Friday, December 21, 2012

Pot users at risk for DUI even if below the legal limit in Washington State

I just read an article about an issue dealing with the recent marijuana legalization here in Washington state and a DUI.  To be honest I hadn't thought about this particular issue the article raises, but I find it very interesting.  Essentially the article discusses how many law abiding citizens of Washington state, who have never tried marijuana are going to go out and purchase it legally now?  And of those people how many are at risk for DUI?

You see the general public out there only see one thing when it comes to marijuana and DUI.  They see the legal limit as 5 nanograms.  What do they have to compare that to?  Well the legal limit for an alcohol DUI is .08 blood alcohol level.  So the general public sits back and thinks.  Well if I can have 2 beers an hour, or a cocktail an hour.  Whatever they think they can have to get below the legal limit, they may apply that same line of thinking when it comes to marijuana.

The problem with that line of thinking is marijuana does not have the same effect on a persons body as alcohol does.  Figuring out a persons alcohol level is pretty simple math.  You take into consideration their body weight, alcohol consumed, over what duration, food, etc.  But with marijuana none of that really factors into what a THC level would be.  Marijuana may have different levels of potency, it may affect a person differently based on their regular usage. There are many factors that are not known.

The other issue this article discusses is what happens when the THC level is below the legal limit.  As a Seattle DUI Lawyer, I see this every day when it comes to alcohol.  I can't tell you how many clients I have represented on a DUI that have had alcohol levels below the legal limit of .08.  In fact in my experience most people are shocked to think you can be arrested for DUI below the legal limit, let alone charged with a DUI for it.  But it is true, and it happens all the time.

Well the same thing is going to happen with marijuana DUI's in Washington state.  In fact the article mentions a case in King County Superior Court where an individual was charged and convicted of vehicular homicide with a THC level of 1.6 nanograms, which is significantly less than the current legal limit of 5 nanograms.  Now that person is in prison serving a 16 year sentence.  

So the moral of the story is many people are going to want to try marijuana now that it is legal.  Maybe try a joint, or smoke a bowl in a social setting.  Much like alcohol is consumed.  But what you may not know is you can be charged with a marijuana DUI that is below the legal limit.  And there is no way to really know what you marijuana level is, unlike alcohol where you can make an educated guess.  

CLICK HERE to see the link to the article.   

Matthew A. Leyba is a Seattle DUI Lawyer in Washington state.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

Thursday, December 20, 2012

When to use a Knapstad motion and when not to

Every criminal defense attorney out there knows about filing a motion to dismiss a case, or filing a motion to suppress evidence.  Typically these types of motions really wont tip off the Prosecution about what the defense theory of the case is.  Meaning if you file a motion to suppress drugs for example because of an unlawful search and seizure.  If you lose that motion you're not going to turn around and argue to the jury they need to find your client not guilty because the police officer didn't have a sufficient basis to search your client. 

But in criminal defense practice in Washington state, there is another kind of dispositive motion that can be filed that is not one of the constitutional motions discussed above.  It is called a Knapstad motion.  This motion for the most part is not usually granted.  But it can be filed when the defense attorney feels that based on the facts in the report, there is insufficient evidence to meet one of the elements.  

For example lets say a client is charged with Negligent Driving First Degree in Seattle.  But the reason the officer pulled the client over was because he was speeding.  There were no other vehicles present.  There was not chance of getting into an accident with another driver, vehicle, or property.  They were simply arrested for Negligent Driving 1 because their alcohol level was less than the legal limit.  Well one way to try and get this charge dismissed is to argue there is insufficient evidence to establish the elements of the crime.  Meaning the Prosecution cannot prove the driver was likely to endanger persons or property.  

Lots of criminal defense attorneys in Seattle dont like to file these types of motions for a couple of reasons.  First they are typically not granted, because all the Prosecution has to do is say the facts are in dispute, and we anticipate at trial the facts will establish one of the elements the Defense is arguing we cant meet.  The other reason is because if the defense loses the motion they effectively have tipped off the Prosecution on what their theory of the case is.  So in the Negligent Driving First Degree example the Defense would argue at trial there is no evidence to provide beyond a reasonable doubt the defendant was likely to endanger any persons or property because no observations were made to indicate that.  

Sometimes my practice as a DUI lawyer in Seattle, I like to lay in the weeds when one of these issues arise.  Meaning I wont file a Knapstad but instead lay in the weeds at trial and then make a halftime motion to dismiss.  Effectively arguing the same thing as a Knapstad motion.  

A few weeks ago I did this very thing, and it worked out perfectly for a client of mine.  I represented a client charged with Prostitution Loitering in Seattle.  Meaning he was accused of soliciting a prostitute.  However based on my investigation of the case I felt there was no intentional solicitation on his part.  He never discussed a sex act, no money exchanged hands.  Really the only evidence against him was he was talking to an undercover officer posing as a prostitute, and he was in an area of high prostitution.  

I thought about filing a Knapstad motion at first.  And argue to a Judge pretrial there was insufficient evidence to convict him because there was no evidence of solicitation.  But I felt it would be best to not tip off the Prosecution about this defense and proceed to a jury trial.  Well as I suspected the Prosecution didn't have much of a case.  After I cross examined their witnesses there was no evidence of solicitation on the part of my client.  I established no sex acts were discussed.  No money changed hands.  My client didn't repeatedly drive around trying to beckon any prostitutes.  There was no cash found on him, condoms, or any other circumstantial evidence that could establish he was there doing what the Prosecution was.  

So after the Prosecutor rested, I asked the Judge for a side bar.  Explained to the Judge that I would like to make a motion outside the presence of the Jury.  The Jury was excused, and I proceeded to make a halftime motion.  I argued that the Prosecution couldn't establish a prima facie case against my client.  Even if the evidence was viewed in the light most favorable to the Prosecution there was no evidence of intentional solicitation.  Which is one of the things that needs to be proven in this type of a prostitution case.  The Prosecution wasn't prepared for this, and it caught them totally by surprise.  

Ultimately the Judge agreed with me and dismissed the case.  My client walked away a free man.  Had I filed a motion earlier to dismiss based on this issue.  I don't think it would have been as successful.  But because I laid in the weeds.  Didn't tip off the Prosecution on what my defense was.  Then after they rested their case, I made my motion.  And as you can see it worked out perfectly.  So the moral of the story is.  Sometimes you need to lay in the weeds as a defense attorney in Seattle, then pounce when the time is right. 

Matthew A. Leyba is a DUI Attorney in Seattle.  His practice focuses on representing those accused of DUI and other serious traffic offenses.

Friday, November 30, 2012

Des Moines couple sue Police for shooting family dog

I know, I know this is supposed to be a DUI blog.  However I read this article earlier from the Seattle Times and have kind of been a little obsessed about it lately.  I have googled all the articles involving this incident, read the federal lawsuit, watched the videos from the Des Moines PD, and been following any social media that mentions this incident.

In case you're not familiar with this.  Basically what happened is a family was out of town.  Their Newfoundland Dog was left home in their fenced back yard.  The American Kennel Club describes Newfoundlands as having a sweet disposition and the perfect family dog.  Although they were bred to be a workhorse and they are a large breed that needs daily exercise, they are the perfect companion dog and are not ill tempered.

So while the family is gone the Des Moines Police Department gets a call that a dog is running loose in the neighborhood.  It was a Sunday so Animal Control was not working, so these thugs with a badge showed up.  According to witnesses and the 911 callers the call was made because the dog was running around, and the neighbors were concerned for its safety.  Not because it was acting violent or anything.

When the police showed up the dog was in the family's driveway barking.  From the video you can hear snide remarks from the Police.  They are saying, "he doesn't want me to get close," and within 10 minutes of arrival they are actually discussing with one another whether they should "just shoot the dog."

According to witnesses what happens next will shock all animal lovers, especially dog lovers.  The police in their enlightened wisdom decided to try and use a Taser to subdue the dog, Rosie.  To no surprise this was ineffective and sent the dog running away.  I'm sure frightened and scared out of her mind.  The Officers can be heard on the video laughing and saying, "oh he doesn't want to play."  Then a few minutes later one of these idiot cops says, "I'll shoot him, lets go shoot him."

Meanwhile another Officer got close to Rosie to use a Taser a second time.  Of course to no avail and the dog eventually found her way into the back yard of Lora Perry.  According to Ms. Perry, Rosie had slipped into her back yard and was just sniffing around back there.  Not doing anything else, certainly not threatening or violent.  In fact Ms. Perry has said the dog wasn't doing anything and just could have stayed back there.

When the Police arrived and asked Ms. Perry if the dog was back there, she replied yes, and they told her to get in the house. An Officer then arrived with a high powered rifle and just walked into the back yard, past the No Trespassing sign.  The first shot shattered Rosie's leg, an autopsy later revealed.  On the video you can hear one of these idiots shout, "Nice."  Three more shots were fired and Rosie was killed on the backyard of Perry family.

Now the kicker is the Wright family, owners of the dog arrived home later that day.  They couldn't find their beloved pet and frantically starting calling friends, and neighbors.  Imagine this the Des Moines Police Department didn't even have the decency to contact the family of the dog they just murdered.  It wasn't until the family found the Taser darts in the driveway the Police were contacted.  Eventually they informed the family of what they did, offered some bullshit reason on why, and left it at that.

I couldn't imagine what the family of this dog must have been feeling when they found out what happened.  Probably denial, anger, frustration.  All of the above.  Even though I'm a DUI Lawyer in Seattle, and not a civil rights lawyer something like this still pulls my heart strings.  You see I'm a dog lover.  I have been raised with dogs my entire life, my family now has a small Shi Tzu dog named Meso that we cherish.

I couldn't imagine anything ever happening to him, let alone imagine him being killed by the Police Department.  The dog lover in me would want to make whoever did this pay.  But the lawyer in me what want to sue the Des Moines Police Department and show everyone what kind of police officers they employ.  Nothing can bring back this family pet, but I hope the Des Moines PD have to seriously end up paying big time for their horrific and stupid actions.

Matthew A. Leyba is a DUI lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.

Friday, November 16, 2012

Why I charge a trial fee

As everyone should know by now I'm a DUI Lawyer in Seattle, WA.  A big part of practice is litigating jury trials.  In fact in my career I have litigated over 100 jury trials to verdict which is a fair amount for someone my age.  There are two reasons why I have done so many.  First in a DUI case if the Prosecutor is not willing to offer a deal and they just want a client to plead guilty as charged.  Well we know what will already happen if the client is found guilty, so they have nothing to lose if they go to trial because 99% of the time they will get the exact sentence the Prosecutor wanted in the first place.  The second reason is because I actually enjoy trial work.  A big part of my job is driving to different courts, sitting in court for hours waiting for a case to be called, negotiating with Prosecutors, and doing DOL hearings.  In all honestly that is pretty mind numbing work, so litigating a jury trial is a welcome break, and it is kind of fun.  

So when I first opened my practice I used to charge a flat fee on a DUI case because I didn't want to discourage my clients from going to trial.  In other words my fee covered every step of the legal process except for appeals.  I'm not an appellate attorney, and that style of law does not appeal to me (no pun intended).  So my fee would cover the arraignment, pretrial hearings, negotiating with the Prosecutor, motion hearings, and the jury or bench trial.

After two years I stopped charging a flat fee for everything, and I started to charge a fee for everything up to the point of a jury trial.  Then if the case were to go that far I would charge an additional "trial fee" for the litigation of the jury trial.

The reason I bring this up is because lately I have read a few blogs by some other DUI Lawyers that imply this particular fee structure is a bad thing.  And the Seattle DUI Lawyers that do this do not want to litigate a jury trial and by charging an extra fee that are effectively holding their client hostage, and if the client cannot pay then they would be forced to plead guilty.  These blogs then go on to say that a flat fee is the way to go because the client will not be forced to decide whether to pay more for exercising a constitutional right they have.

To be honest I used to feel that way.  When I first opening my practice I didn't want my clients thinking this exact same way.  I didn't want them to feel like they had to choose between paying me more or pleading guilty.  But like I said after two years I stopped doing this.  Why do you ask?

Well it is pretty simple.  I found that I was constantly refunding my clients money.  There were times where I would charge a flat fee, but then I would only go to court 2-3 times.  I would be able to negotiate a deal with the Prosecutor that my client was happy with and I didn't spend a lot of time on the case.  In those situations I didn't feel comfortable taking all the money the client paid me, so I would refund them a few thousand dollars.  I didn't think it was fair to charge them the same amount as a client that I spent 80 hours, litigated a trial through verdict, and went to court two dozen times on their behalf.

You can imagine not only the confusion but the issues this created.  Constantly trying to figure out what would be fair and then cut my client a check based on that.  So I decided that I would charge less in those cases that didn't go to trial, and charge a little more if they went.

I'm sure there are many DUI Attorneys out there that probably tell potential clients that myself and other attorneys that do this are ripping them off, afraid to go to trial, or just want the client to plead guilty and then move on.  This couldn't be further from the truth.  In fact I would venture to say that any attorney that says that probably doesn't have the trial experience I do, so it is kind of ironic they would say such a thing when my entire practice is devoted 100% to litigation and I think my track record of jury trials speak for itself.

In addition to that my fee has not risen from what I originally charged.  I simply took the original flat fee and subtracted the trial fee.  Now when I enter into a fee agreement there are two fees.  The first is the flat fee for representation on the criminal matter up to the point of a jury trial.  The second is the trial fee that is only collected if a jury trial is litigated.  If say for example the case is set for trial, and then the Prosecutor offers a plea deal at the last minute then no trial fee will be collected.

All of my fees are always completely spelled out in the fee agreement.  I would never try and deceive a client or nickel and dime them for money.  Every potential client that I speak with about proposed fees I tell them about the trial fee and the reasons for it.  And I'm willing to bet my fee including a trial fee is the same as those DUI Attorneys that are putting down the use of a trial fee.

So my question is why should a client who only has to go to court 2 or 3 times before getting offered a plea deal they are happy with be charged the same as a client that goes to court 2 dozen times and has to sit through a 3 day DUI jury trial.  If you have any thoughts feel free to leave a comment.  Remember I'm not bagging on this type of fee structure, I used to structure my contracts like that.  But I found for my practice the additional trial fee works best, and I have never had a client say otherwise or express any issues with it.

Matthew Leyba is a DUI lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI in the Seattle area, or Western WA contact our offices for a free 60 minute consultation.  

Wednesday, November 7, 2012

Happenings in Court

A few weeks back I was in a local municipal court.  It is a Court that is known to have tough negotiating prosecutors, especially as of late for some reasons.  It also has a pretty interesting negotiating system.  Although you can negotiate prior to your court date by finding out who the Prosecutor assigned to the case is.  I would say that many attorneys choose not to do this, and instead negotiate the day of court.  So often times when you're in line to speak with the Prosecutors, you will over hear a discussion between a prosecutor and a DUI attorney.

So as I said before I was in court waiting to chat with the Prosecutor about a continuance request.  I happened to be right behind another attorney who was trying to negotiate with the Prosecutor.  And from what I gather they had spoken before, so the defense attorney had made their pitch to the prosecutor.  But I found it interesting nonetheless, especially the prosecutors response.

I guess the client of the other defense attorney was charged with a DUI.  This client was some kind of ship captain.  I'm not sure what exactly his job was, or who the employer was, but he was a shipping captain.  For those that don't know an individual charged with a DUI who has such a profession can face very severe consequences including but not limited to a loss of their job.  This particular defense attorney obviously was well aware of this.

From what I gather this was a pretty run of the mill DUI.  It was a relative low BAC at .13, there was no accident, the client was cooperative with the arresting officers, and he didn't have any prior criminal history.  What the defense attorney was proposing was an amendment down to reckless endangerment, and the kicker was the client was willing to do 90 days in jail.  Let me repeat that.  90 days in jail.

To me this seemed more than reasonable.  In fact it was astonishing.  How many people would be willing to go to jail for 90 days on a first offense DUI.  Heck even if the guy went to trial and was convicted he would only get 1 day.  In addition to that he was willing to do the ignition interlock requirement of 1 year, he was willing to pay the fine that comes with the DUI.  He basically was willing to do all the penalties and consequences that come with a DUI,  He just could not have a DUI on his record.

So what was the Prosecutors response.  No, we want the DUI conviction on the record.  And their sentence recommendation was for a mandatory minimum sentence of 1 day in jail.  I'm sorry when I heard this response on was completely floored.  There was a perfect example of why prosecutors just don't get it.  Especially at the misdemeanor level where often times this is their first job and they generally are younger with little to no life experience.  Rather than give the guy a break on the conviction, and have him do 90 days for a first offense DUI as a penalty.  In my opinion they would rather be spiteful and ruin this man's life.  As a Seattle DUI Attorney I just do not understand this line of thinking.

I just figure if I was a prosecutor and some defense attorney came to me for negotiation.  I would be probably pretty fair but stern.  In exchange for plea deal reductions I would negotiate jail or a significant amount of community service hours, or a hefty fine on a first offense.  Give the person the benefit of the doubt without screwing up their entire life.  Then if they came back on another charge they you can put the hammer down.

But far too often as a Seattle DUI Lawyer, the majority of prosecutors I see do not do this.  It really is a shame because it bogs down the judicial system with needless trials, but at the same time ruins peoples lives that don't need to be ruined.  Everyone makes a mistake.  If it is not too serious, there was no accident, not a high breath test, and the person was polite and cooperative with the arresting officer then why not.  I really feel bad for this particular guy, because he really was taking responsibility for his actions and was trying to be accountable.  It's a shame he will most likely lose his job, and ruin his life because of the decision of this prosecutor.

Matthew A. Leyba is a Seattle DUI Attorney in Western WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI contact our office for a free consultation.  

Monday, October 22, 2012

How do you get a copy of your DUI arrest police report

Im a DUI Attorney in Seattle lately I have been getting calls from people asking how they can get their DUI arrest report.  Some of these individuals are not happy with their current DUI Attorneys and they are shopping for a new one.  Some of these people were recently arrested and want to get a copy of the police report and see what the arresting officer is saying.  Others just want a copy for some random reason.

Basically if you have been arrested for a DUI in Seattle then there are three possible ways to get your DUI arrest report.

The first is to make a public disclosure request to the arresting agency.  Now depending on the arresting agency you may or may not be able to get this.  If you were arrested by the Seattle Police Department and your DUI charge has already been filed, then you will get a response from the SPD saying you are the subject of an ongoing investigation by the City of Seattle Attorneys office and they cannot disclose any materials and to contact the City Attorney.  But if you were arrested by the Washington State Patrol for example then you can contact them through a public disclosure request and they will get you a copy of your police report usually within a month.

The second way to get a copy of your police report is to represent yourself at your DUI arraignment.  This is not the smartest thing to do, but everyone has this right.  If you have an attorney they cannot disclose to you the police report under the local court rules.  If you look at Criminal Rule 4.7 it states the materials received from the Prosecutor are to remain in the exclusive custody of the defense attorney.  This means the defense attorney cannot give the client a copy of the police report. 

The other way to get a copy of the police report after a Seattle DUI arrest is to request an administrative hearing from DOL to challenge the drivers license suspension.  When you're filling out this form you can include your name or your attorneys name.  If you include your name than the DOL will send you a copy of the police report.  If you include your attorneys name, DOL will send your DUI lawyer a copy of the police report.  Your lawyer can then turn around and give that to you, since it is not subject to Criminal Rule 4.7 we discussed above.

Matthew Leyba is a DUI Lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for DUI feel free to contact our office for a free 60 minute consultation.  

Saturday, October 20, 2012

Happenings in Court

So this last Thursday afternoon I was in a local court representing a client on a Seattle Municipal Court DUI.  We had a 3.6 hearing or for those not in the know.  This is a motion to suppress evidence.  In this case it was a motion to suppress the results of the breath test.

Anyway this case had been previously set for a motion hearing, but the police officer had called in sick.  So we appeared this Thursday, all prepared to go.  And the Prosecutor walks in and tells us the police officer just called in sick again.  Well to say this was frustrating for my client and myself is putting it delicately.  I was pretty pissed.  Not because the Prosecutor just informed us as was walking into court. But I was pretty upset at this certain police officer.

You see I have had three jury trials with this particular officer.  During the life of each of these cases, at least one time the police officer has called in sick for an important hearing.  In fact the last case I had with this police officer was a Seattle DUI charge.  With that case this police officer called in sick two times for the DOL hearing.  He then called in sick two times for the motion hearing to suppress evidence.  That is a total of 4 times this officer called in sick for an important part of the case.  And like my current client, my former client had to miss work each time to appear at these hearings.  And all four times the hearings were continued to another date.  So that is four times my client missed work for nothing.  All because of this certain police officer.

So to get back to the current case I have, my client turned to me and said, "what if I missed court, would the Judge just continue the case like they do for the police officer."  And honestly the Judge wouldn't.  Maybe the first time, but certainly not more than that.  Especially if I just showed up and informed the Prosecutor 5 minutes before the hearing.  I can tell you exactly what would happen.  The Prosecutor would object, ask for a warrant, and the Judge was grant that request.

As a Seattle DUI lawyer this is a frustrating part of the process.  Especially when certain officers seem to have knack for calling in sick 5 minutes for a hearing.  Either these officers don't care about following up and justifying their DUI arrests and are lazy, or they genuinely are sick all the time.  I tend to think its the former.  But I guess that is just the cynic in me.

Matthew A. Leyba is a Seattle DUI Lawyer in Western WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI contact our office for a free, no hassle 60 minute consultation.

Friday, October 12, 2012

DUI limit really more of a guideline for state troopers in Washington State

I came across this article earlier this week from MyNorthwest news.  The author follows a State Trooper who is a member of the target zero task force on a ride along.  The Trooper arrests an individual in Ballard, Seattle for DUI.  It talks about what happened, what the law is, blah, blah, blah.  Pretty standard article dealing with this subject matter.  But as I was reading this article I was struck by this statement the Trooper made regarding his philosophy on arresting individuals for DUI in Seattle.

Trooper Brock, the arresting officer states, "I [couldn't] care less about what they blow; if they're below the legal limit, at the legal limit or five times the legal limit," said Trooper Brock, who is member of the Washington State Patrol's Target Zero Team. Their goal is to reduce deaths on the roadway.  I don't worry about what's going to happen six months or a year down the road in court," he said. "I know when I go home every single shift that if I took someone off the road, I'm 100 percent positive they were not supposed to be driving a car."

So there it is.  If you smell like alcohol, you will get arrested.  Regardless if you consumed 20 shots of tequila (which would be very impressive) or whether you had half a glass of wine.  Troopers around this State don't care what your legal limit is.  This is something that I have written before on my blog, but it's worth noting again.  If you have had 1 drink you will get arrested.  The police do not care about the legal limit and whether you're over it.

I can't tell you how many people I have met with that simply just don't understand how they can be arrested for a DUI when their breath or blood test is below the legal limit.  Heck I have represented a client before on a Seattle DUI arrest with a .03 breath test.  Based on this particular Trooper's statement law enforcement simply do not care what your alcohol level is.   

Now why is this important to note.  How many times do I meet with people who say, "well I only had 1 drink, I thought I was ok to drive.  I thought I would pass all the field sobriety tests."  What this article reveals is you can pass all the field sobriety tests.  You can honestly tell the arresting officer you only had 1 drink.  But you will still get arrested.  You will still get taken to the police statement.  You might be booked into custody and spend the night in jail.  You will still have to shell out at least $5K for an attorney.  You will have to go to court and be subject to the humiliation and embarrassment of being a defendant in a criminal case.  And the kicker is even if your DUI were to get dismissed, you still go through all this.  

Anyway.  Here is a link to the article if you're interested.

Matthew A. Leyba is a DUI Attorney in Seattle, WA.  He is the owner of Leyba Defense PLLC, a boutique Criminal DUI Defense Firm in downtown Seattle.  If you have been arrested for a DUI in Washington State contact our office for a free consultation.   

Wednesday, October 10, 2012

Happenings in Court (New series)

I'll be starting a new series for my DUI blog.  It is titled "Happenings in Court."  As everyone should know Im a Seattle DUI lawyer.  That means I spend most of my days sitting in court endlessly waiting for my cases to be called.  In other words I just sit there and get to people watch.  Well some pretty interesting things happen every day in court.  Whether it is some defendant, or whether the Judge does some odd, or whether it the Attorneys involved.  Something is always going on, and I figure this will be a pretty interesting series to start, and should give everyone an insight into what happens in Courts throughout Western WA.

So today I was in court this morning in local district court.  I was waiting for my case to be called and I was sitting down for about 2 hours.  While waiting some Defense Attorney walked in.  I have never seen him before, so he probably doesnt do a lot of DUI work, or maybe he practices in other counties.  But nevertheless he came into court.

If you have never been to a district court, typically the Prosecutors are there handling all the cases for the calendar.  That means they probably have around 50 cases, sometimes more they are reasonable for.  Usually in this particular court there is only one Prosecutor.

Now its always best practice to try and contact the Prosecutor before the calendar.  Especially if you want to negotiate with them, pointing out evidentiary issues, having a lengthy conversation, etc.  So to get back to this hospital.  This defense attorney walks in.  He instantly looks upset because there are 4 other attorneys in front of him waiting to talk with the Prosecutor.  This defense attorney is making "tiff" sounds every time one of the Defense Attorneys tries talking with the Prosecutor.  Almost like this line is moving too slowly for him.

This whole time Im just sitting down observing this.  I can tell this Defense Attorney is kind of a DB, so I continue to watch.  He gets up to the Prosecutor and starts gruffly talking with him about his case.  Apparently he is representing someone on a driving while license suspended charge.  From what I gather he is saying the fact the license was suspended was a mistake by DOL.  He has brought all these documents and he is trying to point to the Prosecutor why this charge is incorrect.  While he is doing this he is raising his voice, and becoming more and more frustrated with the Prosecutor.

Then I hear him tell the Prosecutor this case should be dismissed, and blah blah.  The Prosecutor is looking at him and saying, "hey I cant look at all these documents right now."  Clearly this is something that should have been presented to the Prosecutor before court, if nothing else to give them time to review it.  Then the Defense Attorney starts getting more upset and kept saying this was a mistake and needs to get dismissed.  Finally I guess the defense Attorney realized he was getting nowhere, and just yells "Well we will just continue this," and he stormed off.

While I was watching this thing unfold I kept thinking to myself, doesnt this defense attorney realize that the Prosecutor is the one with all the power in this situation.  They hold all the cards, and its not going to do your client any good to piss them off.  Especially when you're asking them to dismiss a case.

Obviously this attorney doesnt get that and his client will probably get screwed because of it.  Had the defense attorney taken a different approach then he probably could have got the deal he was asking for.  But because he was a jerk, who knows what will happen now.  Throughout my career there have certainly been times when I have been frustrated by a Prosecutor.  But you can't take out those frustrations on the Prosecutor, its bad for business.  Especially when they hold all the cards.  As my mother always said, "treat people like you would want to be treated."

Matthew A. Leyba is the owner of a criminal defense DUI firm in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for DUI contact our offices for a free consultation.

Tuesday, October 9, 2012

Sandusky still defiant!

Today Sandusky was sentenced to the 45 or so counts of child molestation and other unthinkable, and horrific acts he engaged in.  Essentially the Judge gave him a life sentence, although it was at the low end of the sentencing range of 30 years.  I think Sandusky is 65 years old right now, so basically he will spend the rest of his life behind bars like he deserves.

I was watching the news channel this morning as I was getting ready for work.  Apparently Sandusky made some statements from jail the night before.  Im not going to get into the statements because he obviously is a sick individual who has major, major problems.  And I don't want to waste any of my thoughts and time rewriting what this loser said.

Some of you may wonder why I'm bringing this up since this is a blog by a Seattle DUI Lawyer.  Basically as I was hearing some of the things coming out of Sandusky's mouth and the defiance he still showed despite being convicted by a jury of his peers.  I got to thinking to myself.  This guy must be an idiot.  Lets forget that he is guilty as sin, and all the evidence against him was insurmountable and damning.  This creep is going into his sentencing hearing tomorrow.  And rather than show remorse.  Rather than accepting responsibility.  Rather than apologize to the countless individuals, who's lives were forever ruined by this guy.  He is still spouting off about how this is a conspiracy, and he didnt do these things.

I just thought it was amazing that he would be saying these things.  Especially considering the Judge could do whatever he wanted to Sandusky.  Simply an idiot.  But I guess that is why he is going to prison forever, and hopefully he gets what he deserves down there.  It would be fitting if he was assigned to general population.

Anyway I digress.  The point of this blog is to address DUI issues.  So if you have ever been arrested for a DUI and you're facing a sentencing hearing.  Whether that is after a jury trial conviction, or a guilty plea.  Some words of advice from a Seattle DUI lawyer.  Don't do what that idiot Sandusky did.  Now I realize these are two completely different offenses, and situations.  But if you're in front of a Judge on a DUI sentencing.  If you don't feel remorse, if you don't feel like telling the Judge you screwed up and you learned your lesson.  Then don't say anything at all.  Otherwise the Judge is just going to hammer you, and on a first offense DUI that is something you dont want to deal with.

Anyway I apologize for going off topic today with the Sandusky mess.  But it just amazed me this guy is that clueless.

Matthew A. Leyba is a Seattle DUI Attorney in Western Washington.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI contact our office to set up a free consultation.

Tuesday, October 2, 2012

New DOL administrative hearing fee increase for Washington State DUI Arrest

If you have been arrested for a DUI in Washington State then you face two separate legal actions.  One obviously is with the Court system.  The other legal action is with the Washington State Department of licensing.  As of 10/1/12 the fee to deal with this second legal action increased from $200 to a whopping $375.

As a Seattle DUI Attorney it is my opinion to always send in the hearing request fee and challenge the DOL administrative license revocation.  Not only is it a great source of investigation for the criminal case.  You can question the arresting officer, and try out legal arguments with DOL that may be used in the criminal case.  But with the new increased fee many people may not be willing to shell out almost $400 to challenge this license suspension.  Especially when statewide there is around a 20% dismissal rate on these DOL administrative hearings (although Leyba Defense is much much higher).

My opinion is this increase is due solely to budget issues, and DOL trying to get an increase in operating revenue, as opposed to trying to screw over those involved in a Seattle DUI arrest.  As far as whether or not to send in the DOL hearing request form, still do it.

As I stated before Im a Seattle DUI Attorney.  This is what I do for a living.  The DOL hearing is a great way to investigate the case.  You can subpoena the arresting officer.   Everything they say at the hearing is recorded.  Thus if they get caught in a lie or say something that is inconsistent with what they wrote in the police report then boom you have it later to impeach their credibility.  In addition its a great tool to use for negotiation.  If you can prevail at the DOL hearing on a legal issue.  Even though that outcome is unrelated to the criminal case.  You can still provide that written ruling to the Prosecutor in an effort to negotiate and point out an administrative hearing Judge who applies the same law and facts as the criminal Judge would dismissed the legal action.

Bottom line.  This new fee may discourage some people.  But in my opinion, still send it in.  Especially if you want to help yourself in your criminal DUI case.

Matthew A. Leyba is a Seattle DUI Attorney in downtown Seattle.  His practice focuses exclusively on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI call our offices for a free 60 minute consultation.

Tuesday, September 25, 2012

Seattle DUI arrest after Packers football game

Last night was a big day for the City of Seattle.  The "Clink" hosted the Monday night football game between the Seattle Seahawks and the Greenbay Packers.  Every time there is a big event like this.  Whether it is a big football game involving either the Huskies or the Seahawks there will be increased DUI Patrols in downtown Seattle as well as the main freeways including I-90, I-5, and SR520.

If you were arrested last night it is important to contact a Seattle DUI Lawyer ASAP to first ensure your constitutional rights are protected, but to also discuss your options and what may likely happen to you.  Like all professions there are bad ones and good ones out there.  Here are a couple of things to look for when deciding who to NOT contact.  Any attorney who sends you a solicitation in the mail is probably not the right fit for you.  Any attorney who doesn't practice exclusively in the area of Seattle DUI Defense is probably not going to help you much.  And lastly any attorney who hasn't litigated more than 25 DUI trials in the career tells you all the do is plead people guilty and not fight on behalf of their clients.

The best bet to look for his a referral from family, friends, or other attorneys.  Usually an attorney that is recommended from someone else shows that attorney did good work, and was able to get the kind of result where someone would say "hey hire this guy he got my Seattle DUI Dismissed."  Likewise if an attorney recommends another attorney, that is a good sign of quality work.

If you were arrested for a DUI last night in Seattle after the Packers game you might have an arraignment in the next day or so.  Try not to stress out about this, and call a DUI lawyer.  They will be able to help calm your fears, but more importantly discuss all your options and likely outcomes in your case.

Matthew A. Leyba is a Seattle DUI Lawyer.  His practice focuses exclusively on DUI defense in Western WA.

Thursday, September 20, 2012

New Thermal Imaging System Could Help Detect Drunk People

I recently ran across an article that discusses a new use for old technology when it comes to alcohol, people, and DUI arrests.  In a paper that was published by Greek scientists it may be possible in the near future where thermal imaging may be able to detect individuals have has consumed alcohol.

How does this work you ask?  Well pretty interesting.  Apparently these scientists are in the process of developing new algorithms that will gather date about the blood vessels in an individuals face.  You see when a person consumes alcohol often times their face will become flushed, or rosy, or even red faced.  The reason this occurs is because the blood vessels in their face are becoming dilated due to the increased alcohol intake through the blood.

What these scientists hope to do is capitalize on these increased blood vessels because this will cause the individuals face to increase in temperature.  And thus thermal imaging can detect that increased temperature that is different or higher than the body temperature.

This paper then goes on the describe how this process can be used by police departments.  It is silent on exactly what would the police use this for.  But as a Seattle DUI Attorney I can only imagine the problems with this.  Imaging going to a bar or restaurant.  Having a single drink or perhaps even two.  Keeping mind it is not illegal to consume alcohol and drive.  It is only illegal if your ability to drive is lessened in any appreciable degree or if you are over the legal limit.  Then imagine police positioned on street corners shooting these thermal imaging guns at individuals.  Seeing the increased temperature in their face.  Assuming they are drunk and then pulling people over to investigate for DUI and other alcohol related offenses.

I dont think I need to harp on the potential 4th amendment violations that would occur from these.  Here in Washington state, the 4th amendment is afforded greater protections than the federal constitution.  So I doubt this would ever occur here, since we don't even allow checkpoint stops by the police.  But it is scary to think this type of technology can be used.  Again as a Seattle DUI Attorney, I hope it doesn't come to this.  We have enough issues with unlawful 4th amendment seizures due to overzealous police investigations.

Matthew A. Leyba is a Seattle DUI Attorney in Western WA.  His practice focuses exclusively on representing those accused of DUI and other serious traffic offenses.  

Friday, September 14, 2012

The importance of hiring a DUI Attorney when charged with a DUI

This may seem pretty self explanatory.  If you're charged with a DUI, then you want to hire an attorney that specifically and exclusively practices DUI defense.  I mean if you needed open heart surgery you wouldn't go to a general practitioner would you?  The same thinking applies here.

The reason I bring this up is because I have met 2 clients or potential clients I guess looking for representation on a DUI case.  When I met with them, both of these individuals were completely misinformed about DUI laws, and specifically what their options are.  As a Seattle DUI lawyer I practice exclusively in the area of DUI defense, so it is pretty easy for me to explain what your options are, Im up to date on the recent law changes, and Im familiar with individual courts, and prosecutors and I can probably give you a reasonable idea of what may happen with you case.  If you're not a DUI lawyer than you probably cant do that.  Just like I cant tell you would the recent laws are on environmental litigation.

Now going back to these two individuals.  One person met with a family law attorney.  This was a first offense, the individual was under 21.  The family law attorney told the client about a deferred prosecution, told them that is what they should do, and then completely misinformed them about how to do it.  If you know me, or read this blog at all you will know that I rarely recommend a deferred prosecution, but especially in this circumstance.  As a general rule you never have someone do a deferred on a first offense, but you never do one when you're that young.  You only get one per lifetime, you have to be found to be alcohol or drug dependence, and you have to agree to complete a 2 year alcohol and drug treatment program and be monitored by probation for 5 years.

The other individual I met with had previously met with a general practitioner attorney.  Someone that does a little bit of everything I guess.  In this case the client had actually blown under the legal limit, so there would be no need for a DOL hearing.  However this attorney told them they had to have a DOL hearing, and tried telling the client it would be easy to win because they were under the legal limit.  Im not sure if this was some kind of scam to overcharge the client, or if the attorney honestly thought a DOL hearing was necessary.  But again, this was completely wrong advice.  Nothing bad would have happened had the client paid the $200 and sent in the hearing request form, but if this attorney makes mistakes on something so simple, imagine what would happen when more complicated issues arose.

Now Im not trying to bag on these attorneys.  These most likely were honest mistakes.  I mean if someone came to me wanted me to draft a will, or sue some major corporation I wouldnt try it.  To be honest I would screw something like that up.  Even though Im a lawyer and I went to law school, I just dont know anything about these areas of the law.  My philosophy on a lawyer practicing in every area of the law is that is just not feasible.  There is no way that a lawyer can know everything about every area and facet of the law to be competent.  It is simply impossible.  This is why doctors commonly refer patients to specialists or other physicians in certain areas of medicine.  Nobody knows everything, and the same things applies in Seattle DUI Defense.

Matthew Leyba is a Seattle DUI lawyer in Western WA.  His practice focuses exclusively on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI contact our office for a free no hassle 1 hour consultation.

Wednesday, September 5, 2012

WWLD......What would legal minds do?

Instead of "what would Jesus do," how about "what would legal minds do."  I find it interesting that individuals that get arrested for a DUI here in Washington State that have a background in the legal system.  Whether it is a law enforcement officer, or whether it is a Judge.  What do they all have in common.  When they are being investigated for a DUI they decline to answer any questions.  They decline the field sobriety tests.  And in some cases they decline the breath test at the station.

Why is that?  They must know something the rest of society doesn't.  Perhaps it can be that the field sobriety tests are junk science only designed for a person to fail.  Or perhaps it can be that the breath test at the police station is a piece of junk and that is neither accurate nor reliable, despite what the Prosecutors and the Washington State Patrol Toxicology Lab say.

Now Im not here to violate these individuals privacy, even thou their arrest is public record.  Im not trying to embarrass anyone, or poke fun at their mistakes.  Obviously they are human, just like the people they arrest, and the people they preside over.  But what I want to point out is what a knowledgable individual does when they are being investigated for a DUI.  As you may know Im a Seattle DUI lawyer.  Many of my blogs here say the same thing over and over.  Decline the field sobriety tests, don't answer any questions without talking with a lawyer, and don't take the breath test without asking for a lawyer.

But sometimes I get the feeling people aren't listening because Im a DUI lawyer and somehow I have a dog in the fight.  This is why I bring up the Sargent with the Seattle Police Department who was arrested, and the Judge who was recently arrested.  Obviously they are familiar with the legal system, and in particular DUI cases.  They declined, and if that doesn't tell you how flawed everything is in a DUI investigation, I don't know what else will.  

Matthew A. Leyba is a Seattle DUI lawyer located in downtown Seattle.  His practice focuses exclusively on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI feel free to contact our office for a free 60 minute consultation that is completely confidential.

Monday, September 3, 2012

Football season is here....Increased DUI arrests

As a Seattle DUI Attorney I represent people who have been arrested and then subsequently charged with a DUI offense here in Seattle or Western Washington.  In my opinion a bulk of the cases I represent come through my office starting when Football seasons begins, and ends after the New Years.

Why is this you might ask?  Well here in Seattle we have two major sports teams that compete in Football.  We have the University of Washington and the Seattle Seahawks.  Typically I see more people arrested after Seahawks games just because alcohol is served there.  But this year the University of Washington is upgrading and doing a major remodel with Husky Stadium, or whatever it is going to be called now.  So what does this mean.  All Husky games are going to be played at Century Link field, meaning alcohol will be served and it is downtown where all the bars and tailgating will occur.

If you attend a UW game, or a Seahawk game keep in mind increased DUI emphasis patrols will be occurring in downtown Seattle, and along the main corridors of I5, 520, and I90.  These increased patrols will be occurring after the games, or a prior to the games.  People tailgating or pre-funking will be driving to the game, and these will be easy pickens for the Washington State Patrol and the Seattle Police Department.

I know I say this all the time and write it about it pretty extensively.  But please keep in mind these simple rules if you find yourself being investigated for a Seattle DUI.  Remember to decline to do any and all field sobriety tests, ask to speak with a Seattle DUI lawyer prior to answering any questions, and make sure you ask to speak with that attorney prior to agreeing to take a breath or blood test.

Matthew Leyba is a Seattle DUI lawyer located in downtown Seattle.  His practice focuses in representing those accused of DUI and other serious traffic offenses.

Thursday, August 23, 2012

Learn where extra DUI patrols will be in Seattle

Beginning Friday there will be extra DUI patrols in Seattle, and King County as part of the State's "Drive hammered, Get nailed."  As a Seattle DUI Attorney, I think this so called campaign has some merit to it.  Im all for protecting our community, and families.  But at the same time I believe these campaigns or extra patrols are just fronts for excessive 4th amendment violations, and excuses to conduct unlawful stops.

There was an article in the PI this week that provided statistics for last years campaign, including the number of DUI arrests.  I was pretty surprised by the number of DUI arrests last year during this campaign in King County.  Believe it or not the number exceeded 10,000.

The article also went on to say that "Drunks" drive a certain and the police encourage people to call 911 if they suspect a drunken driver.  Now I have previously written my opinion on this idea of overzealous good samaritans calling police and following suspected DUI drivers.

To me this is completely ridiculous the police are encouraging citizens to do this.  Can you imagine being on your cell phone, accidentally cross a lane of traffic, and have some pyscho follow you to your house and try and detain you by conducting a citizens arrest.  And believe me as a Seattle DUI Attorney I have had cases where these crazies have actually done that.

Now don't get me wrong, as I said before Im all for protecting our community, and encouraging people to make better decisions.  But at what costs should this be done.  I for one don't believe I should give up my constitutional right to be free from unlawful seizures just because the WSP is trying to justify their extra hires, and get more money from the government.

Matthew Leyba is a Seattle DUI Lawyer who practices throughout Western Washington.  If you have been falsely arrested for a DUI contact our office immediately to ensure your constitutional rights are protected.  

Tuesday, August 7, 2012

Why it's important to become qualified to administer the FSTs

Representing those accused of DUI is a very complicated process. The competent Seattle DUI Attorney needs to be familiar with constitutional issues, scientific theories, trial techniques, and much much more. However in addition to those basis skills, the experienced Seattle DUI Lawyer should also be qualified and certified to administer the standardized field sobriety testing. In other words they need to take the same course the law enforcement does, and learn the proper procedures for administering the standardized field sobriety testing.  Why is this so important you ask?    

In order to accomplish this the attorney should know how to administer the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. These are the field sobriety tests that have been standardized by the national highway safety administration. In my opinion this is important for several reasons and are well worth their weight in gold compared to the nominal cost and time frame.  

1.  Verify whether the arresting officer administered correctly: In many Seattle DUI arrest cases the arresting officer administers the standardized field sobriety tests to the defendant. And in all of those cases the officer will say they are trained to administer these tests, and they were done according to their training. In order to verify whether these tests were done correctly or not, the Seattle DUI Attorney needs to know who to administer the tests themselves. If they know exactly how to do it, and they took the same course as the arresting officer they will be in a better position to identify any issues with the administration of the tests.         

2.  Help to separate yourself from all the other DUI Attorneys: In every jurisdiction there are attorneys that say they exclusively practice in the area of DUI Defense. And like in all professions there are good ones and there are bad ones.  But what separates the good ones from the pretenders is the level of commitment to this area of law in addition to their experience and knowledge. By taking the time and expense to take this NHTSA course, and learn exactly how to administer the field sobriety tests it will show a level of commitment and experience that will help you get clients.           

3.  Know the instructors and use them as experts: Many of the instructors of these NHTSA courses are former law enforcement. Sometimes in a DUI case it is necessary to hire an expert to counter what the Prosecutions witnesses are saying. Having an ex-law enforcement officer who is also an instructor for the field sobriety testing and really helpful, and comes across very credible in the eyes of a jury. By taking the course, and getting to know the instructors you will be in a better position to ask them to help you out on a case.

Taking this course is extremely important to the practice of DUI defense.  If an attorney doesn't take the time to do this then they don't care about their practice, and in turn don't care about you.  

Matthew Leyba is a Seattle DUI Attorney located in downtown Seattle.  If you have been arrested for a DUI contact our office for a free consultation to learn what your options are, and what to expect during the DUI charge.  

Friday, August 3, 2012

Helpful hints to keep in mind during SeaFair weekend

With the annual seafair weekend upon us there will be an increased emphasis in DUI patrols.  Remember the best decision to make is to not drink and drive.  But if you do have a few and find yourself in the unfortunate position of being investigated by a DUI officer here are some helpful hints to keep in mind.

If you're being investigated for a DUI then it's important to remember as much as possible about the interaction with the arresting officer to relay to your Seattle DUI lawyer. Often times during the defense of a DUI case there are no cameras or recordings of what happened. Most of the evidence comes from the police report and the testimony of the arresting officer. To challenge that evidence it may be necessary to have the only other person who was present testify. That would be the defendant.  Therefore if you found yourself in the position of being investigated for a Seattle DUI Arrest then it's important to try and take mental notes on the following areas.

Did the officer explain the reason for the stop: Many jurisdictions have seen a crackdown on drunk driving. However with such an increased emphasis many Officers are simply pulling people over for minor infractions with the intent to conduct a DUI investigation. A tell tell sign of whether this in fact happened was if the Officer initially advised of the reason for the stop or did they just start asking questions about alcohol consumption.
How much time elapsed before you were asked to exit the vehicle: Being able to remember how much time elapsed before you were asked to exit the vehicle can demonstrate whether this was the type of stop where there was no intention to cite for an infraction, but to investigate for a DUI. In order to ask a driver to exit a vehicle to conduct a DUI investigation the arresting officer needs to point to specific and articulable facts the driver may be affected by alcohol. Usually if a driver is asked to exit immediately there is no way for an Officer to note the signs of impairment necessary to start a DUI investigation.
Did you understand the field sobriety tests were voluntary: In Washington State the field sobriety tests to be taken voluntarily before they are admissible in court. Often times in DUI arrests the arresting officer just asks the driver to start performing these tests. There is no mention that they are voluntary and the driver has a right to decline them.
The area where you performed the field sobriety tests: Generally the field sobriety tests should be performed in a well light area with a relatively level surface. It's important to remember the area where the tests were done in case it was not an ideal location.
Process prior to taking the breath test: Prior to taking a breath test a subject cannot burp or hiccup or put anything in the mouth that can affect the results of the test. If you were hiccupping or burping uncontrollably and the Officer still administered the test to you that may be an issue. Try and remember any abnormalities that may have happened prior to submitting to the breath test to inform your Seattle DUI lawyer
Matthew Leyba is a Seattle DUI Lawyer focusing on DUI defense and other serious traffic offenses.  If you have been arrested for a DUI in Western Washington contact our office immediately to set up a free consultation with an experienced Seattle DUI Attorney.

Wednesday, August 1, 2012

Vigilantes and following suspected DUI drivers in Seattle

Interesting article in todays Seattle times about an ex-state patrol cadet (not an actual Washington State Patrol Trooper) mind you who followed a vehicle he suspected was a DUI while in 911.  This type of is actually pretty common here in Seattle.  I have had several cases over the course of my career where a vigilante citizen followed one of my clients suspecting they were a DUI driver, called 911, and actually made a Seattle DUI arrest.

Personally I think this behavior is a little questionable, but I realize there are people out there who have no problem calling 911 to report something they believe is illegal.  Personally I wouldn't do anything unless the suspected DUI driver was driving so recklessly or erratic it was a danger to myself, my family, and other innocent bystanders.

But often times these vigilantes go the extra step and actually try to make a citizens arrest.  Im not sure what happened in the DUI case that was in the Seattle Times about the ex-cadet stopping a council member.  But in every case that I have ever had this is what happened.  The vigilante sees what they suspect is a DUI, follow the vehicle and either call 911 or just go ahead and actually stop and detain the vehicle.  Going this extra step is what I have the problem with.

Obviously in this case that was an ex-cadet who probably didn't make the State Patrol but still wants to do that work.  Saw this as an opportunity and regardless of how unlawful it is decided to make a stop.  Now I don't know all the facts only what was in the article.  But in this Seattle DUI lawyers opinion this is unlawful behavior.

The actual case law in Washington State is pretty murky when it comes to citizen arrests.  In order for such a stop to be made the citizen needs to observe what is called a breach of the peace and it must be committed in their presence.  While Washington State has no actual law regarding DUI cases and citizen arrests it can be very ambiguous what constitutes a breach of the peace.  Is committing a traffic infraction enough of a breach of the peace for a citizen to call 911 on an individual?  The difficult thing in these cases is unless you can prove the citizen was acting as a state agency or in some capacity the 4th amendment would not apply regarding an unlawful seizure.

In case you're interested in the article here is the link.    

Matthew Leyba is a Seattle DUI Lawyer focusing his practice in DUI defense, and other serious traffic offenses.  If you have been arrested for a DUI feel free to call 206-357-8454 to set up a free consultation.

Wednesday, July 25, 2012

Don't just give up at the DOL hearing

I can't tell you how many people I meet with that just ask whether they should go ahead and accept the administrative license suspension from the DOL.  It usually goes something like this, "I met with another attorney they said the DOL hearings are impossible to win, so should I just not challenge it and accept the license suspension."  My response is always, "Who the hell told you that!"

I'll admit the DOL hearings are always an uphill battle.  Especially for Seattle DUI Attorneys.    For a couple of reasons really.  First its a civil hearing so the burden of proof is less than in a criminal case.  Secondly it seems like everything is stacked against the petitioner.  The "judge" works for DOL.  They also act as opposing counsel or the "prosecutor" if you will.  And lastly its really in DOL's financial interests to suspend a license because they get money when the license needs to get reinstated.

Now proponents of this process will tell you thats not the case.  That an individual is afforded all the due process rights, blah, blah.  But the reality is in most cases if you're arrested for a DUI then your drivers license is going to get suspended.  I mean statewide there is something like a 25% dismissal rate at these hearings.

What I listed above are just a few factors contributing to that low dismissal rate.  In all honesty I think what really contributes to those numbers are attorneys who just phone in the DOL hearing.  In other words they think they are going to lose, they don't spend any time preparing, and they just go through the motions at the hearing itself.  Their rationale is, hey Im going to lose this hearing anyway, so why put in the time and effort.  I mean after all I think thats just human nature.  You get beat down so many times, you just give up.

Well thats not how my firm does it.  And I think our results speak for themselves.  I put everything possibly into these hearings.  I really treat it like a jury trial.  My goal is to have as much of the case investigated as possible at this early stage.  Meaning all witnesses have been interviewed, all videos have been subpoena'd, I spend several hours preparing for the hearing, another hour or so drafting my cross examination of the officer, another hour drafting my closing argument along with having every case I need handy.  Overall its not uncommon for me to spend anywhere between 10 - 20 hours preparing for this hearing.  Now some Seattle DUI Lawyers probably think thats crazy, but thats just how I was raised.  Not to do anything half ass.

Now obviously I don't win every hearing.  But I feel like I win my fair share, and its above the statewide average.  The reason being is not because Im smarter than other attorneys (most yes), or because Im lucky.  I think the reason being is because I work harder than most if not all other Seattle DUI lawyers.

If you have been arrested for a DUI and you're deciding whether or not to go forward and challenge the suspension.  Do it.  What do you have to lose?  Other than $200.  

Monday, July 23, 2012

To subpoena or not to subpoena that is the question

A few weeks back I was retained on a driving while license suspended case.  The client was suspended administratively by the DOL for a Seattle DUI arrest which was handled by a different attorney.  When I sent a subpoena to DOL to request all the driving records, and all the other documents associated with the suspension I also received the ruling from the DOL administrative hearing.

If you follow this blog you know now that when a person is arrested for a DUI they are given the choice of either taking a breath test or not.  If they take the test then they face a minimum 90 day license suspension if its over the legal limit.  If they don't take the test then they face a minimum 1 year license suspension.  If they want to challenge that suspension then they request a DOL hearing which is done over the telephone.

State wide there is around a 25% dismissal rate at these hearings so they are always an uphill battle.  When challenging these administrative suspensions the accused has two options when it comes to the arresting officer.  They can either subpoena the officer or not.  This is up to the discretion of the Seattle DUI Lawyer.

In my clients case the other attorney who represented him chose not to subpoena the arresting officer and instead made a technical argument about the validity of the police report.  Subsequently they lost, and now my client is dealing with a 1 year license suspension.

But reading that ruling got my thinking when should an officer be served a subpoena to appear at the DOL telephone hearing, and when shouldn't they.  I would say in my practice I subpoena the arresting officer 95% percent of the time.  Maybe more.  Very rarely is there going to be some technicality in the police report that will result in the license suspension.

In addition to that even if there is some minor scribners error in the report, or some technicality you have to consider who the DOL hearing officer is.  Believe it or not there are some hearing officers who have lower dismissal rates than others.  In my clients particular case he had one of the toughest DOL officers, one who is known to have an extremely low dismissal rate.  I could have taken one look at who the DOL officer was, and what this technical argument was going to me and predicted it wouldn't be dismissed.

Now Im not one to really second guess what another attorney does.  But in my opinion you better have a clear cut, 100% you know its going to get dismissed winner to argue a DOL hearing without the officer being present.

If not then why not subpoena the arresting officer.  Remember if they don't appear than that also can get the DOL hearing dismissed, and I would say maybe 2 or 3 out of 10 times they don't appear.  But even if they do, you get a free deposition of the arresting officer without a prosecutor being present.  As a Seattle DUI Lawyer, this is a dream.  Think about it you can pretty much ask the arresting officer anything you want within reason, and they have to answer it.

But to each their own I guess.  This is just my opinion.  Remember if you have been arrested for a DUI, and you're looking for a DUI Attorney to represent you.  Give me a call anytime, and I'll gladly go over all your options including what may happen at your DOL hearing.    

Monday, July 2, 2012

New DUI laws in Washington State effective 8/1/12

Once again Washington State DUI laws will be changing.  Some good, some bad.  Below are a few of the highlights, or lowlights depending on how you view this.  On 3/29/12 Governor Gregoire signed the following into law under SHB 2443, and they will become effective 8/1/12.  So without further adieu here you go.

Increased penalties for DUI's where a child is in the vehicle: Under this new law if a child is in the vehicle during a DUI or Physical control then it must be documents by the arresting agency, and Child Protective Services must be notified.  Additionally the definition of a child increased to 16 years old.  Penalties also increased with more fines, and additional 6 months of an ignition interlock device.  So bottom line, if you have a few drinks on a Saturday night dinner with your family, and you get stopped for a Washington State DUI and you have kids in the car.  Be prepared for increased penalties, and a more zealous prosecution.

Eligibility to remove a DUI conviction from your record: If you're convicted of a felony DUI, or Physical Control conviction then you can never have that vacated off your record.  Also if you get a DUI reduced to a lesser offense (i.e., Reckless Endangerment, Reckless Driving, Negligent Driving 1) and it counts as a prior offense then it cannot be vacated if the person has a subsequent alcohol and/or drug violation within 10 years.  It used to be a long shot to get these vacated after 5 years, but now it appears people have to wait 10 years.

Increased cost of Ignition Interlock License: The cost to have this type of license will increase an extra $20 a month to help pay for indigent people

Reckless Driving suspension credit: It used to be that if your license was suspended administratively by the DOL, and then you got the criminal DUI case reduced to a reckless driving there would be an additional 30 day suspension on top of whatever the DOL administrative suspension was.  Now you can get a credit for the 30 days from the administrative suspension.  In this Seattle DUI Attorneys opinion this is a good change of the law.

Electronic home detention conversion: This area of the law used to always be kind of murky, and varied depending on the Judge.  Previously if a person was convicted of a DUI and they faced a mandatory home detention sentence, there was no explicit law that would convert that EHM time to jail, if the person wanted to just serve their sentence in custody.  Now there is.  So if you get a 60 day home detention, then this can be converted on a 15:1 ration.  You now would do an extra 4 days in jail.  This is a good change in the law.

Eligibility for out of state IIL license: It used to be that in order to be eligible for the ignition interlock license you needed a valid Washington State drivers license at the time of suspension.  Now a driver who is otherwise eligible for an ILL, but does not have a Washington state license can now be eligible for the IIL.

Remember if you have been arrested for a DUI, its important to contact a Seattle DUI lawyer immediately to ensure your constitutional rights are protected.  Visit our Seattle DUI Law Firm website to learn more.

Wednesday, June 27, 2012

Leyba Defense PLLC firm update

For those that follow the blog, I apologize for not making any posts the past couple of months.  Its been very busy, which is good for business, but the downside is I don't have much time for blogging.  It seems like every week, Ive been in court every day.  Or on days when I don't have court I've had jury trials scheduled that I need to prep, so I use that time for putting together my trial notebooks and things like that.

So here are some of the highlights of the past 2 months.  And again this is not meant to toot my own horn.  If you have read this blog before you know that I think Attorneys that have to write up their latest victories are just looking for some ego stroking, and thats not why my firm is about.  But I do think its important to note that every now and then the justice system works, and innocent people are not convicted.

DUI Dismissed: In May the firm litigated a motion in a local Municipal Court.  The issue was whether there was a sufficient basis to pull over the client.  In the end the Judge found the Officer did not observe a traffic infraction and therefore did not have a sufficient basis to pull the client over.  This effectively suppressed all the evidence after the stop including the field sobriety tests, the portable breath test, and the breath test at the station.  And in the end the case was dismissed.  Now regardless of how you feel about DUIs, everybody in this country is protected the Constitution.  And if law enforcement does not follow those protections they need to be called out on it.  

DUI Dismissed: In June I had an interesting case.  It was a relatively low breath test in one of the local District Courts.  The client came to me not wanting anything on her record.  Which is difficult to obtain on any type of case.  Let alone a DUI charge.  But the one thing the client had going for her was my familiarity with the particular Judge and Court her case was in.  A few months prior I had a similar case.  A low breath test in front of a particular Judge. In that case the Judge agreed to a deferred sentence and then dismissed the case right on the spot at the time of sentencing.  So I knew if we could get in front of the same Judge and make the same arguments we had a good chance of him dismissing the case.  Well low and behold after a few court dates we got in front of this Judge.  I made the same arguments as before, and the Judge did the same thing and dismissed the charge.  The client was happy with the outcome, and now she can lawfully say she has never been convicted of a crime.

DOL hearings dismissed: Also in May and June I had a couple DOL hearings get dismissed.  Which is always great news to the client because their license will not get suspended.  But its also great satisfaction personally because the success rate at these DOL hearings is so law due to the nature of them and the legal standard that needs to be met.  In one case the Officer forgot to check a box, which resulted in the suspension being dismissed on a technicality.  In the other case the Officer didn't properly observe the client for 15 minutes prior to taking the breath test, which resulted in the license suspension being dismissed due to an inadmissible breath test (thank goodness for the video in the BAC room, because the Officer denied doing that during testimony).  And we also won a license suspension hearing when the Officer failed to appear.  Now I didn't really do anything in that case, but when the Officers are properly sent a subpoena, they need to appear like everyone else.

And lastly I had a tough verdict in June on a DUI jury trial.  As a Seattle DUI Attorney theses types of cases are always tough when the Prosecution was not offering any kind of plea deal, and my policy in those types of cases is to hold the Prosecution to their burden of proof and make them do their job.  In the end my client received the exact same sentence from the Judge he would have received if he just plead guilty.  But he also has an interesting appeal issue should he choose to move forward with it.

Upcoming I have some interesting cases set for jury trial.  I think they are good cases, and a verdict can go either way.  Which is all you can ask for in a criminal case.  Especially a DUI charge where usually the evidence is stacked in favor of the Prosecution.  So I will keep you posted on how those turn out.  

Remember with the summer in Seattle finally arriving, its important to not drink and drive.  But if you find yourself in the position of being investigated for a Seattle DUI.  Follow these simples rules and you will ensure your constitutional rights are protected.

  1. Decline to answer any questions
  2. Decline to do any field sobriety tests
  3. Decline to do the portable breath test at the scene
  4. Ask to speak with a Seattle DUI Attorney prior to submitting to the breath test at the station.

Friday, April 20, 2012

The importance of getting an alcohol and drug assessment early in a DUI case

So what is an alcohol and drug assessment.  It involves having the client meet with a counselor for roughly an hour and a half and be interviewed to determine whether they suffer from alcohol and or drug abuse or dependence. At the conclusion of the interview the counselor will write up a report and state whether the client has any alcohol and or drug issues and whether or not the would benefit from treatment. As a Seattle DUI Attorney having a client get this assessment done early on in the DUI process will greatly benefit them for a number of reasons.
First a Judge will require the client to get an assessment done at the time of sentencing whether it is to the DUI as charged or to some lesser offense. In other words unless the DUI charge gets completely dismissed or reduced to a traffic infraction this is mandatory. It is my opinion since the client will be required to do it anyway, it's best to get it done with and have one less thing to worry about.  Besides it looks good in the eyes of the Judge when a defendant does things before they are imposed by the Court.  
Secondly since it will be required the client might as well know what they are agreeing to. As I stated above at the time of sentencing the Judge will require the client get this assessment done. If it's not done prior to the sentencing then the client will just be agreeing to do whatever it says without knowing what it is. In other words if the client waits until after sentencing to get the assessment done, and it comes back they suffer from alcohol dependence and requires 2 years worth of treatment that is going to cost $5000 than that is something they probably would have liked to know when they were deciding whether to take a plea deal which was contingent on them agreeing to do the assessment and any follow up treatment.
Lastly the assessment can be used as a negotiation tool with the Prosecution. In my experience as a Seattle DUI Lawyer when the Prosecutor is on the fence about whether or not to offer a reduction in charges one of the factors they will consider is whether or not it's likely the Defendant will get in trouble again. If the Attorney can provide an assessment saying the Defendant doesn't have any substance abuse issues, and they are not likely to reoffend, and this Seattle DUI arrest was out of character than that is something that may sway the Prosecutor from one side of the fence to the other side.

Thursday, April 12, 2012

What does Prado really mean in a Washington State DUI case

In almost all DUI cases the original basis of the stop is for a traffic infraction.  In many of those DUI cases lane travel is an issue and the underlying infraction.  RCW 46.61.140(1) defines what is a lane travel violation here in Washington State.  It states, "vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."

So here is the scenario.  A law enforcement officer is on the freeway late at night.  They observe a vehicle ahead of them.  This vehicle crosses their lane of traffic briefly and then moves back into their lane.  It may happen a second time again, then the officer initiates a stop citing a lane travel violation.  After some initial questioning the driver is suspecting of drinking alcohol and is asked to exit the vehicle.  A DUI investigation is conducted and the driver is ultimately arrested.  

This type of scenario happens every day in every part of the country.  However here in Washington State, a recent case of State v. Prado has squarely and definitely addressed the issue of whether a brief crossing of a traffic lane is a sufficient basis to conduct a traffic seizure under RCW 46.61.140 for a lane violation statute.  

That Court has found that brief incursions are to be expected when driving and therefore are not grounds for a traffic infraction as long as there is no danger to other vehicles.  Now the Prado court failed to discuss how many times a vehicle crosses a lane and for how long constitute an infraction.  And this is where most likely the Prosecution and the Defense disagree when it comes to these types of legal issues.

My opinion is the Prado court used two very important terms when reaching its decision.  The first being the word "brief" and the second being the word "incursions."  The definition of brief is "of short duration."  The word "incursions" is plural meaning more than one.  Therefore I believe if the lane violations are brief in duration, and are more than once than the Prado case applies.  The Prosecution on the other hand always argue that the facts in Prado are what control, and in that case the lane violation only occurred once and it was for one second.  Anything more is inapplicable.  This thinking in my opinion is incorrect and should always be challenged.

Recently I had a case with this very same scenario.  Fortunately for my client and me the Judge ruled our favor and found the terms "brief," and "incursions" meant brief in time and more than one.  If you have been stopped for a lane violation statute and were subsequently arrested for a DUI its important you speak with a Seattle DUI Attorney immediately, contact my office to set up a free constitution and ensure your constitutional rights are protected.