Friday, December 16, 2011

How a DUI arrest can affect a commercial drivers license

A DUI arrest can have many consequences, both direct and collateral.  Everyone knows that a DUI carries jail, fines, alcohol treatment, probation, ignition interlock device requirements, and personal license suspensions.  But if you're a holder of a commercial drivers license (CDL) you face a loss of that license in addition to your personal license.

What I would like to discuss is what happens to a CDL after a DUI arrest in a personal non-comercial vehicle.  From previous blog posts anytime a person is arrested for a DUI they most likely will face 2 legal actions.  One is with the Washington Department of Licensing, and the other is from the Judicial system.  Depending on what happens from either of those legal actions, a CDL holder may be affected.

So lets take a closer look at what happens at the DOL hearing.  First if you win the DOL hearing then there is no CDL disqualification.  If you lose the DOL hearing and its your first violation under RCW 46.25.090(1) then you face a 1 year license suspension.  If you lose the DOL hearing and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.

Now lets look at what can happen in the criminal case.  In a criminal case for DUI charge a person basically has 5 different things that can happen to them.

First if you beat the DUI charge in the criminal case then no CDL disqualification.

Secondly if you get convicted of the DUI and its your first violation under RCW 46.25.090(1) then its a 1 year CDL disqualification.  If you get convicted and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.

Thirdly if you get the DUI charge reduced to reckless driving and you have a prior serious traffic violation within 3 year you will face a 60 day CDL disqualification.  If you have two or more prior serious traffic violations within 3 years then its a 120 CDL disqualification.

Fourthly if you get the DUI reduced to negligent driving then there is no CDL disqualification but it will count as a prior serious traffic offense.

And lastly if you're considering a deferred prosecution from my reading of the statute it is unclear who this will be treated by DOL.  It is clear that a deferred prosecution will not stay the disqualification of the CDL in the DOL hearing.

If you have been arrested for a DUI, and you carry a CDL its important to speak with a DUI attorney that not only understands, but can help you navigate the waters of the CDL and disqualification.  Remember many attorneys out there claim to be DUI attorneys, but reality they are pretenders.  Contact my office today to schedule a free 60 minute consultation that is completely confidential to discuss your options and rights when facing a DUI arrest.

Leyba Defense PLLC | Seattle DUI Firm

Tuesday, December 13, 2011

Boating under the influence (BUI) in Washington State

Lately I've had several people call me about representing them in BUI charges here in Washington State.  For those of you that dont know a BUI charge is nothing like a DUI charge, except for fact it involved alcohol.  For starters a BUI charge is only a misdemeanor, and it doesnt carry the mandatory penalties that a Washington State DUI does (jail, fine, license suspension).

What I wanted to talk about today is the coast guard hearing that sometimes accompanies the BUI charge.  Similarly in a DUI charge there is a civil hearing to determine civil penalties (a license suspension, a BUI arrest could result in a civil hearing to determine the civil penalties.

So after a person gets arrested for a BUI charge, that information can get forwarded to Coast Guard.  A coast guard civil penalty hearing officer will review the report alleging that you, the operator of a vessel could be liable for a civil penalty for violation of Federal law.  Usually its several months up to a year after the BUI arrest before you would hear anything.

The role of the officer is read the case file, determine if there was a violation, and then decide the civil penalty.  In a typical BUI case, the max penalty is up to $7000.  If the officer determines there was a violation that will send you notice of this along with the findings, a report, and their recommendation for the civil penalty.

At this point the party typically has three options.  First then can pay the penalty which will result in the case being closed.  Secondly then can respond with written evidence, typically a statement, or witness declarations.  Lastly they can request an in person hearing, where they would appear with an attorney and argue the arrest was not a violation and therefore no civil penalty should be imposed.  Conceivably there is a fourth option where a person can ignore the letter and penalty request.  If that occurred the case would be sent to collections.

So what takes place at this in person hearing should the party wish to challenge the allegations.  The hearings themselves are pretty informal.  Federal law applies, and the hearing is administrative so the rules of evidence and other statutory objections are inapplicable.  The hearing officer would hear testimony, consider any evidence, and arguments presented.  I guess its kind of a like a trial, without the formal rules.

After the hearing if the Coast Guard hearing officer rules against the party then they must pay the civil penalty.  If they rule in favor, then the case is closed.  There is also an appeal process, should that occur, the Coast Guard officer will send in the complete record to the Commander, and the appeal will be decided by that person.

I realize its not summertime, and SeaFair weekend, but if you have been charged with a BUI or if you were arrested and your charges are now being filed, please contact my office immediately to set up a free consultation.  And also dont forgot about the possibility of the civil coast guard hearing when deciding on a resolution in the criminal BUI case.

Leyba Defense PLLC | DUI and BUI Defense

Wednesday, November 16, 2011

News article on DUI field sobriety tests

I recently came across this article discussing whether or not a person should do the field sobriety tests if they are being investigated for a DUI.  The news article is from Atlanta, but the gist of the article applies the same as here in Washington State.

Dr. Spurgoen Cole a retired physician is quoted in the article as saying, "[the field sobriety test] is designed to fail.  Its designed to fail.  There are no norms, there is no average score.  We have no idea what an average person can do on the one leg with the heel to toe."  And lastly he recommends that nobody takes them.

Hopefully most people know by know that if you're being investigated for a DUI, its probably best to not do the field sobriety tests (the tests in the field, always ask to speak with an attorney prior to the breath test at the station).  Although they may seem easy, when you take into account the circumstances, the situation, the environment, the lack of any real scoring system, and the fact your liberty is at stake.  These are not ideal test conditions, and the smallest mistake can mean the difference between jail and going home.  Not to mention my personal opinion is that these tests are nothing but junk science and I do believe they are designed for a person to fail.  As as attorney I feel its always best to limit the amount of evidence law enforcement can gather against you.  You have the right to remain silent and the right to be free from self incrimination.  This includes the right to not answer questions, but also the right to decline these field sobriety tests.

If you have been arrested for a DUI, and you agreed to take the tests.  All is not lost.  There are still plenty of ways to challenge the admissibility of these tests, albeit it makes the DUI case more difficult.  Feel free to call my office for a free 60 minute consultation if you have been recently arrested for a DUI.

Leyba Defense PLLC | DUI Defense

Saturday, November 12, 2011

New DUI related case on pretextual stops

So whats a pretextual stop?  To put it simply its when a police officer stops a vehicle for some kind of minor infraction with the sole purpose of the stop not being the actual infraction committed, but to investigate possible criminal activity.  You see lots of stops like this in DUI cases, especially here in Seattle, Washington, where we have lots of State patrol troopers traveling up and down I5 at night looking for people to pull over and investigate for DUI.

Recently the Court of Appeals Division III in Washington ruled on a case involving a pretextual stop.  In this case a patrol officer followed Gilbert Chacon Arreola's blue Chevy for over a half mile because it fit the description of a car reportedly driven by a drunk driver.  While watching for signs of impaired driving, the officer noticed an illegally modified muffler, and decided to initiate a stop based on that and nothing more.  In other words the sole basis of the stop being to investigate for a possible DUI.

The Court of Appeals held this was an unconstitutional stop because the Officer's primary reason for the stop was not to cite the alleged infraction for a modified muffler, but because the officer admitted his primary purpose was to investigate for DUI.  And despite following the vehicle for approximately 45 seconds, no observations indicative of impairment was observed, and therefore this stop was without authority of law.

I meet with many people who tell me the same thing.  They were driving home on I5 or I90 or 520 and they got pulled over for not signaling, for following a car too closely, or some other minor infraction.  When they get contacted by the officer, the officer doesn't talk to them about the reason for the stop and explain why they are being pulled over, but immediately asks if they have been drinking and if they have then they begin a DUI investigation.  In my opinion this is unlawful and these kinds of unlawful seizures should be challenged.

If you have recently been contacted by law enforcement and you were arrested after allegedly committing a minor traffic infraction contact my officer immediately to ensure your constitutional rights are protected.

Leyba Defense PLLC | Seattle DUI Defense

Thursday, October 27, 2011

Leyba Defense PLLC updates and news

Its been a busy few months here at the firm so I havent had a chance to write any blog postings.  So here is what has been going on.

Recently I was asked to give a CLE presentation at the Washington Young Lawyers Division Trial Advocacy Program.  The topic was "Trial Notebook and Organization."  I also spoke last year at the Trial Advocacy Program, so it was quite an honor to get asked to speak again.  To get asked to speak to young attorneys about trial preparation and the skills they need to be successful is very flattering for the firm.  There were lots of great trial attorneys giving different presentations, and to be among them speaks volumes about my trial practice and reputation.  Overall I thought the presentation went well.  I outlined how I prepare for a trial, from the time a client sits down at that first initial consultation to my closing argument.  A lot goes into creating trial notebooks, and Im always surprised when I dont see other DUI attorneys using them.  Its kind of like hitting a tee shot on a par 3 in golf.  Its an advantage to tee your golf ball up, why not do it.  So the same goes for creating a trial notebook, it gives you an advantage and a leg up in your trial prep, why not do it.

Were not all about glamour and name recognition here at the firm, but we do get our hands dirty so to speak with our DUI defense.  Here are a few of our most recent successes

October 2011 - DOL hearing dismissed
Client was arrested for DUI in downtown Seattle by a so called Expert DUI officer.  Officer noted strong odor of alcohol, flushed face, watery and bloodshot eyes, and client admitting to having one drink.  Client allegedly failed 2 of 3 field sobriety tests, and declined to provide a breath sample in the field and at the station.  DOL dismissed after a motion to suppress evidence was argued by Matthew Leyba

October 2011 - DOL hearing dismissed
Client was arrested for DUI in Edmonds, WA.  Client was pulled over for minor traffic infractions.  Officer noted strong odor of alcohol, watery bloodshot eyes, and poor coordination.  Client blew a .139/.135 breath test.  DOL dismissed after a motions were argued by Matthew Leyba.

And lastly within the last month we were able to resolve 2 separate DUI cases by way of a deferred sentence for 2 separate clients.  Meaning at the end of 1 year period, the charges will be dismissed, and thus keeping the clients records clear.  Although they had to jump through a few hoops during the 1 year (i.e., community service, and staying out of trouble) this is still an excellent resolution and allows the client to not only avoid a DUI conviction, but a conviction all together.  Which anytime that can be accomplished whether through trial, or negotiation is a success in my book.

Leyba Defense PLLC

Leyba Defense PLLC

When can a stop for an infraction move into an investigation for a DUI

Generally most people that get arrested for a DUI initially get pulled over for a minor traffic infraction.  In order for a police officer to have a sufficient basis to ask the driver to exit the vehicle and begin an investigation for DUI they have to have a reason for doing so.  And no, simply admitting to consuming alcohol, and having an odor is not enough.

A warrantless search of constitutionally protected areas is presumed unreasonable absent proof that one of the few well-established exceptions to the warrant requirement applies State v. Ladson, 138 Wash.2d at 349. These exceptions fall into several categories, including consent, exigent circumstances, and searches incident to valid arrest, inventory searches, plain view, and Terry investigative stops. Ladson, 138 Wn.2d at 349. The State bears the burden of proving a warrantless search falls within one of the exceptions when a traffic stop becomes a DUI investigation.

In the absence of probable cause to arrest, police may conduct a brief investigative stop known as a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To satisfy the requirements of the Fourth Amendment and article I, section 7 of the Washington constitution, a Terry stop must be based on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Mendez, 137 Wn.2d at 223 (quoting Terry, 392 U.S. at 21). In evaluating investigative stops, the courts must determine: (1) was the initial interference with the suspect’s freedom of movement justified at its inception? (2) Was it reasonably related in scope to the circumstances, which justified the interference in the first place? Terry, at 392 U.S. at 19-20.

Without sufficient justification, police officers may not use routine traffic stops as a basis for generalized, investigative detentions or searches. State v. Henry, 80 Wn. App. 544, 553, 910 P.2d 1290 (1995). The reasonableness of an investigative detention is judged by the purpose of the investigative detention, the amount of physical intrusion, and the length of the investigative detention. State v. Williams, 102 Wn.2d 733, 739-40, 689 P.2d 1065 (1984). If a seizure is unlawful, the result of a consequent search is inadmissible. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). When a police officer uses his/her patrol vehicle’s emergency lights to detain a motor vehicle, a seizure has occurred. State v. DeArman, 54 Wn. App. 621, 624, 774 P.2d 1247 (1989).

Investigatory stop must not exceed duration and intensity necessary to confirm or dispel officer's suspicions; if the stop exceeds these limitations, it can be justified only by showing of probable cause. State v. Mitchell, 80 Wn. App. 143, 906 P.2d 1013 (1995). Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction. State v. Lemus, 103 Wn. App. 94 (2000).

A stop for a traffic infraction can be extended only when an officer has articulable facts from which the officer could reasonably suspect criminal activity and the continued detention must be limited to the length of time needed to investigate the increasingly suspicious circumstances. Wa. Const, art. 1, § 7.; State v. Lemus, 103 Wn. App. 94 (2000) (Emphasis added). And the continued detention must be limited to the length of time needed to investigate the increasingly suspicious circumstances. State v. Gonzales, 46 Wn. App. 388, 394, 731 P.2d 1101 (1986). Articulable suspicion is a substantial possibility that criminal conduct has occurred or is about to occur. State v. Kennedy, 107 Wn.2d 1 (1986).

For example, in State v. Tijerina, the Court of Appeals in Division 3 held that the officer did not have any “reasonable suspicion” of criminal activity sufficient to support his continued detention of the motorist after he had decided not to issue a citation. 61 Wash.App. 626 (1991). In Tijerina, the defendant and passenger were pulled over after an officer observed their vehicle cross over the fog line. Id. When the defendant opened the glove box to obtain his registration, the officer noticed several small bars of soap of the kind commonly provided at motels. Id. After checking the defendant’s driver’s license and registration, the officer decided not to issue a citation. Id. The officer then asked the defendant if he had any drugs and asked to search the trunk of the car. Id. The officer opened the trunk and discovered cocaine wrapped in a newspaper next to a case of empty beer bottles. Id.

Generally when its comes to DUI arrests, Seattle police officers need to make several observations of the driver in order to begin a DUI investigation. In my opinion the officer needs to notice a slurred speech, an odor of alcohol, bloodshot watery eyes, difficulty answering or understanding questions, and finger dexterity issues or coordination problems. If any of those observations are absent then an officer shouldn't be able to ask a driver to exit the vehicle to conduct an investigation for DUI.

If you have been contacted by a police officer and you don't believe the officer had a sufficient basis to ask you to exit your vehicle and conduct a DUI investigation, contact my office immediately to set up a free 60 minute consultation.  

Friday, September 2, 2011

Judge refuses to dismiss charge in Seattle DUI arrest flap

This a follow up on previous posts regarding this DUI issue with the Seattle Police Department DUI Squad.  "On Thursday a Judge declined to dismiss a DUI case or suppress the DUI officer's testimony testimony despite the officer's admission that he violated Seattle police policy when he falsely stated his sergeant had screen a Seattle DUI arrest."

"In short," said Seattle Municipal Judge Steve Rosen, the legal wrangling is "much ado about nothing."  Lawyers for [the defendant] asked Rosen to dismiss the case or suppress the testimony because of the arresting officer's action.  The City of Seattle opposed the request.

To continue reading this article from the Seattle Times, click here.

Leyba Defense PLLC

Monday, August 29, 2011

Rubber stamped Seattle DUI arrests prompt legal challenge

"Seattle Police have found that DUI arrests were routinely rubber stamped or falsely certified without approval by a Seattle DUI supervisor, prompting one defendant to ask a Judge to dismiss his case or suppress the arresting officer's DUI testimony.

The Department launched an internal investigation in March after an audit revealed the mishandling of dozens of DUI cases.  A sergeant who allegedly permitted the improper DUI screenings remains under investigation."

To continue reading the article by the Seattle Times regarding this issue.  Click here.

Leyba Defense PLLC | Seattle DUI Firm

Wednesday, August 24, 2011

Website shows DUI patrols in King, Snohomish, and Pierce counties

The Washington Traffic Safety Commission has rolled out a website that allows residents of King, Snohomish, and Pierce counties to see when and where law enforcement will be conducting DUI patrols in their communities.

Only three counties are activated so far in a special two-year project to reduce DUI deaths, but the commission hopes that information for every county in the state will eventually be posted on the website

To continue reading the article, click here

Leyba Defense PLLC | Seattle DUI Defense

Thursday, August 18, 2011

The use of a public disclosure request in defending a DUI charge

One of the most important tools every Seattle DUI Lawyer should have at their disposal is the "public disclosure request."  In a DUI case it is important to gather as much evidence as possible in order to prepare a proper and thorough defense.  Typically most Prosecutors will hand over a DUI police report, the breath test results, and maybe a CAD report (timeline of events from Police officer).  However in many instances there is much more evidence that can be gathered, and the experienced DUI Attorney will be able to find it through different methods of investigation, the use of subpoena's, and of course the public disclosure request.

So what is a public disclosure request.  RCW 42.56 titled the Public Record Disclosure Act states a public record is, "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristic."  

A writing is described as any "means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated"

So what does this mean?  Basically in any DUI case a person can request certain "writings" under the Public Disclosure Act, without the need for a subpoena, and it must be produced by the particular agency that has it.  

In every DUI case, Leyba Defense PLLC routinely asks for certain items under this act.  These include audio/video recordings, additional police reports made by the arresting officer, additional documents from the State Toxicologist concerning our clients breath/blood test results, all booking room photos and/or recordings.  As I stated before these things generally are not produced by the Prosecution, and unless they are requested, nobody will ever know about them.  

Probably the most important item to obtain under this act is any and all audio/video recordings.  In this day and age most law enforcement agencies have in car police video cameras, and video cameras in the breath testing room.  Although police officers generally write a report on why an individual was arrested for a DUI, sometimes these reports are biased, and in a few cases, just flat out incorrect.  An audio/video recording of the incident is gold in the sense that it will show exactly why a person was contacted by law enforcement, how they were acting during the investigation, and whether the arresting officer properly administered the field sobriety tests and breath tests.  

Here are two recent examples of how we used the Public Disclosure Act to our clients benefit.  In one DUI case recently we made a request for all audio/video recordings of a client while they were being processed at the police precinct.  We received a video of the police officer administering the breath test to our client.  Now even though in the police report the arresting officer stated "the breath test was administered properly and all protocols were followed."  This video showed the test was not administered correctly and therefore it was not admissible.  As a result of this investigation an excellent plea deal was worked out, and a DUI conviction was avoided.

The other example occurred when we requested the last 25 DUI arrest reports from a particular officer.  When we received these reports it was clear the arresting officer was just copying and pasting the same observations, and performance on the field sobriety test for every person they arrested.  This officer was not properly documenting every cases individually, but just writing the same thing in every report.  As a result of this we were able to impeach the officers credibility during a pretrial motion hearing, and shortly thereafter a dismissal and reduction in charges was offered by the Prosecutor.  

Obviously things like this dont happen in every DUI case, but if all investigation is not exhausted completely a proper and complete defense is not being put forward.  And in the end, the client will suffer not the attorney.  At Leyba Defense PLLC we will explore and exhaust all avenues for investigation, and will always put on the best defense possible.  If you have been arrested for a DUI in Seattle or by any other law enforcement agency in Western Washington, please contact us immediately to set up a free 60 minute consultation that is completely confidential.  

Leyba Defense PLLC | Seattle DUI Defense

Thursday, August 4, 2011

Reminder on what to do during DUI arrest investigation

With Sea Fair weekend around the corner there are going to be many DUI patrols around the Seattle area, and King County.  The best advice is not to have a drop of alcohol prior to driving.  However if you have been drinking and you get pulled over by law enforcement, its important to remember a few things when investigated for possible DUI.  Also if you have had a drop of alcohol and you get pulled over, chances are you're going to get arrested for a DUI regardless of what the police officer tells you.  So do yourself and your DUI Attorney a favor and follow these simple rules

1.  Be polite with law enforcement
2.  Provide your drivers license, proof of car insurance, and vehicle registration
3.  Respectfully decline all field sobriety tests
4.  Respectfully decline the portable breath test
5.  Ask to speak with a DUI Attorney immediately after being placed under arrest

Please keep in mind the best practice is to have a designated driver.  However if you do get contacted and you have been drinking, just follow the above mentioned rules and you're constitutional rights will be protected.

Leyba Defense PLLC | Seattle DUI Defense

Monday, August 1, 2011

Impaired boaters and drivers targeted for SeaFair weekend

Washington State Law Enforcement officers will be taking to the water and roads during SeaFair weekend to patrol for possible impaired boaters (Boating under the influence) and drivers (Driving under the influence).  Read the article here.  

Last year during SeaFair weekend 59 boaters were arrested for BUI and 54 drivers were arrested for DUI in King County.

Remember to be safe, and if you have been drinking and are contacted by law enforcement exercise your right to remain silent and ask to speak with a DUI attorney immediately regarding your possible BUI or DUI arrest in Seattle or King County.

Leyba Defense PLLC | Seattle DUI Defense.

Sunday, July 17, 2011

New law requires 12 hour impoundment after DUI arrest in Washington

On July 22, 2011 a new law goes into effect that will require all vehicles be impounded after the driver is arrested for DUI.  The State Legislature has approved this bill and it has been called Hailey's Law named after a Whatcom County woman who was injured in a head on collision with a drunk driver who had been released two hours prior and got back into their car.  The policy behind this legislation is to reduce these kinds of incidents in the future.

Read the article here.

Leyba Defense PLLC

Thursday, June 16, 2011

Sleazy Attorneys and their "arraignment letters"

A couple of days ago a client called me really upset.  This particular client has a very good job, she is well educated, has a nice career with Microsoft, and she has never been in trouble before.  However she has been charged with a DUI in King County that can completely derail everything she has worked so hard for.  She hasn't told anyone of this situation except her fiance and of course me, her attorney.  She is incredibly embarrassed by this situation, she is nervous and worried about what will happen if her family, friends, and employer find out about it.  She has never been in trouble before, not even gotten a speeding ticket.  Its a really difficult situation for her, as it is for anyone who has been charged with a DUI in King County.  

So she called me on my personal cell phone and she sounded really upset.  I was worried something was wrong, maybe something had happened to her or her family.  She then told me that she was out of town for a week or so, and between that time and this phone call she had gotten approximately 20 letters and/or brochures from other attorneys claiming to be a DUI attorney, and offering their legal services (since that phone call she has been getting roughly 2-3 letters a day)

Now this is nothing a new, since I became a lawyer, I have known of 1 law firm that did this.  And this particular firm doesn't have a good reputation in the community, and I personally think the owner is not a good guy and gives attorneys a bad name.  But thats another topic.  So I was quite surprised when she said she had gotten over 20 letters in the course of a week from 20 different law firms.

After I was able to tell her to ignore these letters and that I consider these attorneys to be the ambulance chasers of criminal defense.  In other words there work is so bad, that former clients never refer them business, and they have to dupe innocent people by sending these arraignment letters and solicit their crappy law firm.  Much like a personal injury attorney follows an ambulance and then asked the injured party if they slipped and fell.  That is what these guys do.  It kind of started to irritate me these guys get away with this.

The Rules of Professional Conduct govern a lawyers behavior and sets certain rules we are supposed to follow.  One thing I never understood is how these arraignment letter attorneys are not in violation of RPC 7.3.  RPC 7.3 states a lawyer shall not, directly, or through a third person, by in person, live telephone, or real time electronic contact solidity professional employment from a prospective client when a significant motive for the lawyers doing so is the lawyers pecuniary gain.

Im not quite how these guys get around this rule.  I guess the State Bar Association feels the wording in these letters is not soliciting business, but some kind of a heads up a criminal charge has been filed, and oh by the way I happen to be a DUI attorney type thing.  I don't know, and I used to not really care.  But when they are start sending letters to my clients, people who have trusted me to help them in their time of need.  It gets me a little upset that they have to deal with these jerkoffs.

Being charged with a criminal offense is embarrassing enough.  Coming home from a hard day of work and finding 2-3 letters a day reminding you of this incident and soliciting your business is ridiculous.  Im sorry there are people out there who do this. Im sorry there are attorneys out there claiming to be DUI lawyers who don't care about the privacy rights of my clients and the many other people facing a DUI charge.  And Im sorry these attorneys only view these people as dollar signs, and have no real interest in legitimately caring for them and fighting on their behalf.

Open letter to potential clients and other DUI Attorneys

A couple of days ago a client called me really upset.  This particular client has a very good job, she is well educated, has a nice career with Microsoft, she is a very nice woman.  And unfortunately for her she has been charged with a DUI in King County that can completely derail everything she has worked so hard for.  She hasn't told anyone of this situation except her fiance and of course me, her attorney.  She is incredibly embarrassed by this situation, she is nervous and worried about what will happen if her family, friends, and employer find out about it.  She has never been in trouble before, not even gotten a speeding ticket.  Its a really difficult situation for her, as it is for anyone who has been charged with a DUI in King County.  

So she called me on my personal cell phone and she sounded really upset.  I was worried something was wrong, maybe something had happened to her or her family.  She then told me that she was out of town for a week or so, and between that time and this phone call she had gotten approximately 20 letters and/or brochures from other attorneys claiming to be a DUI attorney, and offering their legal services.

Now this is nothing a new, since I became a lawyer, I have known of 1 law firm that does this.  And this particular firm doesn't have a good reputation in the community, and I personally think the owner is a douchebag and gives attorneys a bad name.  But thats another topic.  So I was quite surprised when she said she had gotten over 20 letters in the course of a week from 20 different law firms.  I guess there are a lot of law firms and attorneys who don't care if they are sleazy, and scumbags, and they cant get clients any other way because their work is so shitty.

After I was able to tell her to ignore these letters and that I consider these attorneys to be the ambulance chasers of criminal defense.  In other words there work is so bad, that former clients never refer them business, and they have to dupe innocent people by sending these arraignment letters and solicit their crappy law firm.  Much like a personal injury attorney follows an ambulance and then asked the injured party if they slipped and fell.  That is what these guys do.

The Rules of Professional Conduct govern a lawyers behavior and sets certain rules we are supposed to follow.  One thing I never understood is how these arraignment letter attorneys are not in violation of RPC 7.3.  RPC 7.3 states a lawyer shall not, directly, or through a third person, by in person, live telephone, or real time electronic contact solidity professional employment from a prospective client when a significant motive for the lawyers doing so is the lawyers pecuniary gain.

Im not quite how these guys get around this rule.  I guess the State Bar Association feels the wording in these letters is not soliciting business, but some kind of a heads up a criminal charge has been filed, and oh by the way I happen to be a DUI attorney type thing.  I don't know, and I used to not really care.  But when they are start sending letters to my clients, people who have trusted me to help them in their time of need.  It gets me a little upset that they have to deal with these jerkoffs.

Wednesday, June 1, 2011

Last three DUI case results

I typically don't like to post results of DUI cases when the DUI charge gets reduced to a lower offense.  I have noticed some other DUI attorneys do this, as if its a notable accomplishment.  And to be honest, it is good when a client can avoid a DUI conviction.  However negotiating with a Prosecutor is just part of our daily practice, and getting DUI charges reduced to lesser offenses is just a regular day at the office.  I save the posts for when a DUI gets dismissed, or a client gets found not guilty at trial.  Those are the types of results to write about, NOT getting a DUI lowered to a Neg 1.  Thats rookie

Anyway today Im going to break my rule and discuss the last three DUI case results I have had.  Not to brag about the end result, but to show its possible to get a DUI charge dismissed without litigating it at trial.  The last three DUI cases I have resolved have ended in deferred sentences.  What a deferred sentence is where a person will plead guilty but the Judge will not impose a sentence.  Then if the person stays out of trouble for a period of time, they come back before the Judge and take back their guilty plea, and the charge gets dismissed.

So what happened with my last three cases.  In 2 of the cases the DUI charge got reduced to Negligent Driving 1, in the other DUI case the DUI was dismissed completely and the charge was refiled as a Negligent Driving 1.  Which in and of itself is a good result.  However I was also successfully able to negotiate with the Prosecutor to recommend a deferred sentence.  Meaning in two of the cases the charge would be dismissed in 1 year, and in the other case the charge would be dismissed in 6 months.  This would allow the client the benefit of keeping their record clean, and avoid a criminal conviction which would could negatively affect their lives.

Remember there are lots of creative ways to avoid a criminal conviction, and having a DUI attorney that understands this goes a long way in making this possible.  If you have been charged with a DUI and you're looking for a DUI attorney, please contact my office immediately to set up a free 60 minute consultation.

Leyba Defense PLLC  

Friday, May 20, 2011

Washington State Keeps List of Where DUI Suspects Say They Drank

I've been meaning to write about this article since it came out a couple of weeks ago.  In case you haven't read it, Washington State Liquor Board, including City Police Departments and the Washington State Patrol have a database of where people had their last drink prior to a DUI arrest.  The purpose of this list I guess is to target these bars, because they are known to allegedly over serve intoxicated patrons and allow them to drive home.

From a public policy standpoint I can understand keeping tabs on bars that over serve patrons, and then allow the patron to drive home.  Even though Im a Seattle DUI Attorney, I still don't want to see people injured, or even killed as a result of a DUI crash.  After all Im still a compassionate human being with feels and emotions, despite what all the jokes say about Attorneys.

But what I don't agree with is if certain police agencies are just sitting outside targeting people who leave these bars.  First of all if police officers are wasting their time sitting outside a bar, just because 20 people who were arrested for a DUI last year said the last drink they had was there, then this is just a waste of time.  As a citizen of this State, I want my police department actively seeking out crime and doing something to stop it.  Sitting outside a bar for an entire night, just keeps them from doing their job.  To be honest it sounds like lazy police work, but thats just me.  The other issue I have is this is completely pretextual and unconstitutional.  A pretextual stop is where a police officer will randomly target someone, follow them until they commit a minor traffic infraction.  Then use that traffic infraction for the basis of an unconstitutional search and seizure.

I recently got a DUI case dismissed for this exact reason.  Basically what happened was a police officer was dispatched to a location of a wedding because it was serving alcohol.  No crimes were being reported, no DUI calls were made.  The officer got behind the first person exiting the wedding.  Followed them until he observed a minor traffic infraction (my client didn't use his blinker when merging onto I90).  The officer then stopped my client, didn't talk with him about the infractions, but immediately asked if he had been drinking.  The officer didn't observe any other signs of possible impairment.  Things like slurred speech, an odor of alcohol, finger dexterity issues, or even bloodshot watery eyes.  My client admitted to having a few drinks, the officer then pulled him out of the car, administered the field sobriety tests, and placed him under arrest.

It sounds like lots of people can be facing similar situations based on the worst bar offender database.  Remember if you have been stopped for a DUI and you have been drinking, there is probably a very good chance you will get arrested.  Even if you believe you're not under the influence.  Ask to speak with an attorney immediately.  Seriously give me a call, I will always answer my phone.

Leyba Defense PLLC

Monday, May 16, 2011

Different types of plea deals in a Washington State DUI case

Lately I have found it helpful to inform potential clients of the different options they may have in their DUI case.  Usually its helpful when meeting with a DUI Attorney to have an understanding and what may happen.  This kind of gives them an idea of the potential consequences they face, as well as the different types of plea deals that can be attained through negotiation.  The order goes from worst to best.

DUI charge (first offense)
1 or 2 days in jail depending on breath/blood test or 15-30 days of home detention
$866 to $1121 fine depending on test
90 day to 2 year license suspension
5 years probation
Alcohol/Drug evaluation
ADIS class
VIP class
1 year Ignition Interlock requirement

Reckless Driving
Usually 0 days jail
Usually $250 fine
30 day license suspension
No ignition interlock requirement
Alcohol/Drug evaluation
ADIS class
VIP class
2 years stay out of trouble

Reckless Endangerment
Usually 0 days in jail
Usually $250 fine
No license suspension
No Ignition Interlock Requirement
Alcohol/Drug evaluation
ADIS class
VIP class
2 years stay out of trouble

Negligent Driving 1
Usually 0 days in jail
Usually $250 fine
No license suspension
No Ignition Interlock requirement
Alcohol/Drug evaluation
ADIS class
VIP class
2 years stay out of trouble

Negligent Driving 2
This is a traffic infraction
Usually $250 fine

There are a couple of things to keep in mind.  Unless the DUI charge gets reduced to the traffic ticket or dismissed then it will always count as a prior DUI if you ever get charged with another one.  This would increase the penalties for the new DUI charge.

Remember if you have been charged with a DUI the goal should always be to try and get the charge dismissed.  However if that cannot happen then there is no reason the original charge cannot be reduced. Sometimes it takes a lot of hard work, research, and lots of investigation, but in the end there is always a legal issue to raise with the Prosecution when negotiation the case.

Leyba Defense PLLC

Washington Supreme Court Case - Harris v. Charles

I've been following this case for quite some time.  When the case first happened in Seattle Municipal Court I was actually present and witnessed former Seattle Municipal Court Judge Charles's actions.  Since then this particular case has had a long journey and a ruling was finally issued from the State Supreme Court last week.  Unfortunately I think its a bad ruling in (2) ways.  First it sets an unfair precedent that individuals who are in custody are treated differently if its a misdemeanor versus a felony; Secondly, its going to place an undue financial burden on the tax payers of this state.

Here is a little background on the case.  Basically this guy Harris was charged with a couple of crimes in Seattle Municipal Court.  At the time of his arraignment the Court set bail and imposed a condition of home detention (don't get me started on this, in my opinion its a clear violation of CrRLJ 3.2).  Harris posted the bail and got the home detention set up.  He ended up serving like 5 months on home detention at his own cost and then plead guilty.  Unfortunately for him former Judge Charles did not give him credit for any of the pre-trial confinement he was on, and sentenced him to additional jail.

His Attorney then filed a writ in King County Superior Court and argued this was violation of his equal protection because felons on pretrial conditions of EHM receive credit towards their sentence.  The Superior Court agreed, and sent the order back to SMC.  The City of Seattle then appealed that decision to the Court of Appeals which reversed the order, afterwards the Supreme Court granted review of this case.  And long story short they agreed with Court of Appeals.

The interesting thing about this opinion is the Supreme Court finds that people accused of misdemeanors are not similarly situated with people accused of felonies (who can receive jail credit for pretrial home detention).  The Court talks about how giving a misdemeanor Court pretrial EHM can affect a Judge discretion at sentencing and tie their hands since misdemeanor maximum sentences are not very long.  They go on to cite other reasons, but thats the gist of it.  And in my opinion is complete B.S.  If you're interested in reading the entire opinion here is it.  Harris v. Charles

The other issue I have with this decision is what happens now.  Are more Court going to require people to do EHM prior to trial in lieu of less restrictive options, just because they know the person will essentially be punished twice.  An article recently came out in the Seattle Times, stating that the Seattle Municipal Court is going to push for more defendants to be on pretrial EHM in lieu of jail.  Now this seems like a fine idea, I mean anyone would rather be out of custody than in custody.  But the cost of EHM is so ridiculously high that a person is going to pay a substantial amount of money for this option.  In addition to that, what if they get found guilty and they are coming off of a 1 year stint on EHM.  Is a Judge going to sentence them to an additional 1 year in custody, and us taxpayers are going to have to pay for them to stay in jail.  Last time I checked the cost of housing a person in the King County Jail was around $125 a day.  Guess who gets stuck with that cost, we as taxpayers do.

Remember if you have an upcoming Seattle DUI arraignment, please contact my office immediately.  Now more than ever its important you have an attorney present to argue against these unconstitutional and overly restrictive conditions.

Leyba Defense PLLC | Seattle DUI Attorney

Tuesday, April 26, 2011

DUI Probation Review Hearing

Yesterday I appeared on behalf of a client on a DUI probation hearing.  This client was not originally mine, but retained me just for the probation review hearing.  When I was a public defender I literally appeared on a couple thousand of these types of hearings.  They can be pretty simple or they can be very complicated, depending on the allegations and the underlying offense.

For those of you that don't know what this type of a hearing is.  Basically whenever a person is sentenced in a DUI case, it usually is to a suspended sentence.  A suspended sentence means that the Judge will suspend a portion of the maximum jail sentence (for a DUI its 1 year) and hold that over your head for the entire jurisdiction of the case (for a DUI its 5 years).  Now during this 5 year period, conditions of the sentence are imposed.  For example on a DUI case, a person will be sentenced to jail, fines, alcohol treatment, ignition interlock devices, and usually they have to stay out of trouble for the 5 years.

So whenever a person doesn't comply with the terms of the sentence or they get in trouble again.  A Judge will be notified of this and will schedule a DUI probation review hearing to address these issues.  And sometimes the allegations of the sentence violation are so serious the Judge will impose a portion or in some cases all of the suspended jail sentence that was hanging over the persons head.  This is what recently happened to Lindsey Lohan on her Reckless Driving charge.  One of the conditions of her sentence was that she had to stay out of trouble.  Now there is a criminal charge of felony theft and the Judge in her Reckless driving case revoked a portion of her suspended sentence.  I think it was 120 days or something like that.

Anyway the DUI probation review hearing case I was retained on, at first glance was a difficult situation.  The client had been in front of the Judge many times for other Review hearings.  These violations ranged from new charges, and not complying with alcohol treatment.  And usually when a person appears in front of Judge so many times, the Judge just gets tired of it.  They say to themselves that the defendant isn't taking this seriously, and there is nothing that can be done other than putting the person in jail.  And in this particular case this was the likely outcome.

However in the end I was able to convince the Judge to impose 14 community service hours, in lieu of the remaining suspended sentence.  How did I do that, you might ask?  Like I said, when I was a public defender I regularly appeared on these types of hearings.  And learned early on from another Attorney how to handle the Judges in these particular cases.  This particular attorney is a good talker and knows how to smooze.  I'll refer to him as Brabazon.

Anyway Brabazon taught me two things with these review hearings.  First he taught me how to highlight all the positives the defendant is doing, but at the same time not minimize the current allegations.  For example if a person hasn't been going to treatment.  I might say "its important for the court to note that my client hasn't been in trouble since this incident, and they haven't relapsed." "Although treatment is important, my client is not drinking and driving, my client is not committing new crimes, my client is not falling back into their old ways."  Etc, and etc.

The second and probably greatest thing I learned was how to "land on the grenade" for the client.  And yes this term was coined way before the Jersey Shore.  What this means is as an attorney you have to know when to take the heat for your client.  Lots of times in these Review hearings, the Judges are really pissed off and mad at your clients.  And you don't want them feeling that way when they decide what type of sanction to impose.  So right before a Judge is going to impose a sanction, and right when they are at their maddest.  I was taught to diffuse them.  For example in this latest case, the Judge started to say how my client only does things her way, and how the Judge told her at the last hearing that this was her last chance, and how she was going to put in her jail for a year.  I then politely interrupted the Judge.  Made a small joke by saying, "I appreciate everything the court is saying, and I know that Im coming into this pretty late in the game."  I then went on to tell the Judge that putting my client in jail wouldn't benefit anybody.  That she was doing everything she could, and etc.  The Judge then kind of turned her anger towards me, and told me how big the clients case file was, and how many times she has come before her.  I just politely said I know, and continued to smooze the Judge.  By the time the Judge got back to me client, I had taken all the heat.  And 14 community service hours were imposed.

Long story short, if you're facing a probation violation on a DUI charge.  Its important you hire an attorney that knows how to handle these types of cases.  Lots of times, private attorneys don't have very much experience with probation violations, because all their clients do what they are supposed to do.  And thus they never learned these tricks and strategies in representing someone on a probation case.  Because I was once a public defender, I have tons of experience handling these types of situations.  If you have an upcoming DUI probation hearing, please contact my office for a free 60 minute case consultation.

Leyba Defense PLLC

Friday, April 15, 2011

Results from Thursdays Traffic Crackdown on Aurora Ave

Here are some of the results from the Seattle Police Departments crackdown on Aurora Ave yesterday.

  • 31 for speeding
  • 80 no insurance
  • 62 cell phone
  • 6 Seattle DUI
  • 2 negligent driving
  • 23 license suspension 
Ouch.  The only thing more worthless than this operation is stripper gate.  Im glad we get to pay for all of this.  Read the rest of the results here.  

Leyba Defense PLLC
Seattle DUI Attorney

Wednesday, April 13, 2011

Seattle Police to Target Speeding on Aurora 4/14/11

The Seattle Police, Washington State Patrol, and the State Liquor Control Board will be planning an all day patrol to look for speeders and other traffic infractions.  Please drive safely.

Seattle PI Article

Leyba Defense PLLC

Tuesday, March 15, 2011

Breathing patterns can affect breath test results

A recent scientific article from Forensic Science International confirms something that Seattle DUI lawyers already know, that breathing patterns can affect the result of a breath test in a big way. In "Influence from breathing pattern on alcohol and tracer gas expirograms—Implications for alcolock use", the Swedish authors conclude from their studies that the measurement of a breath alcohol result is greatly influenced by the timing of the test and the breathing pattern of the person taking the test. Specifically, shallow breathing or hyperventilation can lead to a lower breath test result. Conversely, deep breathing and holding the breath before blowing can lead to an increased breath test result.

There are a couple of points to be made here. First, the machine is supposed to be giving us an accurate measurement of what a person's actual breath alcohol content is. It should not be too high or too low based on how the person is breathing, especially since everyone breathes differently, and people who have been arrested are often crying, in shock, angry, etc, and not breathing in their normal breathing pattern. This is more proof that the number that the machine spits out is just a “guesstimation,” at best.

Second, police officers that know this information can use it to manipulate test results (just as a subject could). I am able to obtain and watch a video recording of the breath test in almost every Seattle DUI case, which I handle. It is very common to see police officers demonstrate to the subject to how to take a deep breath and hold it, before blowing in the machine. Whether the officer realizes that this can influence the test result, I don't know. But, it is very, very common. If nothing else, taking a deep breath and holding it tends to heat up the breath to be expired. The machine is calibrated to assume that the expired breath is 34 degrees Celsius +/- .2c. 34 degrees Celsius is 93 degrees Fahrenheit. The human body is, on average, at a temperature of 98.6 degrees Fahrenheit, or 37 degrees Celsius. Expired breath is expected to cool as it leaves the human body, thus the assumption of the lower temperature by the breath test machine. However, if the breath is warmer than 34 degrees Celsius, the test result will be skewed higher. Holding the breath will make it closer to the 37 degrees Celsius of the human body when it is expired.

The bottom line is that there are dozens of variables that can affect what the breath test result is at any given moment. These variables include breathing patterns, body temperature, partition ratio between the breath and blood, inherent margins of error in the machine, the inherent margin of error in the gas or solution used to calibrate the machine, burping, crying, hyperventilating, interfering chemical compounds, voltage fluctuations in the power supply to the machine, radio frequency interference from police radios, cell phones, etc. Every person's biology is different, but the machine treats everyone as if they were the same. Every person's breathing pattern is different, but the machine assumes that everyone is breathing the same. Alcohol in the blood is what makes people intoxicated, not alcohol in the breath. The machine has to make assumptions about the breath, and calculations and conversions based on those assumptions to estimate what the blood alcohol content is. The assumptions and estimates these outdated machines make leave too much reasonable doubt in my opinion as to what a persons actual blood alcohol level is and whether they are actually guilty of a Seattle DUI.  

Thursday, March 3, 2011

Field Sobriety Test FAQs and other thoughts

Lately I have had several potential clients accused of DUI meet with me and have some interesting issues with the Field Sobriety Tests or FSTs for short.  The purpose of this article is to kind of clear the air on people’s misconceptions about these tests, whether you should take them, and how accurate they are.The FSTs are a battery of tests that police officers will ask that you complete, usually while on the side of the road, when investigating for DUI, so they can “make sure you aren’t too impaired to drive.”  These tests are completely voluntary and you have the option to decline them.  Since they are voluntary.  Don't do the Field Sobriety tests!  Let me repeat, don’t do these tests, I cant tell you how many former clients I have still do these tests.  Remember they don’t satisfy any court requirement and they usually only incriminate you further on your DUI

So what are they?  There are 3 main SFST’s that are employed by most of the law enforcement agencies in Washington State when investigating a DUI

1.  The first is one of the most well known among civilians – the officer waiving a pen in front of your face and telling you to follow it with your eyes. This test is known as Horizontal Gaze Nystagmus (HGN). The officer will slowly move a stimulus (usually a pen) in front of your eye (right to left, or left to right) to determine whether your eyes are able to track the pen in a smooth manner (checking for nystagmus – an involuntary jerking of your eyes).

2.  The second test that will usually be asked to complete is the Walk and Turn. The officer will have you stand in a starting position while you are listening to his instructions. You will then take 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back to the start line. This is considered a “Divided Attention” test (i.e you will need to concentrate on two things at one – listening to directions while maintaining the start position but not actually starting).

3.  The last of the SFST’s is the One Leg Stand.  Here the officer will have you maintain a start position while explaining the directions (another “dividend attention” test). Once the officer instructs you to begin, you will raise one leg approximately 6 inches off of the ground with your foot pointed out and count out loud (one-one-thousand, two-one thousand, three-one thousand) until they tell you to stop.  Which is supposed to happen after 30 seconds. 

Now there are some other field sobriety tests that can be requested of you, usually Seattle Police Department Officers will request you complete these tests in addition to the main three.  Typically you will see these from some of the members of the DUI squad.  

The other field sobriety tests include:
·       Add 20 + 21
·       saying ABC’s (not singing),
·       counting backwards between two numbers,
·       finger dexterity (finger to nose),
·       Romberg Test (you stand still with feet together, arms at sides, head back, and eyes closed – the officer will check for swaying).

So how accurate are these field sobriety tests?  Well there was some studies done by the National Highway Traffic Safety Administration back in the late 70’s and early 80’s.  Beginning in late 1975, the Southern California Research Institute under the guidance of NHTSA traveled to law enforcement agencies through the US to select the most commonly used field sobriety tests.  Six tests were used in the initial stages of this study.

Laboratory research indicated that three of these tests, when administered in a standardized manner, were a highly accurate and reliable battery of tests for distinguishing alcohol levels about 0.10.  NHTSA analyzed the laboratory test date and found: HGN, by itself, was 77% accurate; WAT, by itself was 68% accurate, and OLS, by itself was 65% accurate.  When HGN and the WAT were combined an 80% accuracy was achieved. 

Now let me preface these results for a minute.  These tests were conducted in controlled environments.  Meaning they were done indoors, on a level surface, with good lighting, and performed by people with nothing to lose.  This is what most police officers, and prosecutors don’t understand.  When a person is on the side of I5, with cars speeding by them, its 20 degree outside, the officers overhead lights on blinking, they are scared and never been in trouble before, facing the strong likelihood of going to jail.  Obviously this is going to affect how a person does on these roadside gymnastics tests.  Imagine taking a test in school, and if you didn’t get a “B” you would go to jail.  That’s a lot of pressure if you ask me.  In addition to that these tests in my opinion are nothing but junk science.  But that’s for another blog. 

In summary, remember to talk to an attorney before you do these tests.  If you have had alcohol to drink, and the police officer smells an odor, chances are you’re going to get arrested for a DUI.  Regardless if you do these tests are not.  So you might as well make things easier on yourself, and your DUI Attorney and politely decline.  If at any time you ever have a question when you’re being investigated by a police officer always ask to speak with an attorney.  Seriously.  You can call me anytime.  24/7.  I will always pick up.  Or you can ask to speak with a public defender.  Usually police officers have that number on speed dial.   

Saturday, February 26, 2011

Leyba Defense PLLC quoted in the Wall Street Journal

This past Friday, Leyba Defense PLLC was quoted in the Wall Street Journal.  A couple of weeks ago I blogged about a new bill that was being proposed in the Washington State Legislature that would require those convicted of DUI's to have a special letter in their license plate.  Well I was contacted last week by a journalist from the Wall Street Journal who wanted to write a story about this new bill, and some other states that have already enacted this kind of legislation.  Read the article here.

Matthew A. Leyba | DUI Attorney

Monday, February 21, 2011

New DUI case result

Below is my most recent DUI success.  At first glance this was a very difficult DUI case to take on.  But this result shows how hard work, extensive research, and a little luck can result in any case being dismissed.  In my opinion 99% of DUI lawyers out there would have just pled the client guilty.  Leyba Defense PLLC prides itself on pushing legal issues, and fighting until the end on behalf of our clients.  

February 2011 - .219/.217 DUI Dismissed for no PC to arrest
King County District Court: Matthew's client was arrested for DUI on I-5. Client was involved in a one car collision. Trooper noted slow and labored movements, watery bloodshot eyes, flushed face, odor of alcohol, and slurred speech. Client declined the field sobriety tests and blew a .219 and .217 alcohol level. Judge dismissed after DUI Lawyer Matthew Leyba filed a motion to dismiss for lack probable cause to arrest.

To see the results of our most recent success click here.  Remember lots of DUI Attorneys out there promise results, at Leyba Defense PLLC we get results.  There is a big difference.  

Matthew A. Leyba | Attorney
Seattle DUI Defense

Wednesday, February 16, 2011

DUI and Entrance to Canada

Since Washington State borders Canada I bet a lot of you travel there fairly often.  I know my wife and I love to go to Vancouver, BC as much as we can.  We go there for the shopping, the nightlife, and the food.  Especially the dim sum and other great restaurants we have found.  Yum!

But what a lot of people may not know is a DUI can prevent you from entering Canada.  Even having a DUI amended down to a reckless driving or negligent driving can still prevent entrance to Canada.  In this blog I would like to explain the three ways to gain admittance after being convicted of a DUI.

1.  If the completion of your DUI sentence is less than 5 years old, you can apply for a temporary resident permit.  Last time I checked the cost is around $200.  However this process can take months.

2.  If your completed DUI sentence is more than 5 years ago, you can apply for approval of rehabilitation.  The nonrefundable fee is $200 or $1000 (depending on the severity of the crime).  You will need to provide a "police certificate" of criminal history, if any, from every state which you have lived more than six months since age 18.  Also, you will have to provide dates, home and work addresses for each state you lived in since age 18.  Processing time can take a year or more.

3.  If you had one DUI completed over 10 years ago, you can apply for approval of of rehabilitation actually right at the border.  You arrive at the border with application completed in hand.  If approved, the past DUI will no longer be an issue, and you can come and go as you please.

This is a tricky area of the law especially with DUI charges, DUI reductions, and Washington State being so close to canada.  Below are some links for additional information.  Remember if you have any questions feel free to call my office to speak with an experienced DUI Attorney.

Canada International FAQs

You can also call the immigration section of the Canadian Consulate at 206-443-1372.

Matthew A. Leyba
Seattle DUI Attorney

Tuesday, February 15, 2011

Proposed legislation to require drivers convicted of DUI to be labeled with a "scarlet z"

Above is a link to a proposed bill requiring those convicted of DUI to have a letter z on their license plate.  Talk about a stupid idea.  This is just like the Scarlet Letter A, except its for people who were convicted of a DUI.  This state legislator is up in the night.  Come on.

Seattle DUI Defense

Friday, February 4, 2011

Super Bowl Sunday DUI Emphasis Patrols

Remember to be safe this Super Bowl weekend.  Extra DUI emphasis patrols are going to be out in both Seattle, and throughout Western Washington.  Click the article above to read the specific areas that are being targeted.  

Leyba Defense PLLC
Seattle DUI Defense

Thursday, February 3, 2011

Pleasant interaction with Washington DOL today

Today I had a Washington Department of Licensing Administrative Hearing today.  For those of you that don't know what this is.  When a person gets arrested for a DUI or a Physical Control charge in Washington State they are usually asked to submit to a breath or blood test.  Based on the results of that test, the police officer will send in the results to DOL.  DOL will then automatically suspend that persons drivers license 60 days from the date of arrest, unless that suspension is challenged.  As a DUI Attorney my representation includes this DOL hearing, so as you can imagine I deal with DOL quite often.

Anyway I had a DOL hearing today for a client who was arrested in Seattle for a DUI charge.  This was clients first offense, and I had already negotiated a reduction to Negligent Driving First Degree.  This would ensure that my client would not face a license suspension from the Courts, however he was still facing one from DOL.  As part of my investigation I conduct a thorough review of the police report that DOL sends me.  I have created a 4 page checklist that I go through, so I don't miss any issues in the report that could argue to DOL.  Sometimes police officers forgot to check certain boxes, or they accidentally omit information, or they provide incorrect information.  These are just some of the many  technicalities that can result in a person winning their DOL hearing.

So on this particular case, I had noticed that the Officer had provided his breath test permit card.  This card shows that a police officer is qualified to administer the breath test.  However they expire every 3 years, and the police officer needs to renew it.  In this case the police officers permit card was expired on the day he arrested my client and administered the breath test.  The problem was that he checked a box in the police report that said he was qualified to administer the test and he had a current breath test permit card.  In addition to that at the beginning of the police report he had written some boiler plate language that Im sure he includes in every report, but it said he was qualified to administer the breath test.

Now even though the permit card was expired, I thought the DOL would find there were sufficient facts to show he was qualified based on the report that he submitted.  I had prepared a lengthy argument against this, including some contract law principles.  I was prepared to argue as much as I could to dismiss this license suspension.

Here is the pleasant part.  When the hearing officer called me, before he started the recording.  He told me that he noticed the police officer had an expired permit card, and I should make a motion when he starts the recording.  I was shocked to say the least.  Here I thought I was going to have to duke it out with this hearing officer over this DUI permit card, but the hearing officer recognized a legal technicality and rather than try to make up a reason not to honor it, he did the right thing.  Some hearing officers would not have done that, and probably would have suspended my clients drivers license.  But on this case, the hearing officer did what was not only right, but what was legal.

I made the motion to dismiss because there was insufficient foundation to introduce the breath test.  The hearing officer agreed, and dismissed the proposed license suspension.  BAM.  Thats what a little leg work, and preparation will do.

Remember if you have been accused of a DUI and you're facing a proposed license suspension from DOL make sure you challenge that suspension.  It can mean the difference between no license consequences at all versus a license suspension, mandatory ignition interlock, and SR-22 insurance.

Matthew A. Leyba | Attorney
Leyba Defense PLLC | Seattle DUI Defense

Tuesday, February 1, 2011

DUI Ignition Interlock requirements in Seattle

If you have been charged with a DUI or physical control offense in either Seattle or Washington State chances are you may be facing the possibility of having an ignition interlock device installed in your vehicle.

In case you're not familiar with what this is.  An ignition interlock device or breath alcohol ignition interlock device (IID and BIID) is a mechanism, like a breathalyzer, installed to a motor vehicle's dashboard. Before the vehicle's motor can be started, the driver first must exhale into the device, if the resultant breath-alcohol concentration analyzed result is greater than the programmed blood alcohol concentration—usually 0.02% or 0.04%, the device prevents the engine from being started.

At random times after the engine has been started, the IID will require another breath sample. The purpose of this is to prevent a friend from breathing into the device, enabling the intoxicated person to get behind the wheel and drive away. If the breath sample isn't provided, or the sample exceeds the ignition interlock's preset blood alcohol level, the device will log the event, warn the driver and then start up an alarm (e.g., lights flashing, horn honking, etc.) until the ignition is turned off, or a clean breath sample has been provided. A common misconception is that interlock devices will simply turn off the engine if alcohol is detected; this would, however, create an unsafe driving situation and expose interlock manufacturers to considerable liability. An interlock device cannot turn off a running vehicle, all that an Interlock device can do is interrupt the starter circuit and prevent the engine from starting.

Now as I said before you have been charged with a DUI or physical control offense in Seattle or Washington State there are potentially 3 times you could face possibility of being required to have this device installed:

First, would be at your DUI arraignment in Seattle or Washington State.  From previous blog postings you should be familiar with this process.  If not click here, or visit my website.  At your arraignment the Judge will determine whether or not to impose conditions of your release while the DUI or Physical Control case is pending.  Typically these conditions include abstaining from alcohol, no driving unless valid license and insurance, and appear for all court dates.  However in certain circumstances the Judge can imposed enhanced conditions of your release.  These can include bail, electronic home monitoring, or installing an ignition interlock device.  These circumstances on determined on a case by case basis, and can occur if a person has been convicted of a DUI before, or if they were involved in an accident, or if they had a high breath test.  Unfortunately many DUI attorneys don't know the law for when these enhanced conditions can be imposed.  Usually if your case is filed in Seattle Municipal Court, chances are an ignition interlock device will be imposed at your arraignment.   At Leyba Defense PLLC we strenuously object to these conditions as a violation of a persons DUI process as well as a violation of the Criminal Rule 3.2 (release of the accused).  If you have had an ignition interlock device imposed at your arraignment, contact my firm immediately to determine the best course of action to get this thing removed.  As of the last 4 cases to have an IID imposed we have taken, my firm was able to get that condition released by the next court hearing.

Second, would be for any conviction of a DUI or Physical Control charge.  Based on a conviction the Department of License can require a person to install an ignition interlock device for either 1, 5, or 10 years depending on the number of prior requirements, and the persons criminal history.

Third, would be if you applied for an ignition interlock license.  In Washington State the Legislature passed a bill a couple of years ago which no longer required a person to sit out their license suspension.  Now if a person get their license suspended either administratively or from a conviction, they can apply for an ignition interlock license.  There are three requirements: 1. Install an ignition interlock device in car, 2. Apply and get SR-22 insurance, 3. Fill out the application and send in the fee to DOL.  Once DOL receives proof of these three requirements, it usually takes 3-5 business days to issue the ignition interlock license.

If you have been ordered to install an ignition interlock device from your DUI or Physical Control in Seattle or Washington State, you should contact my firm immediately to understand the requirements exactly.  If a person has been ordered to have an ignition interlock device in their vehicle, and they get caught driving without it, there can be severe sanctions imposed.  Bail and your personal recognizance can be revoked, you could be charged with a new criminal offense, and you can face other potential collateral consequences.

Matthew A. Leyba | DUI Attorney