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.