving with license suspended cases,” McNamara said.

Some cities have made the decision to simply not charge the crime at all, as is the case with Seattle, said Katherine Gulmert, one of the two partners at Longview Municipal Defense, the public defense firm the city contracts with.

There is a possibility Longview could drop charges occasionally, but it seems unlikely to become policy.

“There was some talk about, well you could charge no valid operator’s license on person, but that’s technically not the offense,” McNamara said. “It’s suspended, not ‘not on their person.’ “

The police are on board with diminishing the nature of the offense, but not doing away with it.

“I would not be opposed to this (decriminalizing DWLS) and it would bring the numbers way down for public defense,” Police Chief Jim Duscha said. “I am also opposed to just ignoring DWLS. The Department of Licensing has suspended their driving privilege for a reason and it should be enforced.”

Other cities, like Spokane and Yakima, have put in diversion and re-licensing programs to work with the state laws without ignoring them.

Yakima’s broad case reduction “has yielded dramatic results,” said Sophia Byrd McSherry, deputy director of the state’s Office of Public Defense.

In Spokane, a DWLS re-licensing program has also proven popular, she said.

Longview has a diversion program of its own, which allows those facing DWLS and other nonviolent charges to avoid prosecution.

And the county has a license reinstatement program for DWLS that avoids the need for a public defender and gets drivers in the clear again.

Those would be more successful, McNamara said, if more people followed through and used those opportunities.

“We’d like to get higher participation,” he said of the diversion program. “The problem isn’t people not being referred (by police), it’s that they aren’t following up.”

For now, the police, prosecutors and public defenders will keep following the laws as they’re written and paying for enough public defenders.

“We want to do justice, the bottom line of the Supreme Court rule is to make sure that indigent defendants get adequate representation,” Gulmert said.

Contact Daily News reporter Brooks Johnson at 360-577-7828 or


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