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
Thursday, October 27, 2011
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.
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.
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