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.