Sunday, June 30, 2013

Can't there be a happy medium when it comes to filing DUI cases in King County?

My last blog post discussed an article written by the Seattle Times basically throwing the King County Prosecutors Office under the bus because they don't file DUI charges until 2-3 months after the DUI arrest.  Essentially the Times used a couple repeat offenders as examples of situations where an individual was arrested for DUI in King County, the charge wasn't filed right away and they got arrested again for DUI and injured someone.  All before the King County DUI charge was filed.

Well the Seattle Times and anybody else who complained about the practice of the King County Prosecutors office when it comes to filing DUI charges got their way.  Tomorrow morning in Redmond District Court there will be over 130 arraignments on the arraignment calendar.  This is almost 3 times what is typically is.  From my understanding the King County Prosecutors Office is no longer going to stagger DUI cases when it comes to filing.  

From now on every DUI case gets filed at the same time.  It will be an endless cycle and it will be much more the norm to see arraignment calendars with over 100 people.  That is all fine and dandy except there is no way any Court in King County can handle that kind of volume.  Regardless of what the Judges think.  It is just not feasible.  So what will happen?

Well the calendars are not going to get finished and one of two things will happen.  The Judge will make the defendants came back later that day, or the arraignment will get rescheduled to another date.  Either way it will be a colossal waste of time for the defendant and their defense attorney.  Imagine sitting in Court all morning for 3 hours.  Your case is not called and the Judge tells you regardless of what other plans you had, regardless if you have to go back to work, regardless of anything else you have going on.  You have to put it on hold and come back from your arraignment because we scheduled too many people and you're the odd person out.  

Hopefully it doesn't come to that, and there can be some kind of happy medium with the Court and the King County Prosecutor's office where the DUI filings get staggered.  The arraignment calendars are back to normal size.  And people aren't stuck in Court for 3 hours only to have to come back.

About the author: Matthew Leyba is a Seattle DUI lawyer.  His practice focuses on representing those accused of DUI and other related offenses.  He is rated a 10 out of 10 by Avvo, and named a Rising Star in Criminal Defense by Seattle Met Magazine.    

Saturday, June 22, 2013

Does it matter when the Prosecution decides to file a DUI charge?

Recently an article came out in the Seattle Times discussing the delayed filing of DUI charges in King County compared to other jurisdictions in Washington State.  The reporter suggested the delayed filing of DUI charges was bad, and called out the King County Prosecutors office because of it.  In the article an example is used of a guy who was arrested for DUI but the charge was not filed for a few months.  During those months he was arrested again for DUI.  And the question was asked why would he out of custody?

Well this article got me thinking.  Does it really matter when the Prosecutor files a DUI charge.  Obviously this will be from a Defense Attorney standpoint, but in my opinion the filing of a DUI charge most times has very little effect on a DUI case.  However there are certain instances when a delayed filing will benefit the Defense.  For example:

Lets say that you have been arrested for a DUI in Seattle.  Your case gets referred to the King County Prosecutors office.  Almost 3 months after the arrest you have an arraignment.  At that arraignment the Prosecutors office asks for bail or a requirement of ignition interlock while the case is pending.  The Prosecutors argue there is a community safety risk if these extra conditions are not imposed and there is a substantial likelihood another drunk driving arrest will occur.

Well in my opinion as a Seattle DUI Attorney the Prosecutors would stand a better chance of having those above conditions imposed if the DUI charge had been filed sooner.  It is kind of difficult to convince a Judge someone is a community safety risk when the Prosecutor hasn't been concerned with them for the past 3 months.  Meaning if they thought there was a substantial risk they would drink and drive again then the DUI charge should have been filed sooner.  Typically this is what a Judge says and that is why sometimes the Prosecutors cannot get those conditions imposed.

The second reason it is sometimes advantageous for the Defense when a DUI charge is not filed right away is the amount of investigation that can get done prior to the arraignment.  If a DUI charge does not get filed for 2-3 months.  Than that is 2-3 months a Defense Lawyer is working on the case.  Interviewing the arresting officer.  Requesting and reviewing video evidence.  Investigating the breath test records and maintenance logs of the breath test machine.  Essentially this delayed filing has given the Defense Attorney a head start on preparing a defense.  Something that comes in handy when compared to the amount of time a Prosecutor has on the case.

And lastly in my experience when a DUI charge gets filed closer to the statue of limitations rather than sooner.  And I mean right at the 2 year limit then usually by that time the case is pretty stale.  Witnesses are gone.  Police officers do not remember as well or may not even be around anymore.  And usually due to the time frame and age of the case, Prosecutors are more willing to negotiate and offer a plea deal then normally would not have.

So those are three instances when a delayed filing will benefit a Defendant.  But generally a delayed filing of 2 months is not that big of a deal on a first offense DUI and most times will have little to no effect on the outcome of the case.

About the author: Matthew Leyba is a DUI lawyer in Seattle.  He is rated a 10 out of 10 by Avvo and named a Top Seattle DUI lawyer.  Additionally he has been named a Rising Star in the field of DUI Defense by Seattle Met Magazine.  An honor less than 2.5% of all Attorneys receive.   

Thursday, June 13, 2013

The Court's Role in hearing DUI cases

I recently came across this website that was posted on another DUI blog that follow.  It is called The Courts Role in Reducing the Incidence of Impaired Driving.  This website asks a great question.  But in my opinion the answer given by the website is completely off.

Essentially this website was created as a guide for Judges who don't hear DUI cases that often.  This website was created by the National Center for State Courts.  Which is an organization designed to offer resources to Judicial leaders, Court administrators, staff, etc.  The mission of this organization is to improve the administration of justice through leadership and service to state courts and courts around the world.  So the best I could tell this organization sounds somewhat legit, which makes me more alarmed that this website would be put out under the guidance of this organization.  

Now back to this website.  It is a pretty thorough website describing the role Courts should take in hearing DUI cases.  Sounds innocent enough, huh?  Well it is not.  Reading through the website the entire tone is anti-DUI.  Now a majority of the site offers concerns for public safety, decreasing the number of DUI related deaths, accidents, etc.  Which I'm all for.  

But portions of the website seem to be suggesting a tougher stance should be taken personally with individuals charged with DUI as opposed to other crimes.  For example it states, 

"In DWI cases the Court can have a much broader role than many other types of cases.  Through it's interaction . . . the Court establishes a tone towards DUI cases in the community.  This is evident when the Court addresses a defendant at sentencing to stress the severity of the DWI case, invites school groups to attend DWI trials, or explains to law enforcement procedural shortcomings following unsuccessfully prosecuted cases."  
Now this is just a small snippet of this organizations views towards DUIs.  Now don't get me wrong above all else I'm a husband and a father.  Even before a Seattle DUI Attorney.  My family is the most important thing in the world to me, and protecting them obviously speaks for itself.  The last thing I would ever wish on anybody is to be injured by someone who was driving impaired.  If that can be prevented then of course I'm in favor of it.

But at the same time if an individual makes a mistake and is charged with a DUI in Seattle, or any other places in our Country.  Then they must be afforded the same rights as everyone else.  This is why our legal system works.  Every defendant in a criminal case has certain rights that are automatically attached.  Including the right to be heard by an impartial Judge or Jury, and the right to be presumed innocent.

What upsets me with the tone of this website, and the National Center for State Courts is the biased view it puts on individuals charged with DUI.  To suggest a Court has an obligation to set the tone for how DUI cases are to be handled is wrong.  That is not their job.  It is the State Legislature and the Prosecutors job to do that.  A Judge is to sit impartially and handle every criminal case the same.  Meaning they must afford each defendant regardless of what they are charged with the same rights.  Additionally the Court does not have an obligation and should not take part in helping Prosecutors obtain convictions by telling the Cops and Prosecutors what they did wrong during an unsuccessful prosecution.  That is not the Courts role.

Obviously DUI offenses are a serious offense.  Especially considering the recent tragedies we have had Seattle involving DUI related deaths.  However those defendants, and ever other person charged with a DUI must be afforded the same rights.  There is a balance between weighing the community safety concerns with those individual rights of the defendants.  The Court's job is not to tip the scales in favor of the law enforcement or the Prosecution but to weigh the concerns and rights evenly.  

About the author: Matthew Leyba is a DUI lawyer in Seattle.  His is currently rated as 10 out of 10 by Avvo and listed as a Top Seattle DUI Attorney.  Additionally he has been named a Rising Star in the field of DUI Defense by several publications including the Super Lawyers Magazine and the Seattle Met Magazine.  This is an honor less than 2.5% of all Attorneys in Washington State receive.  


Monday, June 10, 2013

Don't follow the antics of Chad Johnson at your Probation hearing

In case you're not familiar with who Chad Johnson is.  He is a former NFL wide receiver.  He used to go by the name Chad Ochocinco, but changed it back to his original name last year.  Anyway today a Judge handed down a 30 day jail sentence to Mr. Johnson for what I can only describe as "joking" in Court during a Probation hearing.  

So what happened?  Mr. Johnson is currently on probation for a domestic violence change he pled no contest to for head butting his ex-wife.  I guess since that plea he hasn't met some of the conditions of the sentence.  Specifically meeting with a probation officer among other things.  Today he was in Court to answer for the sentence noncompliance issues.  His Defense Attorney and the Prosecutor had reached a deal where Mr. Johnson would not serve any jail time, and would only have to make up the missed probation appointments with the probation officer.

Prior to accepting this plea deal the Judge asked Mr. Johnson if he was happy with his Attorney.  In a joking manner, Mr. Johnson slapped the back side of his Attorney.  Apparently the Judge did not approve of this behavior.  She essentially told Mr. Johnson that she didn't think he was taking things seriously and lowered the boom with a 30 day jail sentence.

Now for those of you that don't know.  When a defendant appears before a Judge at a Probation hearing.  The Judge has the discretion to hand down whatever sentence they want.  In other words they have the power to hand down whatever sentence maximum sentence allowed under the law.  That is why it is called a suspended sentence.  Because at the time of sentencing the Judge suspends whatever the maximum sentence is on the condition that certain requirements be met.  If you don't meet those requirements or conditions of the sentence than that suspended jail can come back into play.  

So why am I writing about this on a Seattle DUI Attorney blog.  Well in my practice I often appear at these probation hearings.  Usually not for my clients that didn't do what they were supposed to.  But a new client who needs help specifically at this Probation hearing.  The first thing I always tell them is to act appropriately.  You see all a Judge wants to see is some remorse, some accountability, and reassurance that you're going to take things seriously and follow what they say.  

Basically you have to kiss up to the Judge because in the end they have the power to throw you in jail on a whim.  Much like what happened to Chad Johnson.  So if you end up in front of a Judge following for a Probation hearing dealing with a Seattle DUI arrest.  Do yourself a favor and take things seriously.  Because one wrong word, or action can mean the difference between going home and going to jail.  

Additionally never try to do these hearings by yourself.  Occasionally I will see a defendant representing themselves at this hearing and it never goes well.  They think they can just show up and talk their way out of trouble.  And it doesn't work that way.  An experienced Seattle DUI Attorney is needed to help you out.  Trust me a good one is worth their weight in gold.

About the author: Matthew Leyba works as a DUI lawyer in Seattle.  He has been named a Rising Star among Seattle DUI Attorneys by the Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive.  Additionally he is rated a 10 out of 10 and listed as a Superb DUI Lawyer by Avvo.  

Friday, June 7, 2013

Things a Seattle DUI Attorney should not do in Trial

First let me preface this with I am in no way an expert when it comes to DUI jury trials.  Yes I have litigated over 100 jury trials, but I'm always still learning, and I'm always open to becoming a better trial attorney.  In my opinion the day a DUI Attorney says they are an expert is the day they stop learning and I don't ever want to stop learning.  So every now and then I will watch parts of jury trials when I have the time.  The past couple of weeks several of my jury trials were continued so I stuck around and watched parts of some other cases. 

After watching several different DUI Attorneys litigate portions of a jury trial, I came way with some things that I felt were not very effective but are quick fixes.  In other words I think there were some things the DUI Attorneys should not have done, or aspects of the trial they could have done a better job of.  So here is a list of things that I think a DUI Attorney should not do when litigating a DUI case.

First keep things cordial with the Prosecution.  Yes sometimes Prosecutors can be difficult to work with.  And yes sometimes they are not always the most pleasant.  But I'm a firm believer in taking the high road and always trying to maintain a cordial environment during a jury trial.  I think a DUI Defense Attorney can come across his petty and sleazy if they acting up when dealing with the Prosecutor.  A recent case I saw involved a DUI Attorney and a Prosecutor who obviously did not get along with one another.  Both were taking jabs at each other in front of the jury, and both did not treat the trial with the respect it deserved.  I think had the DUI Attorney taken the high road the jury would have perhaps liked him more and possibly sympathized with the client.

Secondly, do not ever admit your client was impaired.  Especially if you're arguing to a jury to find your client not guilty of a DUI because there is a lack of impairment or evidence.  I get what the DUI Attorney was trying to do here.  He was trying to be self deprecating in a round about way and acknowledge the weaknesses in his case.  However when you get up in your closing argument and say you acknowledge your client was impaired, I think this is probably not a very effective way to persuade the jury to acquit your client.  I think there are much better ways to say portions of the evidence look bad, but there is still a reasonable doubt based on "xyz."

Lastly, take the time to dress nicely.  You don't have to wear a $5000 suit.  Although wearing a suit is always a must.  But even if you wear a sports coat and slacks please take the time to at least iron your shirt and slacks.  I think it is such a sloppy look to do otherwise, and the perception the jury has of a sloppy looking Attorney is a sloppy dresser is a sloppy attorney.  You lose credibility and once you do not have any credibility with the jury the case is over.

It was definitely interesting to watch a few trials over the past few weeks.  These were just a few things that I saw that I felt hurt the DUI Attorneys chances at trial.  

About the author: Matthew Leyba is a Seattle DUI lawyer.  His is rated as a Top Seattle DUI Attorneys in Seattle by Avvo, and named a Rising Star in DUI Defense by Super Lawyers Magazine and the Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive. 

Wednesday, June 5, 2013

When to hire an expert in a DUI case

One of the most important aspects in defending a DUI case is knowing when it is beneficial to hire an expert for consultation and possible testimony at a trial.  In a DUI case at least in Washington State their are a few experts that everyone uses.  So their schedules fill up pretty quickly.  In addition the cost of an expert can be quite expensive to the client.  In my opinion before an expert is retained here are a few things to keep in mind.

First can the expert do an initial free consultation.  Meaning have a 5-10 minute conversation with the DUI Attorney to determine whether expert services are even needed and whether this particular expect can even help.  Sometimes DUI cases have complicated issues and not every expert is equipped to consult on it.  So a 5-10 minute conversation to determine whether retaining an expert is even feasible is a ideal.  Additionally it will give the client some time to determine whether they even like this expert and whether they feel they will be helpful.  

Secondly assuming the expert is able to consult on the case.  The next factor to look into is the cost.  First whether the cost of the expert is even in the wheelhouse of the client.  But secondly how the cost breaks down.  Are there additional fees for trial?  Will travel expenses be needed?  What is the fee to provide a written opinion to use in negotiation with the Prosecutor?  These are all things that need to be considered, especially when you're asking the client to foot the bill.  

Thirdly can this expert be joined in another DUI case.  Often the expense of experts is quite hefty and clients cannot afford it.  But if the expert can be retained for several cases than that cost can be spread among the defendants.  This would be ideal if there was a big motion hearing where several defendants were joined together.  Then one expert could be retained to provide testimony and their opinion and a single client would not be stuck with the entire bill.

Lastly you need to determine whether the expert is available.  A DUI case especially in Seattle can last several months up to 1 year.  I know one of expert in the Seattle area who always vacations during the winter.  It would be pointless to retain this individual in the summer and then have the case set for trial in the winter.  They would not be available and it would be best to try and find someone else.  

About the author: Matthew Leyba is a DUI Lawyer in Seattle.  His is rated as a Top DUI Attorney in Seattle by Avvo, listed as a Rising Star in DUI Defense by Seattle Met Magazine, and was recently awarded the 2013 clients choice award for best customer service by Avvo.