Thursday, January 31, 2013

Beware of the "Green DUI" in Washington State

Since the legalization of Marijuana in Washington State approximately 130 DUI arrests have been made for those allegedly impaired by Marijuana and that number is increasing every day.  This new DUI charge is now being referred to as a "Green DUI."  If you were arrested for a Washington State Green DUI in December 2012, then chances are you DUI charge is in the pipeline and charges will be filed against you any day.  Why does a Green DUI take so long to be filed, when an alcohol DUI can be filed the next day after the arrest?  Well the simple answer is it takes time to have a blood sample analyzed.  

What is the process for a Seattle Green DUI arrest.  As noted above after an arrest for a Green DUI then the suspect is given the opportunity to provide a blood sample.  Once provided the sample is sent to the Washington State Toxicology Laboratory and analyzed by a Toxicologist.  Those results can take anywhere from 1-3 months to get back.  Depending on the volume of cases at the Toxicology lab, and the order the sample is received.  Once those results come back they are sent to the appropriate Prosecutors Office.  

So let's say you were arrested on I-5 by a Washington State Trooper in King County.  That means your King County DUI would be filed by the King County Prosecutors Office.  So after the blood test results come back they are sent to the Prosecutors office.  A prosecutor will then review the blood test results, review the police report, and any other evidence submitted by the arresting agency.  If the Prosecutors feels they can prove a Green DUI charge beyond a reasonable doubt then they will file charging documents with their records department.  The records department then provides that to the Court that would have jurisdiction.  The Court then sends notice to the defendant of their arraignment and the criminal process starts. 

Defending a Green DUI is drastically different than an alcohol related DUI.  Prior to creating a legal limit, Green DUI's were fairly easy to defend.  There were so many different views, and medical opinions on what constituted impairment.  For every expert the Prosecutor provided, the Marijuana DUI Attorney would counter with an expert of their own.  However with this new per se law a Marijuana DUI is going to be more difficult due to just the legal limit.  But like an alcohol related DUI, there are still ways to prepare a defense for this type of charge.  Thus it is extremely important to hire an experienced Seattle DUI lawyer to properly prepare a defense.  

Matthew A. Leyba is a DUI Attorney in Seattle, WA.  His practice consists of representing those accused of DUI and other alcohol related offenses.  If you have been arrested for a Green DUI or an alcohol related DUI contact our office immediately to set up a free consultation.    

Monday, January 28, 2013

New legislation in Washington State proposing DUI college courts

One of the things I do to keep up to date on the ever changing legal landscape regarding DUI laws is watch the proposed legislation in the Washington State legislature.  You would surprised to hear about some of the proposed laws offered by our State legislators.  One of the more interesting ideas is the proposed legislation of "DUI college courts" under SHB 5023.

The basic premise behind this bill is to address the growing concern of alcohol related offenses, specifically DUI offenses in Washington state college campuses.  RCW 2.28.175 codified last year already created the existence of "DUI courts."  Basically speciality courts designed to help those charged and affected by DUI's by offering intense judicial supervision, rehabilitation, and court ordered treatment. 

I first saw this type of court back when I was working in Spokane when I was working as a DUI lawyer at the beginning of my career.  They used to have courts designed specifically for those charged with DUI offenses.  And one of the aspects of creating these speciality courts was to offer these deals kind of like a deferred prosecution where if the defendant agreed to be monitored by probation, complete an intense alcohol treatment, and completely abstain from alcohol, as well as some additional conditions they would get the benefit of some kind of deal.  Typically what I would see would be an individual facing a significant amount of jail time enter into these types of deals.  It was kind of like a deferred but not since you only get one per lifetime.  The benefit of these deals was a reduction in charges so the jail, fines, and other penalties would be avoided.

The recent legislation of the DUI courts hasn't really been implemented in jurisdictions I practice in so I don't know how they are working.  But as a Seattle DUI lawyer I kind of like this idea of a DUI college court.  From my reading of the proposed legislation it sounds like there may be some benefits for individuals who are in these DUI courts.  Additionally the courts would be on college campuses, and only college students would be allowed to participate.  There is also a clause that would integrate the student code of conduct into these DUI college courts.  This is an interesting idea.

Especially when it comes to college students.  Who are starting out in life.  Building their resume, and worry about employment after graduation.  Obviously a DUI conviction can have a profound impact on an individual, but for a college student it can have severe consequences.  So this idea might be something to help those individuals who make a poor decision after a college party.

Matthew A. Leyba is a Seattle DUI lawyer.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been charged with DUI contact our office for a free consultation to discuss your rights, options, and how we can help you.   

Monday, January 21, 2013

Seismic shift in negotiating policies of major Prosecutor office in Washington state on DUI cases

Over the past 6 months a major change has been in occurring with one of the largest Prosecutor offices in Washington state when it comes to DUI cases.  Due to what the higher ups in the office feel is an inadequate conviction rate on DUI cases compared to other Prosecutor offices in the same jurisdiction.  A new policy has been put in place gradually over the past year and half.  No longer will cases be reduced based on mitigating circumstances or even if the breath or blood test is barely over the legal limit.  If a DUI case has no legal issues resulting in possible dismissal, or suppression of key evidence a reduction will no longer be offered, and the recommended plea will be to plead guilty as charged.

So what does this mean in lay mans terms.  Basically prior to this policy if an individual was charged with a DUI, it was a first offense, there was no car accident involved, and the breath or blood test was below .12.  Then the opening offer from the Prosecution would most likely be a reduction in charges.  This was due to the long standing tradition of this particular Prosecutors office making the best offer up front.  Unlike other Prosecutor offices where often times the initial plea deal offered is to plead guilty as charged to the DUI, and then through extensive negotiations the charge could possibly be reduced.

The reasoning behind this charge is from what I understand the higher ups in the office are not pleased with the DUI conviction rates compared to another Prosecutors office in the same jurisdiction.  The difference is pretty substantial when you look at the numbers.  So because of this no longer will reductions be offered in most cases unless there are severe legal issues.

As a Seattle DUI lawyer, I must say that I do not agree with this policy change.  Not because of the thinking to increase the DUI conviction rate.  Even though I don't agree with that, DUI cases have a lot of negative publicity.  An election is coming up.  From a political standpoint it makes sense.  But what I don't agree with is two things.  First the thinking that because another Prosecutors office has a higher conviction rate, somehow this is a competition and one office needs to out do another office.  The second issue I have is the lack of any sort of discretion to offer a plea deal on cases they may not have severe legal issues, but have mitigating circumstances.

I have blogged about this before.  But if a Prosecutor I would take the following stance on DUI cases when it comes to negotiating.  If the case was a first offense.  There was no accident involved.  The alcohol level is not extremely high.  The individual was cooperative with the arresting officer and polite.  The individual has completed their alcohol and drug evaluation, along with the ADIS and VIP classes.  And if the individual was willing to do a significant amount of community service then I would offer a reduced charge.

My thinking behind this is two fold.  First if its a first offense, and there were no injuries then nothing bad has happened.  Secondly if the individual was cooperative with the officer, proactive with all their classes, and willing to pay for this mistake through volunteer work that would benefit the community then clearly they are showing a remorse and a certain accountability through their actions.  Which in my opinion speak louder than words.

But I guess that is why I'm a Seattle DUI lawyer, and not a Prosecutor.  So how will this new policy shift affect new DUI cases that fall under this Prosecutors jurisdiction?  Well gone are the days where a supposed DUI Attorney with know experience can walk into court not knowing a thing about DUIs, and get a reduced charge because the breath test is not very high and its a first offense.  Now a days it is even more important to hire an experienced DUI lawyer that knows the law, understands the subtle nuisances of DUI defense, and has the necessary trial skills should the case get that far.   

Matthew Leyba is a DUI Attorney in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  He has a high success rate in defending DUIs, and has litigated over 100 jury trials.  If you have been arrested for DUI contact our offices immediately to set up a free consultation and ensure your constitutional rights are protected.  

Wednesday, January 16, 2013

Argument heard by the US Supreme Court on the DUI Case Missouri v. McNeely

Every once in a while a case that affects DUIs comes along that makes it all the way to the US Supreme Court.  Welcome to the case of Missouri v. McNeely where oral arguments were heard dealing with this particular issue.  So what is this case about you ask

Issue: Whether a law enforcement officer may obtain a non consensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the 4th amendment requirement of a warrant based on the natural dissipation of alcohol from the human body. 

In other words.  Can a cop force someone to give a blood sample without a warrant because alcohol exits a human body.  Keep in mind this is different that what is currently going on in Seattle DUI arrest cases where an officer can obtain a warrant to do a blood draw and force someone to provide a blood sample.  

Argument recap: Most of the hour long argument was spent discussing all the possibilities of exigent circumstances.  From a review of the transcripts of the argument it appears the Justices view the use of a needle to take a blood sample as quite an intrusive gesture by the government, and the 4th amendment shouldn't be discarded because alcohol is always going to be disappearing from the human bloodstream.  

To no surprise the lawyers for the state mainly argued there would never be enough time to get a warrant before alcohol dissipates.  Therefore the need to bypass the warrant requirement, and allow officers to force a blood draw on their own.  However what was pointed out by Justice Kennedy that half of the states do not allow the taking of a DUI blood sample without a warrant, and they have streamlined procedures for issuing warrants.  Steven Shapiro from the ACLU pointed out an interesting point.  He argued that getting a warrant was not a complex task, given the technology of lap tops, and cell phones that exist today.  

Overall from what I have read, and others opinions who were there it doesnt appear that the US Supreme Court will allow law enforcement officers to force blood draws without a warrant requirement.  Although you never know what is going to happen.  

Matthew Leyba is a Seattle DUI Lawyer.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  He has offices in downtown Seattle, in Bellevue, and in Bothell.

Thursday, January 10, 2013

Happenings in Court

It's been a busy month for me personally.  So I haven't had a chance to write on the blog lately, or update my happenings in court section.  I don't have any funny stories to write, but something interesting happened to me the other day in Seattle Municipal Court.

As many of you know I'm a Seattle DUI lawyer, so that means a bulk of my practice is in King County.  One of the places I have represent clients is in Seattle Municipal Court.  So I was there a few weeks ago, waiting for a client to show up.  Outside of the court rooms is Seattle Municipal Court are benches with great views of the Puget Sound.  In fact if it is every a beautiful sunny day in Seattle, and you have  a few minutes to kill.  Talk a walk over the SMC, and take the elevator the top floor.  There are no better views of the downtown skyline with the Puget Sound in the background.  It is absolutely beautiful.

But I digress.  So I was sitting there, just kind of spacing out while looking at the view.  And this young woman approaches me.  She was probably about 25 or so.  And she had brought her young child to court with her, and she was in the stroller.  So she approaches me and asks if I'm a lawyer.  I say yes I am, and she says, "Can I ask you a question."  I said, "sure if I can answer it I will."

Now I have been in court a lot throughout my career as a DUI Lawyer.  And every now and then a disgruntled client of another attorney approaches me, or I have seen them approach another attorney.  Usually in these situations the disgruntled person asks a legal question about their case, or says their current attorney is not working hard for them.  So that is kind of what I was expecting.  In those situations I usually say that I cannot offer any legal advice because they are currently represented, or I say to call their attorney and continue to work with them.  I know being charged is a stressful situation for many people, and sometimes they are just looking to vent to someone.

But the story this woman told me really surprised me, and kind of upset me not only as an attorney, but a human being.  So this woman was arrested for a DUI in downtown Seattle.  She was very scared about this process, having never been in trouble before.  So she found an attorney to represent her.  She signed a contract with that attorney, and gave him a sizable retainer fee.  Now in Seattle the arraignment is usually a few days after the arrest.  So this woman showed up for her arraignment, and her attorney that she found,  The attorney that she paid to represent her.  This scum bag completely no showed for her arraignment.  He didn't call to let her know something happened.  He didn't make arrangements for another attorney to appear on his behalf.  He just left this woman high and dry.

Now when this woman approached me this was at her pretrial hearing.  In Seattle a DUI pretrial hearing is usually 30 or so days after the arraignment.  She then told me that she hasn't been able to get a hold of her attorney.  That she has left several messages, and sent several emails to this attorney.  But she hasn't heard back.  She started to cry, and tell me how she had to take money out of her savings, and borrow the rest to pay this attorney.  That she was freaking out because she had never been in trouble before, and she was getting screwed by this attorney.

I felt really horrible for her.  I told her that she should continue to try and get in contact with the attorney.  Maybe something happened him, or there was some kind of misunderstanding.  I told her if she felt strongly enough she could call the State Bar Association,  but other than that I really didn't know what to say.  I apologized to her on behalf of my profession.  I told her most attorneys are not like that.  And she shouldn't lose her faith in the legal system.  She left me, thanked me for listening, and walked into the courtroom to face the Judge, presumably alone on her Seattle Municipal Court DUI charge

Although I don't know this attorney personally, I know of him.  I see his name in the google results.  He seems to know a lot about getting his name on the top of search results, but obviously he doesn't know much about being a good attorney, and a good person.  Now I only heard one side of the story, and I don't know the exact situation.  But if what this woman said is true, this is completely unprofessional and quite upsetting to me as a lawyer in this community.

Matthew A. Leyba is a Seattle DUI lawyer.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been charged with a DUI schedule a free 60 minute consultation where we will discuss all aspects of your case, explain your rights, and offer our opinion on how we can help. 

Tuesday, January 1, 2013

Starting today all Ignition Interlock Devices must have a camera

If you have been arrested for a DUI in Washington state.  Then you face the possibility of an ignition interlock requirement.  For a first offense conviction it is 1 year.  For a second conviction it is 5 years.  For a third conviction it is for 10 years.  Obviously a second and third conviction come with a lengthy time frame.  But in addition to that comes a hefty price.  And this price has just increased.

As of 1/1/13.  All ignition interlock devices here in Washington state must come with a camera. Ignition interlock devices which require a clean breath sample before a car can be started have long come under scrutiny for their reliability in ensuring the driver is the actual person providing the breath sample.  What the proponents of these new camera ignition interlock devices claim that drivers are not the ones blowing into these devices.  Sober people, friends, anyone else provides the sample.  Because it reads no alcohol, then the car is allowed to start.  

However in my opinion I have not seen any data or cases suggesting this is true.  In fact Im willing to bet these proponents would be hard pressed to find cases where a driver has an IID device, and still gets arrested for a DUI, or gets involved in an accident.  But I guess that is why Im a Seattle DUI Lawyer and not a member of MADD.

Anyway as with anything.  These new IID devices come with an increased cost.  It is a pretty nominal fee per month.  From what I have seen it will be around an additional $10 a month.  But add that to the ever increasing cost of getting a DUI, and it is just a another fee that breaks the bank.  

So how does the camera work?  Well it takes two pictures.  The first time is when the device alerts the driver he or she needs to blow into it.  The second picture is actually taken when the driver is blowing into the device and providing a sample.  Essentially by doing this it virtually eliminates any chance of someone else blowing from the passenger side of the vehicle or from the back seat.  

Matthew A. Leyba is a DUI lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

New Washington State Supreme Court case on DUI

Part of my job as a DUI defense attorney in Seattle is to stay up to date on any changes in the law.  This can occur one of three ways.  First I like to keep an eye on rulings from the district court trial level.  What Judge granted what motion, what Judge denied what motion.  How is a specific court handling other issues involving DUI's.  This is fairly simply to do since I am in court almost every day all over the state.  Im also a member of some email list serves that often update defense attorneys on the happening in court.  The second way I stay up to date is follow the Washington State Legislation.  Changes in legislation can have a big impact in my practice.  Specifically this last legislation session there were some big changes made, that I have previously blogged about.  The last way I keep up to date on issues is by following the Appellate level, and rulings from the Washington State Supreme Court.  Recently a ruling that I don't agree with came down from the State Supreme Court.  I feel it is worth blogging about so here is the gist of it.

State of Washington v. Gilberto Chacon Arreola.  The facts of the DUI case are the following.  Mr. Chacon was driving Mattawa, WA.  Earlier a 911 caller called the Mattawa PD to report a possible DUI driver.  Officer Validivia responded to the car and located Mr. Chacon.  Officer Validivia followed Mr. Chacon for almost a mile and did not observe any signs of possible impairment.  There was no weaving within the lane, no swerving or crossing into the other lanes of traffic, no other erratic driving to suggest the driver a DUI.  However Officer Validivia continued to follow the vehicle and observed the muffler had been modified.  Based on this he decided to stop the vehicle because in his words, he is a member of the community and does not appreciate the sound an altered muffler makes.  

So long story short, he stops the vehicle.  Observes signs of impairment and Mr. Chacon is arrested for DUI.  The heart of the issue is whether this sounds like a pretextual stop.  If you remember from a previous blog I wrote.  A pretextual stop occurs when a police officer contacts an individual with the intention of investigating an unrelated crime, and justifies the stop by saying some minor infraction occurred.  These issues are pretty difficult to prevail on just because deference is usually given to the Officer and if they are smart they can word their report in a way to make it sound like they are just conducing routine traffic patrol, and happen to stop a vehicle that turns into a criminal investigation.  

So what did the Supreme Court say.  They said this is fine.  In fact the holding was, "a mixed-motive traffic stop is not pretextual so as long as the desire to address a suspected traffic infraction for which an officer has a reasonable articulable suspicion is an actual, conscious, and independent cause of the traffic stop."  So in this case because Officer Validivia testified that he routinely stops vehicles for altered mufflers, and that is all he was doing in this case, the stop is justified.  

I wish the defense would have looked into how many stops Officer Validivia has actually made for altered mufflers.  Because I would venture to guess probably not many, if he has even made one before.  So using the altered muffler as an excuse to stop someone is BS in my opinion.  But I guess it worked, since it is now okay to do so.  

Matthew Leyba is a Seattle DUI lawyer in Washington state.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  He has a high success rate in defending DUI's that routinely result in reduced charges and/or dismissed offenses.  If you have been arrested for a DUI in Seattle contact our office immediately for a free 60 minute consultation.