New definition of what constitutes a "prior offense" for DUI sentencing purposes in WA

Last month a major DUI law was changed in Washington State when it comes to DUI sentencing.  The bill responsible SB 6413 drastically alters what can be considered a "prior offense" when it comes to DUI sentencing.  Prior to this change the law was pretty clear.  Now not so much in opinion despite what the bill set out to accomplish.

As I stated prior to this law if you were arrested for a DUI then your sentence for the most part was determined based on the number of "prior offenses" you had.  For example lets say you were arrested for a DUI in Seattle in 2008.  That DUI charged was reduced to Negligent Driving 1.  You then were arrested for a DUI in 2010.  The DUI in 2010 would be considered a second offense DUI because the first case originally was a DUI then it got reduced. 

Essentially if you got arrested for a DUI and that charged was reduced to another criminal offense then it was considered a prior offense.  Pretty straight forward, right.  Well SB 6413 changes all of this.  Now a prior offense can include any of the following: driving a commercial vehicle while under the influence, a BUI, operating an aircraft while under the influence, operating an off road vehicle while under the influence, and my favorite operating a snowmobile while under the influence.  

As a DUI Lawyer in Seattle, I have to say I do not understand what this accomplishes.  All of these offenses do not carry any of the consequences a DUI does other than being a criminal charge.  So why are they treated the same as a DUI when it comes to sentencing.  Why not stop there?  Why not include any alcohol related offense?  A minor in possession of alcohol, or an open container?  Obviously I am being factious, but you get my point. 

Unfortunately the DUI laws just happened to get a lot tougher in Washington State and this new law only shows how difficult things are becoming.  

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About the author:  Matthew Leyba is a DUI Lawyer in Seattle, WA.  He is the firm owner of Leyba Defense PLLC a DUI law firm located in the heart of downtown Seattle.  He practice focuses on representing those charged with DUI and DUI related 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.  

 

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. 

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