Happenings in Court

A few weeks back I was in Seattle Municipal Court representing a client on a DUI case.  SMC is a pretty unique Court with regards to some of the procedures.  Specifically when it comes to checking in with a Prosecutor prior to your hearing.  Now don't get me wrong most of the cases I take are in Seattle Municipal Court by choice.  I like appearing there.  It is close to my office.  I know many of the Prosecutors and have great relationships with them, and I know all the little quirks and procedures that make it so unique.  Especially how easy it is to check in with a Prosecutor prior to your hearing, I wish more Courts did what they do.

Anyway so I was sitting in the Attorney conference room waiting for my turn to speak with the Prosecutor on my Seattle DUI Case.  I think there were 2 or 3 other DUI Lawyers in front of me.  I don't really pay attention to what they are talking with the Prosecutor about.  First of all it is none of my business, and secondly I hate it when other DUI Attorneys try to chime in when I'm talking with the Prosecutor regarding one of my clients.

As I'm sitting there a young attorney comes barging into the Attorney conference room.  Keep in mind the Prosecutor is speaking with another attorney, and there is a line of Attorneys that you must wait in to get your turn.  But she barges in and demands the Prosecutor hand over her clients file because "it is just a plea."  I'm not sure what she was thinking the procedure was or if she didn't have to wait in line because it was a plea.

But it probably wasn't the best idea to interrupt this particular Prosecutor.  Number one because he is a helluva a nice guy and was probably offended, and secondly he is the supervisor for their unit.  So the Prosecutor turns to this young attorney and says, "who are you?"  At this point everyone in line is looking at this young Attorney.  She says her name.  It's someone I have never heard of before, or ever seen in court.  So she must be really young.  Probably just graduated from law school or something.

The Prosecutor then says, "you don't just barge in here, there is a line."  and "I'm not going to just give you the file."  The defense attorney just kind of said, "ok."  She was obviously embarrassed, or at least she should have been.  She then slinked away, and after she left a few people made jokes about her.  Which Im sure she probably heard as she was walking away.

The reason I bring this up is not to embarrass or make fun of this young attorney.  Heck when I first started I'm sure I did stupid things too.  But the reason I bring this is up is because you don't get a second chance to make a first impression.  I'm not sure how the Prosecutor feels about this young attorney, or if he even remembers.  But I remember her, and if he does it's probably not going to be for a good thing.

Lately I've been seeing a lot of young attorneys out there.  The job market is tough.  They start their own firm.  Figure criminal defense is something easy.  You don't need a lot of money to hang your own shingle.  But the problem with this is they don't know what they are doing.  Forget whether they know what they are doing when it comes to the law.  They don't know what they are doing when it comes to court policies, and procedures, etc.  

When I first started I was a public defender.  I learned the ropes that way.  I had a great supervisor, and some more senior attorneys who taught me everything I know.  But it is different nowadays.  Again this young attorney seemed like a very nice woman, and I feel bad for her that she was the brunt of some jokes by other attorneys.  But she brought it on herself.  She should have asked someone what the procedure was.  She should have saw the big line of attorneys waiting to speak to the Prosecutor and realized she couldn't just barge in.  But again maybe she didn't realize any of that because she is new and nobody ever told her.  

But unfortunately now in my eyes I will always remember her for that.  But more importantly I'm sure the Prosecutor will as well?  Remember you never get a second chance to make a first impression.

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About the author: Matthew Leyba is a Seattle DUI Lawyer.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  He is currently rated by Avvo as a Top DUI Attorney in Seattle, and was recently named a 2013 Rising Star in the field of DUI Defense by Superlawyers Magazine, an honor less than 2.5% of all Attorneys in Washington State receive.

   

Prepaid "liquor stickers" hope to decrease Seattle DUI arrests

Wow what a brilliant idea by the Seattle Nightlife Initiative and the Road Safety Action plan.  Why am I just hearing about this now?  Liquor stickers have been placed on every meter in Seattle, essentially allowing an individual to prepay for 2 hours of parking the next morning.  Why what you want to do that you ask?  Well what is the most common reason people have when they decide to drive home after a night of drinking and risk a Seattle DUI arrest.  I don't want to leave my car downtown and have it get towed in the morning because Im not going to wake up at 7 am to go get it.  

This idea essentially eliminates that reasoning, and under the initiative will hopefully decrease the number of Seattle DUI arrests, because people will decide to take a cab home, and come back in the morning to retrieve their vehicle

Now I'm a Seattle DUI lawyer, and I have never heard of this program before.  And it has been put in place for the past 2 years, and only used 45,000 times.  What does that tell you?  There is not a lot of talk about it, I'm even willing to bet a good majority of people think it is some kind of a scam.

I recently found this article on Kiro 7 discussing one of the major problems with this initiative.  And that is nobody knows what it is.  The gist of the article is nobody knows what these stickers are, and they are hard to find if you do.  The news reports makes an excellent point.  Anybody who has ever lived in Seattle, or used a parking meter knows there is a bunch of crap all of these meters.  From graffiti, to other stickers, to posters, etc.  The reporter points out that nearly at the bottom of the meter is the liquor sticker idea saying what to do.  Problem is it just looks like any of the other garbage on the meter, and not necessarily official.  

So what does the City plan to do about it?  According to the article, absolutely nothing.  Because 45,000 people have decided to use it, that is somehow indicative this initiative is working.  Call me a pessimist but I don't think 45,000 over the course of 2 years is that great.  Plus how do we know these 45,000 people are in fact using the liquor sticker for what it is intended.  I bet a good majority of these people park their car regularly on City of Seattle streets, and are just using it so they don't have to wake up first thing in the morning to move their car on the weekend.

But kudos for the City of Seattle thinking of this idea.  I honestly can't say I have ever seen or noticed one of these stickers.  And I park regularly downtown and use meters when I go to Court, or picking something up at the downtown mall area.  But I will definitely check it out next time I'm at a meter, and I suggest you do as well.     put in place by the Seattle Nightlife Initiative and the Road Safety Action plan.  Why am I just hearing about this now?  

So what is it?  Liquor stickers have been placed on every meter in Seattle, essentially allowing them to prepay for 2 hours of parking the next morning.  Why?  Well what is the most common reason people have when they decide to drive home after a night of drinking.  I don't want to leave my car downtown and have it get towed in the morning because Im not going to wake up a 7 am to go get it.  

This is idea essentially eliminates that reasoning, and under the initiative will hopefully decrease the number of Seattle DUI arrests, because people will decide to take a cab home, and come back in the morning to retrieve their vehicle

As you know I'm a Seattle DUI lawyer, and I have never heard of this program before.  And it has been put in place for the past 2 years, and only used 45,000 times.  What does that tell you?  There is not a lot of talk about it, I'm even willing to bet a good majority of people think it is some kind of a scam.

I recently found this article on Kiro 7 discussing one of the major problems with this initiative.  And that is nobody knows what it is.  The gist of the article is nobody knows what these stickers are, and they are hard to find if you do.  The news reports makes an excellent point.  Anybody who has ever lived in Seattle, or used a parking meter knows there is a bunch of crap all of these meters.  From graffiti, to other stickers, to posters, etc.  The reporter points out that nearly at the bottom of the meter is the liquor sticker idea saying what to do.  Problem is it just looks like any of the other garbage on the meter, and not necessarily official.  

So what does the City plan to do about it?  According to the article, absolutely nothing.  Because 45,000 people have decided to use it, that is somehow indicative this initiative is working.  Call me a pessimist but I don't think 45,000 over the course of 2 years is that great.  Plus how do we know these 45,000 people are in fact using the liquor sticker for what it is intended.  I bet a good majority of these people park their car regularly on City of Seattle streets, and are just using it so they don't have to wake up first thing in the morning to move their car on the weekend.

But kudos for the City of Seattle thinking of this idea.  I honestly can't say I have ever seen or noticed one of these stickers.  And I park regularly downtown and use meters when I go to Court, or picking something up at the downtown mall area.  But I will definitely check it out next time I'm at a meter, and I suggest you do as well.    

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About the author: Matthew Leyba is a Seattle DUI Lawyer.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  He is currently rated by Avvo as a Top DUI Attorney in Seattle, and was recently named a 2013 Rising Star in the field of DUI Defense by Superlawyers Magazine, an honor less than 2.5% of all Attorneys in Washington State receive.

Extra DUI patrols to hit the Seattle streets for St. Patty's Day weekend

Added DUI patrols will hit the streets of King, Snohomish, & Pierce counties this weekend for St. Patrick's Day celebrations.  If you go out and drink, don't drive under any circumstances.  Even if all you have a single pint of Guinness or a single Irish car bomb (yum).  There is no such thing as the legal limit here in Washington state.  You will get arrested regardless of how you do on the field sobriety tests, regardless of what you breath test, or regardless of how much you drink.  

If you are investigated for DUI.  Remember these 3 simple rules

• Ask to speak with an attorney before answering any questions
• Don't agree to perform any field sobriety tests
• Don't take a breath or blood test without speaking with an attorney

If you follow those rules then you will ensure that you have protected yourself as much as possible, and limited any incriminating evidence the police may gather.  Below are the cities involved in the extra DUI patrols.  This list was taken from the Seattle Times this morning.

"Law enforcement agencies participating in the added DUI patrols include police from Arlington, Auburn, Bellevue, Black Diamond, Bonney Lake, Bothell, Burien, Clyde Hill, Covington, Des Moines, Duvall, Edmonds, Enumclaw, Everett, Federal Way, Fife, Fircrest, Gig Harbor, Granite Falls, Issaquah, Kent, Kirkland, Lake Stevens, Lakewood, Lynnwood, Maple Valley, Marysville, Mercer Island, Mill Creek, Milton, Monroe, Mountlake Terrace, Mukilteo, Newcastle, North Bend, the Port of Seattle, Puyallup, Redmond, Renton, Sammamish, SeaTac, Seattle, Snoqualmie, Steilacoom, Sumner, Tacoma, Tukwila, Tulalip Tribal, University Place, and Woodinville."

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About the author: Matthew Leyba is a Seattle DUI Attorney.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  He is currently rated by Avvo as a Top DUI Attorney in Seattle, and was recently named a 2013 Rising Star in the field of DUI Defense by Superlawyers Magazine.  An honor less than 2.5% of all Attorneys receive.

  

IID required for ORL in Washington State? DOL says yes

As many of you know one of the consequences of getting arrested for a DUI in Seattle is the possibility of having an ignition interlock device required in any vehicle you drive.  Thus giving you one more reason to hire an experienced DUI lawyer to try and prevent this from happening.

One of the ways of doing this is to try and get the DUI charged reduced to a lesser offense.  Like a reckless driving or a negligent driving for example.  However recently due to how DOL is interpreting one of the applicable statutes dealing with DUI offenses, a reduction in charges is not as beneficial as it once was.

If you get arrested for a DUI in Seattle, and it gets reduced to reckless driving by a plea deal than previously this was a pretty good deal.  From previous blog posts you should know that a reckless driving does not carry the mandatory jail, the mandatory fines, the mandatory ignition interlock requirement (if it's a first offense), and the 5 years of probation.  The one downside of a reckless driving conviction is it does carry a 30 day drivers license suspension, and require SR22 insurance.  But compared to the possibility of a lengthier suspension and IID requirement on a DUI, it is still an excellent idea.

Additionally if an individual wanted to drive during the 30 day suspension they could apply for an occupational restricted license.  This place restrictions on time, length, and places an individual could drive.  But it would still allow them to get to and from work, which is very important to most people.  Previously this type of restricted license did not carry an IID requirement.

But in the last few months DOL has taken it upon itself to impose an IID requirement for an occupational restricted license.  Why they started this I have no idea?  Probably just a way for them to somehow make more money off people, while at the same time adding to their infinite power they seem to have.  I believe this is an incorrect reading of the statute, and here is why?

RCW 46.20.391 codifies the temporary restricted occupational license.  States the following:

"An applicant for an occupational or temporary restricted driver's license who qualifies under subsection (1) or (2) of this section is eligible to receive such license only if: (a) Within seven years immediately preceding the date of the offense that gave rise to the present conviction or incident, the applicant has not committed vehicular homicide under RCW 46.61.520 or vehicular assault under RCW 46.61.522; and (b) The applicant demonstrates that it is necessary for him or her to operate a motor vehicle because he or she: . . .  (c) The applicant files satisfactory proof of financial responsibility under chapter 46.29 RCW; and (d) Upon receipt of evidence that a holder of an occupational driver's license granted under this subsection is no longer enrolled in an apprenticeship or on-the-job training program, the director shall give written notice by first-class mail to the driver that the occupational driver's license shall be canceled."

RCW 46.20.391 (emphasis added)

So if you read the highlighted parts closely there are essentially four requirements:

• No prior conviction for vehicular assault or vehicular homicide
• Show they are employed, etc
• Files SR22 insurance
• Not enrolled in training program

In fact I pulled this off the WA DOL website

You’re not eligible if:

• You’ve been convicted of vehicular assault or vehicular homicide within the last 7 years prior to your current incident.
• Your driver license is suspended for:
  • Driving under the influence of drugs or alcohol (DUI).
  • Physical control (drug or alcohol-related).
  • Minor in possession.
  • Vehicular assault or vehicular homicide.
  • Intermediate (teen) license violations.
  • Too many rules of the road violations while you have an intermediate license.
  • Failure to pay child support.
  • Fraud.
  • Medical or vision reasons.
  • Violation of court-ordered probation.
  • Habitual traffic offender status.
  • Failure to:
    • Qualify on a medical or visual examination.
    • Qualify on a driver skills examination.
    • Undergo required alcohol/chemical dependency treatment.
  • Violation of ORL restrictions.
  • Canceled SR-22 insurance (proof of financial responsibility).

Note there is no mention you're ineligible if you have a reckless driving conviction.  So how does DOL think they can to do this you ask?  Well effectively they are requiring people convicted of reckless driving to apply for an ignition interlock license.  But if you check out RCW 46.20.385 which codifies those requirements there is no mention of a reckless driving.

"(1)(a) Beginning January 1, 2009, any person licensed under this chapter who is convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local or out-of-state statute or ordinance, or a violation of RCW 46.61.520(1)(a) or46.61.522 (1)(b), or who has had or will have his or her license suspended, revoked, or denied under RCW 46.20.3101, or who is otherwise permitted under subsection (8) of this section, may submit to the department an application for an ignition interlock driver's license. The department, upon receipt of the prescribed fee and upon determining that the petitioner is eligible to receive the license, may issue an ignition interlock driver's license."

RCW 46.20.385

In case you don't want to look up those statutes mentioned in there take my word reckless driving is not one of them.  But check out what magically appears on the DOL website

You may be issued an ORL/IIL, if your license is suspended for both of the following:

• An alcohol-related offense eligible for an IIL.
• Another offense which is eligible for an ORL.

This license allows you to drive while your license is suspended, but restricts the hours, days, and locations where you may drive.

But the problem is this magical super secret combined license is no where in any statute I can find.  Essentially it is on a website that is owned by the Washington Department of Licensing.  So I guess that is that. 

It just bothers me that for years and years this was never the case.  One of the biggest benefits of a reduction to reckless driving was no requirement of an ignition interlock device.  If a person didn't want to sit out the 30 day suspension they could apply for the occupational license which did not require an IID device.  That is no longer the case.  It appears you must apply for both the ignition interlock license and occupational license.  Pay DOL those additional fees, install the IID, and show proof of the SR22.

Bureaucracy at its best I guess!

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About the author: Matthew Leyba is a Seattle DUI Attorney.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  He is currently rated by Avvo as a Top DUI Attorney in Seattle, and was recently named a 2013 Rising Star in the field of DUI Defense by Superlawyers Magazine.  An honor less than 2.5% of all Attorneys receive.

Unpublished WA Court of Appeals opinion says Judge has discretion to impose IID condition

A new unpublished opinion by the Washington State Court of Appeals Division I came down yesterday.  It is an unpublished opinion so it is not controlling authority.  But it is an interesting decision, and one that goes against DUI Attorneys.  

Essentially the question was whether a Judge had the authority to exercise their discretion and impose an ignition interlock requirement on a DUI sentence when there is no evidence to suggest it involved alcohol?  The Court of Appeals held, "the court has the discretion to impose the installation of an ignition interlock device even though there is no evidence that a DUI conviction was alcohol related."

In other words if an individual gets arrested and convicted of a DUI that is not alcohol.  So it is a Drug DUI, or Marijuana DUI then the Judge can impose an ignition interlock device even though there is no nexus between what the device will prevent and the crime charged.  Meaning an ignition interlock device cannot detect drugs, only alcohol.  So if a person wasn't convicted of an alcohol DUI why should a condition that is alcohol related be imposed.  

The Court of Appeals reasoned that sentencing Courts have "great discretion in imposing sentences within the statutory limits for misdemeanors and gross misdemeanors."  Additionally they state, "A court may impose probationary conditions that bear a reasonable relation ... that tend to prevent the future commission of crimes."  

Let me just say that I don't agree with this ruling.  However I think the appellant made the wrong argument, and based on how they argued the Court of Appeals is right.  Yes, essentially a Judge has the discretion to impose whatever sentence the Judge wants and is related to the commission of the crime.  So if you consider a DUI case, what can prevent someone from committing this crime in the future.  Well there are two things I guess.  You can suspend their drivers license, or you can require them to have an ignition interlock device in their vehicle.

But my question is how in the heck is an ignition interlock device going to prevent someone from committing a DUI if they use drugs, or marijuana.  It doesn't make sense to me and I think there are other reasonable alternatives that have more of a nexus to drug or marijuana DUI cases.  I think with the recent passage of Marijuana legalization there is going to be more clarity with this particular issue.  Whether the imposition of drug treatment, random UAs, or some other form of substance detection is going to happen, we will just have to wait and see.  

If you want to check out the unpublished opinion here is the docket info 67664-4, filed 03/11/13.  It can be viewed on the Court of Appeals website.  

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Matthew A. Leyba is a Seattle DUI Lawyer.  His practice focuses on representing those accused of DUI and other related offenses.  He is currently rated as a Top DUI Attorney by Avvo, and was named a 2013 Rising Star by Super Lawyers Magazine, and Seattle Met Magazine in the area of DUI defense.  Less than 2.5% of all Attorneys in Washington State receive this honor.  

UW All American arrested for DUI....It can happen to anyone

University of Washington All American Tight End Austin Seferian-Jenkins was arrested for a DUI over this weekend in Seattle, WA.  Normally I don't like to just post links to articles on my blog, but rather write some substance and relevant content for the readers.  

The reason I'm doing this today is to show that if a UW All American can have a Seattle DUI arrest, anybody can.  Here is a guy that has everything going for him.  I have watched him terrorize my Utes time and time again.  Heck he is so good that last year he was playing defensive end in the Utah game and just dominating our offensive line.  But despite all this, he is not immune to a DUI arrest, and neither are you.  

Most people out there think that if they have a couple drinks, and they eat something then they are okay to drive.  Well I'm here to tell you the game has changed, and that no longer is the case.  In fact it is my professional and personal opinion that the legal limit of .08 doesn't matter to law enforcement.  Remember when I posted an article about a Washington State Trooper saying he doesn't care what the legal limit is of the people he arrests for DUI.  That it is his job to take people off the street that he feels are impaired, regardless of what their blood alcohol content is.

Now I don't know what happened in this case.  But I find it hard to believe that Seferian-Jenkins would risk everything he has worked for if he didn't think he was okay to drive.  Could he have made a mistake and had a few too many drinks?  Perhaps.  Did he think that a few drinks would not affect his ability to drive, and did he buy into the hype that is put out there that a drink an hour some how makes you immune from a DUI arrest.  Perhaps.  

The point I want to make is just don't drink and then drive.  Regardless of what you eat.  Regardless of how many glasses of water you have.  Regardless if you limit yourself to a drink an hour.  Now a days you will get arrested regardless of what you alcohol level was.  I once represented a client who had a .03 blood alcohol content.  Let me repeat that a 0.03.  That is probably the equivalent of a half a glass of wine.  In the end I was able to get her DUI dismissed.  But she still had to go through the court process.  She still had to hire an attorney.  And she still had to go through the shame of being arrested for a DUI.  

The other point I want to make is if for some reason you find yourself in the position of being investigated for a DUI by the Seattle Police, Washington State Patrol, or any other police agency in Washington State.  For love of god please don't do the field sobriety tests.  These tests are completely voluntarily, and you have the right to not do them.  

I can't tell you how many times I have represented people who have a very low blood alcohol level, but yet somehow they managed to fail these tests.  Now whether they actually didn't perform well, or the arresting Officer was a bit overzealous and perhaps embellished portions of the performance.  It doesn't matter.  At every stage of the criminal process your performance on those tests will be used against you.  And guess what no matter how you think you did, the arresting Officer will always say you failed.  That is just the name of the game unfortunately.  

So bottom line.  Don't drink and drive.  Don't risk everything you have worked for.  But if you do find yourself in Mr. Seferian-Jenkins position then do the only thing you can control and hire the best Seattle DUI lawyer you can find to help navigate you through the process, and try to minimize the consequences and risks you face.

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Matthew Leyba is a Seattle DUI Lawyer who represents clients accused of DUI and other related offenses.  He is currently rated by Avvo as a 10/10, listed as a Top DUI Attorney in his field, and was recently named a 2013 Rising Star by Super Lawyers Magazine in the field of DUI defense.  A honor less than 2.5% of Attorneys receive.    

Leyba Defense PLLC has 50% dismissal rate on DOL Hearings in last 20 cases

If you have been arrested in Seattle for a DUI, or in Washington State for that matter then you face two separate legal actions.  One of the legal actions is with the Washington State Department of Licensing.  Depending on whether you took the breath test and you were over the legal limit, or if you declined the breath test, you're facing a suspension of your drivers license or privilege to drive in Washington State.

Now you have the right to challenge this proposed suspension.  However as most DUI Attorneys will tell you it is an uphill battle.  Just to give you an idea of how difficult it is to prevail and avoid the license suspension you need not look and further than the dismissal rates statewide.  These rates vary from year to year, but generally the dismissal rate hovers around 25%.  Meaning statewide 75% of people that get arrested for a DUI in Washington State get their license suspended administratively if they choose to challenge the suspension from DOL.  That fact doesn't give a lot of hope to people, both attorneys, and individuals facing the suspension.

With that being said, Leyba Defense PLLC currently has a 50% dismissal rate in the last 20 DOL Administrative Hearing cases we have defended.  That is twice the statewide average!  How is that possible you ask?  How can one attorney have double the success when it comes to these hearings?  

Well the answer is very simple.  I don't mail it in.  Meaning many so called DUI Attorneys out there look at the statewide average.  Figure they are going to lose the hearing anyway, so why prepare for it?  Why spend time doing something when you're going to lose.  Well obviously I don't agree with this line of thinking, and I think that is probably the biggest reason why I have been so successful recently.

Now obviously winning these hearings have more to do with preparation.  Often times there is a little bit of luck involved.  But in most cases hard work often pays off and being creative with your arguments.  In addition to spending hours preparing for the hearing instead of instead of a few minutes as most DUI Attorneys do, Im able to see things others don't.  Knowing what issues you're looking for, and what issues will be successful with a particular hearing officer is half the battle.  Knowing when to subpoena an arresting officer and when not to is a factor.  Since I have opened my own practice I have spend hundreds of hours perfecting this game plan.

When I first started I spoke with another DUI Attorney who I thought was a good attorney.  I asked him point blank what he does if on the surface he doesn't spot any legal issues that would help him prevail at this hearing.  He told me in those cases he will subpoena the arresting officer.  Hope they don't show up, if they do tell the hearing judge he has nothing and just accept the loss.  Not even try, not even ask any questions, not even may any legal arguments.  I couldn't believe that is how he conducted his practice, and needless to say I don't ask him any questions anymore.  But that is the problem out there.  Not to bag on how other attorneys conduct their practice, but to not even try or not even give it 100% effort is malpractice in my eyes.  And unfortunately in my opinion from what I see out there, a good chunk of Attorneys do this.

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Matthew A. Leyba is a DUI Lawyer in Seattle, WA.  His practice if focused on representing those accused of DUI and other related offenses.  If you have been arrested for a DUI contact our office immediately to set up a free no hassle consultation where we will discuss all your options, what to expect, and how we can help you.  

Is a green tongue enough for a DUI arrest?

Now that Washington State and Colorado have legalized Marijuana presumptively there is going to be more DUI arrests in those States for Green DUI's (those under the influence of Marijuana).  One of the observations that law enforcement often relies on in addition to the usual signs of impairment when it comes to Marijuana is a green tongue.  So the question becomes is a green tongue enough to get arrested for DUI?  

First it must be determined whether Marijuana actually causes a tongue to turn green.  

As I have noted before in my blog, I don't take part in Washington State's newest over 21 adult activity. So I asked several people I know who do, as well as some experts in the area of Marijuana impairment. They all had the same answer to whether Marijuana causes a green tongue.  Absolutely not?

So how did law enforcement come up with this green tongue phenomena.  I guess it was first started by the National Highway Safety Administration.  You know the same agency that created those wonderful roadside gymnastics tests that law enforcement and Prosecutors swear up and down detect impairment. They warn of the following characteristics for a Marijuana DUI under DEC profile, 

"characteristic indicators may include odor of marijuana in car or own subject's breath, marijuana debris in mouth, green coating on tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on the field sobriety tests."    NHTSA, "Drugs and Human Performance Fact Sheets

Yet NHTSA offers no documented medical evidence to support their position.  If you have ever tried a Marijuana DUI case then you know both the Tox and Cop say the taste buds get raised on the tongue, and the burnt Marijuana as well as the debris causes it to turn the tongue green.  I guess if you have a green slurpee, or a green jolly rancher, or a green lollipop you will get arrested for a Green DUI under the line of thinking.    

So clearly NHTSA has it correct (Im being facetious), and thus this so called green tongue phenomena has started.  So that brings me to the second question I posted.  

If you have a green tongue does that give an Officer probable cause to arrest for a Green DUI here in Washington State?  

Remember probable is the reasonable suspicion that would warrant a reasonable officer a crime has been committed.  Since probable cause and Marijuana really hasn't been discussed by the Washington State Supreme Court there really only two cases that discuss this idea and one is an unpublished opinion.

In State v. Wheeler, the Court of Appeals dismissed the idea that a green tongue and admission to past marijuana use by a driver gave rise to a reasonable suspicion of criminal activity.  In fact here is what they said.  

"Although we assume the officer's assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion's fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two."  

So basically the only ruling is unpublished but if you read between the lines the Court of Appeals has issues with the accuracy of what the Trooper said.  I think they are saying its BS, but that is just my opinion.  

So why am I bring this up.  Well has you know I'm a Seattle DUI lawyer.  I represent people not only accused of DUI involving alcohol, but also Marijuana.  And with the recently legalization of Marijuana this issue will soon get decided.  In fact I read online there was a recent case in the City of Kent where an individual was arrested for having a green tongue, and there was no other indicators of impairment.  You can check it out here.  It is titled, "Wash State Man Arrested for Having "green tongue."

Long story short.  This guy got arrested for a Green DUI in Kent.  Officer said he had green tongue, and in his infinite years of experience, and despite his lack of any sort of medical corroboration this is a sign of Marijuana use and he was arrested.  Should be interesting to see what happens in this case.  

If you have been arrested for a Green DUI and the only evidence against you is a '"green tongue," you need to fight these charges.  This is absolute BS, and is an infringement on our 4th amendment rights.  

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Matthew A. Leyba is a DUI Attorney in Seattle, WA.  He has been named a 2013 Rising Star by Super Lawyers Magazine in the area of Criminal Defense, an honor only given to less than 2.5% of all Attorneys in Washington State.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

No two DUI cases are the same in Washington State

Recently I met with someone who asked me a question that I get on a fairly regular basis, so I thought I would post my response here.  The question was, well I guess it was more of a half statement and half question.  Essentially it was, "My friend got a DUI.  He had a similar breath test, we did the same on the field sobriety tests, and he had never been in trouble before and he got a certain plea deal.  Can I get the same deal?"

As I said above I get this question fairly often.  From possible clients, to actual clients, to fellow lawyers asking my opinion about a case, or even curious friends.  It seems everyone knows someone who got a certain plea deal, or they have a friend of a friend who got a plea deal, and they had the same facts and breath test.  So the logical inference would be can they get the same deal if not better.  In felony land there is something called sentencing guidelines that outline what certain offenses carry as far as sentences.  But unfortunately DUI land, no case is the same.  There are just too many variables.

For example lets consider two DUI cases in two different jurisdictions both with a .14 breath test, and the both where the defendant has no criminal history.  You would think there would be some uniformity in Washington state where both those cases would get resolved in the same manner in terms of plea deal, sanctions, etc.  But even with those stats of .14 breath test, no criminal history, the case can be dramatically different both in terms of evidence, and the end result.  Why is that?

Well first if they occurred in different jurisdictions then you're dealing with two separate courts, two separate Prosecutors, basically two separate everything.  In other words I have appeared in most Courts in Western Washington and even several in Spokane County.  I can tell you there no two Courts that are the same.  Some courts have different types of plea deals.  Some courts have different "sentencing guidelines" when it comes to DUIs.  Additionally there are no two Prosecutors who are the same.  Different philosophies on negotiating, different caseloads, different relationships, etc.  All of these ultimately factor into the end result.  

Another huge difference in those two DUI cases of a .14 I used as an example would be the evidence.  From the reason for the stop, to the signs of impairment noted by the arresting officer inside the vehicle, to the performance on the field sobriety tests, to any statements made by the driver.  All of these factor into a resolution for a DUI case, and I would be willing to go out on a limb here and say no two cases are exactly the same when you look at those factors.  Even if both cases ended a .14 breath test.  

And lastly would be who the arresting officer was.  In my career I have seen officers who are absolutely horrible in their investigation, administration of the field sobriety tests and breath tests, and in their documentation of the arrest.  Likewise I have seen officers who conduct a thorough investigation, who administered the field sobriety tests and breath tests by the book, and who wrote a 7 page police report documenting every little thing they observe.  Now let me ask you this.  Who is more likely to have the better case from a Defense perspective?  The officer who did everything by the book, and thoroughly documented everything.  Or the officer who didn't do anything correctly, and only wrote a 2 paragraph police report that is inconsistent, and holes in it. 

So in the end what do I tell those people that ask this question.  Well I try to explain exactly what I wrote above.  That no two cases are the same, that there are too many variables, etc.  But what I can tell them is in my experience if an individual has never been in trouble before, they weren't involved in a serious car accident, they don't have an extremely high breath test, and they were somewhat polite with the officer then in those cases Prosecutors seem to be more lenient and receptive to the idea of reducing a DUI charge. 

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Matthew A. 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 contact our office immediately to ensure your constitutional rights are protected.