Physical Control trial last week

So its been a couple days since the worst loss of my legal career.  Im finally starting to get over it a little bit, but it still really, really stings.  I especially feel for my client.  He is a stand up guy, never been in trouble before, and because of some unfortunate circumstances he now has a criminal conviction on his record.  That is the toughest part to swallow.

In my legal career I have litigated over 100 jury trials, and probably another 15-20 bench trials.  And in all of those cases I have never had a Judge completely take over a case by their legal rulings.  Sure I have lost motions, and I have had objections overruled, but I have never had a Judge be the direct cause of a jury convicting my client.  That is until now.

Earlier this week I had a Physical Control case get sent out to trial in a local municipal court.  For those of you that don't know, Physical Control is basically like a DUI, except there is no driving.  For example, if a person gets into a car accident, or if they pass out at a red light, and nobody sees them driving.  Usually they will get charged with physical control, because for a DUI there needs to be direct evidence of driving.  Physical Control just needs a person to be impaired, and in sitting in their vehicle.

However in a Physical Control case, the Washington State Legislature has enacted a defense somebody can assert if they are charged with this crime.  That defense states, "if prior to being pursued by a police officer a person safely moves their vehicle off the roadway they cannot be found guilty of this charge."  In other words if a person realizes they are too impaired to drive, and they do the responsible thing by pulling over, and trying to sober up, or sleep it off, they cannot be found guilty of this charge.

In my case, my client had been drinking at a work party.  After the party realizing he was too impaired to drive, he had a friend drive his car to the friends residence.  He thought the additional time would help him sober up a little bit, but it didn't.  So instead of trying to drive his car home, he decided to drive approximately 2 blocks, and he pulled over and safely parallel parked his car on the shoulder of the road.  This was a business/industrial area, this was a very wide road that was not heavily traveled.  He wasn't pursued by a police officer, he didn't get into an accident, nothing.  He safely pulled over, parked his car, turned the headlights off, took the keys out of the ignition and placed them in the center consul, and went to sleep.

About 3-4 hours later a do-gooder bicyclist riding home in Seattle around 2 am called 911 to report a suspected drunk driver.  Even though my client wasn't driving, wasn't harming anyone, and hadn't moved his car in over 3 hours, and was parked on the side of the road, the Seattle Police came and arrested him for Physical Control.

When I was retained on the case, I thought for sure my client was be offered a plea deal to this charge.  Either a reduction to a lesser offense, or possibly even have it dismissed by the Prosecutor.  Unfortunately for him though, his case was in a local municipal court, where cases rarely get dismissed, and DUI's rarely get reduced.  So after a couple of months of negotiating with the Prosecution we eventually decided to set the case for trial, and assert his legal defense.  After all he had parked his car, and was safely off the roadway.

Now I have had 2 prior clients in in this exact same municipal court actually go to trial when charged with Physical Control, and assert this legal defense.  And both clients were found NOT GUILTY by a jury.  In those cases two different very good and knowledgable Judges allowed me to argue to the jury the client was safely off the roadway, and both times the jury agreed.  So I felt confident in this case, that the exact same result would happen.  After all the facts in those cases, and the facts in this case were virtually identical.  In fact I would say those cases were more difficult because the keys were in the ignition, and in one case the car was running.

So on Tuesday morning we were sent out to trial.  The Judge we got assigned to is just a Pro-Tem Judge, meaning he was just substituting in for the regular Judge.  I have known this Judge since I began practicing law, and I have appeared in front of him many times.  This Judge is not the best Judge when it comes to the law, and I have gotten some bad rulings from him in the past.  But he was the best option at that time, so I chose to go forward with him.  A decision that Im going to regret for the rest of my career.

So trial started, we picked the jury.  I felt okay about them, not great.  But I've done this so many times that I know you're never going to get the perfect jury.  Or very rarely does this happen.  I mean there are always going to be jurors you don't like, or you maybe have an uneasy feeling about but sometimes you just have to accept the panel or risk getting a juror that you really don't like.

The Prosecution started their case in chief.  They called two witnesses the do-gooder bicyclist, and the Seattle Police Officer (whom by the way I very much respect).  After I was able to cross examine them I felt really good about the case.  We were laying all the foundation for our defense, and I thought things were going really well.

After the Prosecution rested, my client chose to testify.  He stipulated that he was impaired, but since we were asserting the legal defense you can do that.  His testimony went great, I couldn't have planned anything any better.  After his testimony we rested, and took a recess for lunch.  After lunch is when everything turned to shit.  And I mean turned to shit.

So when get back from lunch, the first thing that happens completely blows my mind.  The Prosecution tries to add a charge of DUI, in addition to the Physical Control charge.  This was based on my client admitting he drove the two blocks.  To be honest I was a bit surprised they were doing this, I wasn't too concerned however because I know the law in this area, and the law doesn't allow this sort of thing to happen.  But what truly shocked me was the Judge initially seemed like he was going to allow this.  I mean there are Washington State Supreme Court cases that say this is not permissible.  This is not something that can happen.  Well except in this local municipal court and with this Judge it can happen.

After the Prosecutor made their argument, the Judge looked at me, like I needed to say something.  I couldn't believe it, the Judge was asking me for my position on this and whether I objected.  Are you kidding me?  After I realized that this was going to happen, that this Judge was going to allow the Prosecution to add an additional charge after both parties rested.  I politely pointed out to the Judge that there was case law on this point.  That it is not permissible, and I gave him the case names.  Finally after what seemed like an eternity the Judge agreed and denied the Prosecutions motion.  Thankfully I had the cases in my trial folder, but this was just a precursor of what was to come of bad rulings.

Then came probably the worst legal decision I have ever seen or heard of in my entire legal career.  The Prosecution stood up, and told the Judge they were objecting to the defense asserting this safely off the roadway defense.  I had expected this, since this case was in Seattle, and things tend to be more difficult there than anywhere else, but I didn't expect what happened next.  The Judge agreed and said my client wasn't off the roadway, and where he was parked wasn't the shoulder.

I couldn't believe it.  As I said before I have litigated this exact same issue in in this local municipal court two times before (see those cases here).  And I have always been able to argue this defense, and this case was exactly the same as the prior cases.  So what was the difference.  The Judge.

Now in Washington, case law states that the question of safely off the roadway is a question of fact for the trier of fact.  Meaning the jury is to decide this, not the Judge.  But for some reason the Judge didn't want to follow this and said it wasn't.  In addition to that the Judge created this own definition of what a roadway, and what a shoulder was.  Essentially the Judge created new law, and didn't follow the existing law.  

I tried to object.  I argued as much as I could.  I said this was a question of fact for the jury.  I said that the City of Seattle cant have different traffic laws and definitions than the rest of the state (For example the Revised Code of WA which is the state statutes, doesn't have a definition of shoulder and curb).  The traffic code needs to be uniform throughout the state.  In addition to that if a criminal statute is ambiguous a Judge is to interpret that ambiguity in favor of the defendant.  This was our defense, this is what we built our entire case around.  In the end he didn't care, and subsequently we couldn't argue this defense.

After this happened, we weren't left with much to argue.  As I said before this was the worst legal ruling I have ever seen or heard of.  This runs completely afoul of the law, and violated my clients due process rights.  I really hopes my client decides to appeal this ruling, because there is no doubt in my mind it will get reversed.  I truly don't believe he did anything wrong by pulling over and trying to sleep it off.  This is exactly what the State Legislature wants people to do, which makes it so baffling he couldn't argue this at trial.

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

Possible new legislation requiring vehicles to be impounded 12 hours after DUI arrest

Click above to read an article discussing Hailey's Law SB 5000 which would require all vehicles to be impounded after a Seattle DUI or Washington State DUI arrest.

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

Huntington Beach won't put DUI arrests on Facebook

I posted the first article regarding this topic earlier in the week.  It now looks like this idea is being shot down by the Huntington Beach, CA city council.  This new article discusses some of the public backlash this idea was receiving, as well as some of the problems I discussed.  Mainly a person's right to be presumed innocent, and privacy laws to mention a few.

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

More than 800 in King County arrested for DUI from 11/25/10 - 1/2/11

Read article here

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

DUI arrest may lead to Facebook shaming in California

Attached is a link to an article I read this morning titled "Drunk Driving May Lead to Facebook Shaming"  The gist of the article talks about how a city councilman in Huntington Beach, CA wants to post a mug shot on Facebook of any individual with more than 2 DUI arrests.  In the article council member is quoted as saying, "If it takes shaming people to save lives, Im willing to do it," "Im hoping it prevents others from getting behind the wheel and getting inebriated."

As a Seattle DUI Attorney, I found this article very disturbing.  Am I in support of people drinking and driving, no Im not.  However if someone chooses to make that decision, then they are entitled to all of the same constitutional rights that everyone else is afforded in our country.  Mistakes happen, and sometime good people make bad decisions.  However everyone has been there, everyone has made a mistake at least once in their lives and most people feel horrible about it afterwards.  I have been a DUI Lawyer for quite some time and I have not once had a client who told me they didn't feel bad for the decision they made, and they didn't regret it.  So its not like people don't recognize the mistake they made.

But the real disturbing part of this proposed idea, aside from the privacy issues this would raise, how about the presumption of innocence.  I found it interesting this article didn't talk about prior DUI convictions, but only DUI arrests.  So basically if a person is falsely accused of a DUI, then they can face the humiliation and embarrassment that this would cause simply because they were arrested.  Un-freaking-believable!

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

Seattle DUI Arrest

Arrested for a DUI?  What to expect…

If you have been arrested for Seattle DUI there are likely two separate legal actions against you:

1. The Department of Licensing may seek to revoke or suspend your drivers license
2. You may have to appear in court where you will face criminal charges

1.  Department of Licensing action

What are my immediate concerns with the Department of Licensing?

• If a hole was punched in your driver's license, it means the Department of Licensing intends to suspend or revoke your license effective 60 days from your arrest.
• You may request a hearing to contest this suspension that must post marked within 20 days of the arrest.  A nonrefundable $200 fee and the DOL hearing application form must be submitted.
• Your license may be suspended from 90 days to 4 years, based on prior offenses and your blood alcohol level plus you may be required to have SR-22 insurance. 

What happens if I contest my license suspension?

• A hearing will be held within 60 days of the date of Seattle DUI arrest by phone or in person.
• You will be assigned a hearing officer who will determine the following:

1. Whether the officer had reasonable grounds to stop you
2. Whether you were under lawful arrest
3. Whether you were read your rights
4. Whether your alcohol level was over the legal limit or whether your refused the breath test
• If your license gets suspended by the Department of Licensing you may be eligible to apply for an ignition interlock license or an occupational restricted license. 

2.  Criminal case action

If you are formally charged, your first court date will either appear via a summons through the mail or on a ticket issued to you at the time of your arrest.  Find your next court date & court location. 

What happens at your arraignment?

• Your first court appearance is your Seattle DUI arraignment. 
• This is where the Prosecutor will read the charges against you, and you will formally enter into a plea. 
• The Judge may set bail, and/or impose conditions on your release.

What happens at your next hearing?

• If you didn’t speak to a Seattle DUI attorney before your arraignment, you need to contact one immediately.
• The next hearing after your arraignment is a pre-trial hearing. 
• Typically one of three things may happen at this hearing:

1. You can continue your case to another pre-trial hearing for a variety of reasons.
2. You can pled guilty as charged or accept any plea deal that you get offered.
3. You can maintain that you are not guilty of this crime and set your case for trial.

What happens if you set your case for trial?

• You may request either a bench trial heard by a Judge, or a jury trial heard by a group of your peers
• Typically you will have several court dates in between your pre-trial and jury trial that you may or may not be required to attend
• A jury trial on a Seattle DUI case may last 1 day or 1 week depending on the number of witnesses, and evidence that will be presented.  You will be required to attend every day of the trial
• If you are found not guilty then the case will be dismissed.  However if you are found guilty then RCW 46.61.5055 will determine your minimum sentence. 

Questions to ask when interviewing a DUI Attorney

Questions to ask when interviewing a DUI lawyer

There are literally hundreds and hundreds of Attorneys out there advertising themselves as a DUI Attorney or DUI Lawyer. And like all professions there are good ones and there are bad ones.  When you interview them you need to weed out the good ones from the bad ones. So I have compiled a list of 5 questions to take with you when interviewing a DUI Lawyer:

1. Do you practice exclusively in DUI Defense? This is important because there are a lot of attorneys that do advertise as Seattle DUI Attorneys. However there are very few that exclusive practice DUI Defense. DUI practice is very specialized and in order for you to have the best chance of beating this type of charge you need an Attorney that exclusively limits their practice to DUI Defense.  You need someone who knows the prosecutors and Judges, and understands the ins and outs of this particular area of law.   Leyba Defense PLLC exclusively practices DUI Defense. I would say about 95% of our cases are DUIs

  

2. How much experience do you have? This question is pretty similar to the one above. When I mean experience I don’t mean how many years have you been practicing law (although that is important). I mean how many DUI cases have you defended. This is important because you need a Seattle DUI Attorney that knows what it takes to defend a case and has the experience to rely on. Anybody go start their own law firm after law school.  In fact I’ve met a lot of attorneys who have done that.  However in a DUI case there are many different types of situations that can unexpectedly arise. Having a DUI Attorney that has been there and done that, will greatly enhance your chances of beating it.  I would say a DUI Attorney that has defended over a thousand DUI cases would have this type of experience.   Most of the cases I have defended as an Attorney have been DUI's. I first began work at the Spokane County Public Defenders Office. There I worked for two years in their DUI court. Meaning all of the cases I had where DUI's. The next four years I worked at one of the largest criminal defense firms in the State. There probably 75% of my cases were DUI's. In 2010 I opened Leyba Defense PLLC, my own law firm which focuses exclusively on DUI Defense.  In my career I have probably defended a couple thousand individuals accused of DUI. 

3. How many cases have you taken to trial recently, what were the results? As I stated before there are literally hundreds and hundreds of attorneys advertising themselves as a DUI Attorney. However very few actually go to trial and have the experience needed to get you a not guilty verdict. Going to trial is hard work. It’s really hard. Ask any trial attorney. And when a client is facing jail if you lose, there is a lot of pressure knowing that. The reason I think its important to find a DUI Attorney that shows they go to trial is very simple. In Washington State any time a person is charged with a DUI they face a mandatory jail sentence and fine. And lots of times the Prosecutor is not willing to negotiate and wants the mandatory jail and fine. Well my firm’s philosophy on defending DUI cases is very simple.  If you believe you’re not guilty, or if the Prosecutor wants you to plead guilty then I say set the case for trial.  Because in DUI cases if a person is found guilty at trial, then most times they will receive the exact same sentence that the Prosecutor wanted them to plead guilty to in the first place.  So my question to other DUI Attorneys, who don’t have this same philosophy, is why not.  I’ll tell you why it’s because they are either scared, or they don’t want to work hard.  Either way that is not the type of Attorney you want on your side.  Of the last 100 DUI's I have defended probably 50 have been set for trial and 25 have been taken to verdict.

4. What are your fees? As you know by now there are hundreds and hundreds of Seattle DUI Attorneys. And they all have different fees, and retainers. Ask what they are and like all things you get what you pay for.  If you’re going to hire the least expensive person you can find, then most likely that person will do the least amount of work on your case.  But at the same time I don’t think you need to hire the most expensive person either.  My fees vary depending on the facts of the case, a person’s criminal history, and the number of witnesses involved.  However I believe I fees are very competitive with other firms out there and they are always completely set out in the fee agreement.  I will never try and nickel and dime you for more money. 

5. How many DUI cases do you have right now? In this business there are attorney's known as "turn em and burn em" type of attorneys. These are the DUI Attorneys that have lots and lots of clients. And they only have one goal to get you to plead guilty as soon as possible so they can move on to the next person. Typically this is the attorney that charges the least amount you will find. Or the DUI Attorney that will say "even though you don’t have any criminal history, and this DUI case does not have egregious facts, you could get a substantial amount of jail if you lose at trial you should just plead guilty." I have no respect for these types of attorneys, and in my experience I would say about there are quite a few Seattle DUI Attorneys I see do this.   Part of the reason I left my last job was because of the high caseload I had. It was very difficult for me to give everything I had for every client. At Leyba Defense PLLC I keep my caseload small. By limiting the number of clients I take, I can devote more time to each case and each client.

Matthew Leyba | Attorney

Leyba Defense PLLC | Seattle DUI Defense

Seattle DUI Deferred Prosecution

Should I consider a DUI Deferred Prosecution?

A Seattle DUI or a Washington DUI for that matter is a very serious offense.  When a person is charged with this particular crime they face a mandatory amount of jail, a mandatory fine, a mandatory license suspension, a mandatory ignition interlock requirement, and period of probation.  These penalties vary depending on the number a prior DUI’s a person has and what the breath or blood alcohol level was. 

            However despite these penalties if a person is charged with a DUI then can choose to enter into what’s called a deferred prosecution.  This allows the accused to defer and potentially avoid all the mandatory jail, fines, and license suspension if they agree to certain terms that are outlined in RCW 10.05.   A person can do a deferred prosecution once in their lifetime for a DUI charge. 

            Now this may seem like a great idea, but a deferred prosecution is very complex resolution with very strict guidelines.  Essentially in order to qualify for a Deferred Prosecution on your Seattle DUI or Washington State DUI the first thing you need to do is a complete an alcohol and drug evaluation.  The results of this evaluation must find that you suffer from alcohol or drug dependence, and that you will enter and complete a 2-year alcohol/drug treatment program.  The cost of this type of programs depends on the individual treatment center where the program will be, whether you have insurance that might cover some of this.  But plan on spending around $3000 - $6000 on this 2-year treatment plan. 

            In addition to the 2-year treatment plan, you will enter into a contract with the Court where you Seattle DUI or Washington State DUI is in.  You will have to agree to a contract between you and the Court that will last 5 years.  During those 5 years if you successfully start and complete the 2-year treatment plan, abstain from alcohol and drugs, monitored by probation, and agree to having a functioning ignition interlock device in your vehicle the Court will dismiss the Seattle DUI or Washington State DUI charge at the end of the 5 years. 

            However if you fail to live up to your end of the bargain, when you enter into the Deferred Prosecution you agree that there are enough facts in the police report to find you guilty, and you waive your right to have a jury trial.  So if at any time during these 5 years it can be shown by a preponderance of evidence that you’re in violation of any of the agreed terms of the Deferred Prosecution the Judge can revoke your deferred and impose all the mandatory penalties allowed by law. 

            Many DUI Attorney’s tell people that a deferred prosecution is a good idea, because they can avoid all the jail and fines, and ultimately get the thing dismissed.  However my firm is very cautious about representing people who might want to consider this option.  In fact as of writing this, of the last 100 DUI’s we have defended only 4 people have entered deferred prosecutions.  That is only 4%.  Why?  Because there are a lot of things at stake and there are certain people who might not make the best candidate for this option. 

            If you’re considering this option or would like more information on entering a deferred prosecution on your Seattle DUI or Washington State DUI, please contact my office immediately.  An experience Seattle DUI Lawyer will be able to answer all of your questions and inform you of whether this might be a good option for you.  

Matthew Leyba | Attorney

Leyba Defense PLLC | Seattle DUI Defense