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  1. #1
    Join Date
    Oct 2008
    Posts
    276

    Default Unlawful Fishing Charge

    last week i went out to dig some butter clams and as i was returning to my car, i was checked by a game warden....I have been charged for rcw 77.15.370 (1st degree gross misdemeanor) i went to the court yesterday to pick up the officers statement and the filed criminial citation and there was also an ammendment.

    The prosecutor ammended the charge to rcw 77.15.370 a MISDEMEANOR.

    I want get some insight here, regarding this issue.....

    I understand that the prosecution can ammend the charge, and TRUST me, i am okay with this!!! its a lesser penalty.

    However, i need to avoid talking to the prosecutor as much as possible because the officers statement allegedly supports a 1st degree charge. And i dont want it to be ammended back to the original .370

    I am planning on entering a plea of not guilty and waiving my pretrial hearing with the prosecutor...then asking the court for a bench trial.....

    At the bench trial, i will ask the judge to surpress the officers statement.....reason being, is that there is no case # on the respective statement, it is not incorporated by reference and most importantly, on the upper portion of the statement it reads "DATE THIS STATEMENT WAS CREATED 07/12/2010 " however near the bottom where the officer makes his affirmation statement he writes

    I certify under the penalty of perjury, under the laws of the state of washington, that the forgoing is true and correct to the best of my knowledge"
    He signs, it, writes his badge # denotes where it was signed and dates it 07/11/2010.....so he signed it a day before the document was created...
    plus the verbage that he has added "to the best of my knowledge" kind of defeats the purpose of rcw 9a.72.085....

    so to the fellows on our great website....your insight por favor....

    I have traffic matters pretty much figured out, but this is the 1st time i have ever been in a pickle like this!

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Unlawful Fishing Charge

    I suspect you're reading too much into the classification of the charge as a "misdemeanor". A first degree gross misdemeanor is a type of misdemeanor.
    Quote Quoting RCW 77.15.370. Unlawful recreational fishing in the first degree — Penalty.
    (1) A person is guilty of unlawful recreational fishing in the first degree if:
    (a) The person takes, possesses, or retains two times or more than the bag limit or possession limit of fish or shellfish allowed by any rule of the director or commission setting the amount of food fish, game fish, or shellfish that can be taken, possessed, or retained for noncommercial use;

    (b) The person fishes in a fishway;

    (c) The person shoots, gaffs, snags, snares, spears, dipnets, or stones fish or shellfish in state waters, or possesses fish or shellfish taken by such means, unless such means are authorized by express rule of the commission or director;

    (d) The person fishes for or possesses a fish listed as threatened or endangered in 50 C.F.R. Sec. 17.11 (2002), unless fishing for or possession of such fish is specifically allowed under federal or state law; or

    (e) The person possesses a sturgeon measuring in excess of the maximum size limit as established by rules adopted by the department.
    (2) Unlawful recreational fishing in the first degree is a gross misdemeanor.
    I would not expect a minor clerical error in the date to amount to anything in court.

  3. #3
    Join Date
    Feb 2010
    Posts
    1,383

    Default Re: Unlawful Fishing Charge

    So I just finished talking to a mentor of mine, a personal injury attorney. He says that you will most likely have luck in getting the statement suppressed because "criminal courts in Washington generally have really strict rules and guidelines, and that does not fit in to the guidelines that they set."

    I side with him on this, too, a minor clerical error may prejudice substantial rights of you, the defendant. How did the officer know to write it a day ahead of time?

    Good luck.

    Brendan

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