DUI Washington Blog

Affidavits of Prejudice — A DUI Attorney Tool

Affidavits of Prejudice have been a tool used by Washington DUI attorneys to avoid a judge who the attorney or client does not believe can be impartial in the case.  This “affidavit” allows either the attorney or the client to remove one judge from the case.  It can only be used once in any criminal proceeding.  This means if you remove one judge, you can’t later remove a second judge. The Washington State Legislature passed legislation that went into effect on July 1, 2008. Known as second substitute House Bill (SSHB) 2557, this legislation is intended to further clarify the rules of affidavits of prejudice.

How SSHB 2557 Affected Washington DUI Court Proceedings

When this law went into effect, it changed the landscape for affidavits of prejudice in some courts in the Seattle, Washington area, because it established four legal issues that are not considered discretionary. These concerns for DUI attorneys are 1) the arrangement of the calendar; 2) The setting of an action, motion, or proceeding for hearing or trial; 3) the arraignment of the accused; and 4) the setting of bail or conditions of release. This means that you may still remove a judge even if they have  handled your arraignment, set your pre-trial conditions, set your trial dates or set the jury calendar.

Under the new law, if an affidavit of prejudice against a judge is filed in a timely manner, he/she is barred from setting bail, handling motions, overseeing a trial, determining sentencing or performing reviews.

However, we are uncertain if all judges are going to agree with this reading of the statute and we are fearful that some judges, once affidavited, will continue to make bail decisions on the case.. A timely filing of affidavit of prejudice is supposed to deny a judge any authority to act in a matter. We believe that once a judge has been affidavited that judge can no longer make any decision on the case.