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.