How often can you expect to have Court on a DUI case?

One of the most common questions I get asked as a Seattle DUI Attorney is how many times will I have to go to Court for my DUI case.  The answer is pretty simply.... It depends.   Here are the factors that will determine how often a defendant would have to go to Court for a DUI case.

If the DUI gets reduced to a lesser charge or something along those lines and a plea deal is negotiated then obviously there may not be that many Court dates.  Typically in this situation a defendant will have to attend at least 3-4 court dates.  The first hearing would be the arraignment, there may be something called a pretrial hearing where the defendant will enter the plea deal, and then there would be a sentencing hearing.  So depending on the number of pretrial hearings it potentially could be 3-4 dates.  

If the DUI gets set for trial then there could be many court dates.  Again like the previous example there would be an arraignment, a pretrial hearing, but instead of a sentencing hearing there would be a few other court dates.  The next hearing would be a motion hearing.  This is where a motion to dismiss or suppress evidence would be litigated.  The next hearing would be something called a readiness hearing or omnibus hearing.  Basically this is just where the parties go in front of the Judge and announce whether the trial will actually commence on the date chosen or whether it will be moved.  Then of course the trial date.  

I would say depending on the jurisdiction and how busy they are if a case gets set for trial that will include anywhere from 10-30 additional court dates.  For example I recently has a DUI jury trial here in Seattle and my client and I appeared approximately 30 times before the trial actually started.  This is actually a lot and not the norm but sometimes it happens.

_
About the author:  Matthew Leyba is a DUI Lawyer in Seattle.  He is the owner of Leyba Defense PLLC a DUI law firm. 

Top reasons to hire DUI Attorney Matthew Leyba

I know, I know this isn't supposed to be some kind of sales pitch marketing blog but a blog where any and all DUI topics are discussed.  However as the owner of the law firm sometimes I just have to do this in order to run my business.  As much as I don't like it please forgive :)

So without further adieu here are the top reasons why you should hire Leyba Defense PLLC if you or someone you know gets arrested for a DUI in King County.

Leyba Defense PLLC exclusively represents people charged with DUI

If you google DUI Attorney you will literally see hundreds of Attorneys out their claiming they practice in this area of law.  And they might, but they also focus on business law, family law, personal injury, etc.  DUI Defense is just a side practice for them and therefore they do not have the necessary experience that comes with exclusively focusing and studying one area of law.  Think about it.  If you needed heart surgery would you go to a general physician or would you go to a heart surgeon.  The same thing applies for Attorneys.   

Leyba Defense PLLC limits the number of clients he represents

Leyba Defense PLLC was founded on the principle that we would run a small practice focusing entirely on the clients and to effectively do this we have to limit the number of clients we represent.  Obviously we still have to make money to run the business, but we are not like so many other DUI firms out there that try to get as much clients as possible to make as much money as possible.  We have a certain number of clients that we represent.  If you come to us and we are at that number then unfortunately we will not take the case.  It's the firms motto and that is why we are able to get such good results for our clients.  Less clients equals more time to spend individually on each case which equals better results.  It's simple math.  

Leyba Defense PLLC has a high success rate in defending DUIs

If you check out our website we have a pie chart detailing the last 100 DUI cases we have represented and what the results were.  Many of the cases have either been reduced to negligent driving 1, reckless driving, or in some cases even dismissed.  The proof is in the pudding and we are the only firm around that post every results we get for our clients.  Good and bad.  Some so called DUI firms out there will post a DUI dismissal or a DUI not guilty, but there is a reason they only show you 2 out of the last how ever many cases they have defended.  Anybody can get a good result once in a while, but the best DUI Attorneys sustain that success over time.  Now every case is different and not every case gets reduced or dismissed.  But most of the time Leyba Defense PLLC is able to work out a plea bargain that is in our clients best interests.

So there you go.  The top reasons why Leyba Defense PLLC is the right firm to represent anybody charged with a DUI in the Seattle area.  

_
About the author:  Matthew Leyba is the owner of Leyba Defense PLLC, a DUI law firm located in Seattle.  He has been named one of the best DUI Attorneys in Seattle by the Seattle Met Magazine.  He is also rated a 10 out of 10 by Avvo.com

What not to do when being investigated for DUI

I recently made a blog post on a similar topic, What not to say during a Seattle DUI arrest, on my other blog.  However that blog post got me thinking about some of the DUI cases I have represented in my career.  If you practice DUI Defense then you know what I mean, those crazy cases where you're reading the police report or watching the video and see something that makes you cringe and say "I wish you didn't do that."  So without further adieu here are some things that you should never ever do if you're being investigated for a DUI in Seattle, or anywhere for that matter.

Now if you're an avid reader of this blog then you know not to answer any questions without first speaking with a DUI lawyer, not to do any field sobriety tests, and not to take any breath or blood test without first confirming with a DUI lawyer.  So I will not discuss that here.  Instead this will be some things that people often say or do that they can control. 

First of all don't be a jerk to the investigating DUI police officer.  Yes, I realize being investigated for a DUI would be one of the worst moments of anybody's life.  However everything you say or do will be used against you in your criminal DUI case.  So do yourself and your DUI lawyer a favor and just be polite.

Secondly if you see lights pull over.  I can't tell you how many people continue to drive once they see lights.  Either they don't believe they are getting pulled over, or they try to find a safe place to park.  Either way a DUI Prosecutor will inevitably say the reason the vehicle did not pull over immediately was because the driver was affected by alcohol and their reaction time was slower because of it.  I know this is bullshit, but it still doesn't change the fact that is what a Prosecutor will argue to a jury in a DUI trial.

Lastly whatever you do stay awake when you're in the back seat of the patrol vehicle while you're being transported to take the breath test.  I know it's late at night.  You might be tired.  You might be closing your eyes because your upset.  But the second you close your eyes the DUI Officer will see that and will try and make it sound like you were passing out, or falling asleep.  Then guess what a DUI Prosecutor will use that against you.  So do yourself and your lawyer a favor and try to stay awake.

Obviously every DUI case is different and these are just a few of the main things I see that people can control.  

_
About the author:  Matthew Leyba is a DUI Lawyer in Seattle you can view his website here.  He has been repeatedly named a Rising Star among Seattle DUI Lawyers by the Seattle Met Magazine, an honor less than 2.5% of all Lawyers receive.  Additionally he is rated as a 10/10 and named a Superb DUI Lawyer by Avvo.com

Can the outcome of a high profile DUI case affect future normal first time DUI cases

Last Friday a high profile vehicular homicide case was resolved in a favorable manner for the defense.  And unfortunately for anyone else who is facing a DUI in King County the favorable result of this vehicular homicide case is going to have a negative impact on any DUI case going forward.  Why and how will this occur?  First let me explain what happened last Friday.

So in 2012 a 21 year old man from Buckley struck and killed a 16 year old boy while under the combined influence of marijuana and oxycodine.  The boy was simply walking with his girlfriend on the side of the road when this horrific accident happened.  A blood test revealed the driver had nearly two times what is now the legal limit of marijuana in his system.  He also had the oxy which was probably had the most impact on his ability to drive.  

Seems like a pretty open and shut case for the Prosecution, huh?  I mean these are the cases people are all up in arms about in Washington State.  It's why the State Legislature went on a witch hunt last year by attempting to change the DUI laws in Washington State to make them the toughest in the nation.  It's why other high profile vehicular homicide cases have been in the news, and the public has rejoiced when the defendants in those cases were sentenced to prison.  

Well this case apparently has some legal issues and the King County Prosecutors office felt like there were some proof problems.  So they offered a sweet deal where the vehicular homicide charge would be reduced to three misdemeanors.  Guaranteeing the defendant will not serve any time in prison.  So I guess good for that guy.  He was able to beat his vehicular homicide charges.  He got lucky a US Supreme Court case nullified his blood test results.  On the other side the victims family doesn't feel like justice was served and there has been a public backlash because of this (just read the comments section in the Seattle Times).  

So to get back to my original question.  Would a high profile vehicular homicide case like this, where the defendant seemingly got off, affect the normal first time non accident, non felony DUI case?  In my opinion as a DUI lawyer in Seattle the answer is absolutely yes.  And here is why?

First as a DUI lawyer if you have ever done a jury trial you can attest to the negative feelings that most jurors have in jury selection towards DUIs.  Especially in King County with all the high profile cases we have seem to be getting in the past year.  People want to get tough on DUIs.  They want the defendants to pay.  And unfortunately they cannot separate the felony homicide DUI case, from the first time offender who happened to barely blow above the legal limit.  They are out for blood and it is the first time offender who is unfortunately going to pay.  

Secondly when it gets out that a major Prosecutors office is giving away deals like this.  It hurts every other DUI case in that jurisdiction.  You think when the Prosecutor is in the news and the headline implies they weren't tough enough on a high profile King County DUI.  You think the Prosecutors office is going to take that.  No they are going to be more tough on DUIs.  They are going to show the media, the general public, and anyone else that questions their stance on this type of case that they are not easy on these particular charges.  

Unfortunately because of that I believe when a first time offender walks into Court.  In a case where there was no accident, it was not a felony, they have no prior history, and they barely blew above the legal limit.  They are now going to be subject to a more overzealous prosecution that in all honesty is completely unfair.  I fear they will be made an example of all in an effort to show the media and the general public that this Prosecutors office is tough on DUI's.  We have already kind of seen this with the change in negotiating policies in the past year or so. 

Now I don't mean to paint a bleak picture if you're reading this and currently facing a DUI charge or if you have recently been arrested and you're doing some research.  But this is certainly a side issue that whether it's fair or not will impact your case.  Having a DUI lawyer who understands that and can build a defense around it will be worth their weight in gold.  IMHO.   

_
About the author: Matthew Leyba is a DUI Lawyer in the Seattle Bellevue area of Washington State.  He has been rated as a 10/10 by Avvo.com among Seattle DUI Lawyers, and was recently named a Rising Star in the field of DUI Defense by the Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive.        

One of the benefits of a deferred sentence on a DUI possibly ending?

If you read this DUI blog with any regularly then you know there are two types of sentences imposed when a person pleads guilty.  

There is a suspended sentence and there is a deferred sentence.  A suspended sentence means the charge imposes a sentence at the time of the sentencing, but suspends all or a portion of the jail and fines and hangs over the defendants head for the period of jurisdiction.  At the end of that period the case is closed, but the conviction still exists on the defendants criminal history.  

A deferred sentence on the other hand is a much better deal.  Essentially the a defendant will still plead guilty but a Judge will not impose a sentence at the time of sentencing, and instead will defer it for a period of time.  Then at the end of that period if the defendant has complied with whatever terms the Judge set at the time of the sentencing, the defendant can take back the guilty plea and the charge will be dismissed.  

Currently this is one of the best deals out there if arrested for a DUI and the charge gets reduced to the lesser offense of Negligent Driving 1.  Most Judges, and Courts do not offer such a deal, but there are some occasions when it can be obtained.  In fact in 2012 I had 10 clients who received such a deal where the original charge of DUI was reduced to Negligent Driving 1, and the Judge imposed a deferred sentence.  

Now in addition to the benefit of having the charge dismissed.  Receiving a deferred sentence on a Negligent Driving 1 does not count as a prior offense.  Well it is debatable I guess.  Prosecutors will argue it does.  Defense Attorneys argue it doesn't.  The RCW spelling out what is a prior offense does not include the language "deferred sentence."  So based on a plain reading of the statute it doesn't count as a prior offense.  Meaning if a defendant successfully completed a deferred sentence on a Neg 1, and then within 7 years received another DUI.  That subsequent DUI would be considered a first offense.  

However there is currently a bill in the House of the Washington State Legislature proposing a change to this little loophole.  HB 1482 proposes amending the language of a prior offense under RCW 46.61 to include deferred sentences.  This is an interesting development.  I tend to not agree with such a change.  

First a deferred sentence is pretty rare.  It generally is only granted when it is a first offense, no prior criminal history, low breath test, and the defendant has completed all the assessments, and classes.  Secondly even if a Judge grants a deferred sentence, and the defendant completes it, but then gets another DUI.  The Judge of the subsequent DUI still has the discretion to treat the subsequent DUI has a second offense, in fact they could impose whatever sentence they want.  And if I had a client who was in that boat, I would probably tell them there is a strong possibility the Judge would do that, considering they were already given a break the first time around.  

In my opinion the only reason for proposing such a change is purely punitive.  Not surprisingly the sponsors of this amendment seem to be very "Prosecutorial friendly" if you know what I mean.  Hopefully this bill does not go any further, but I guess we will see at the end of this legislative session.  

_

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

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.

Why I charge a trial fee

As everyone should know by now I'm a DUI Lawyer in Seattle, WA.  A big part of practice is litigating jury trials.  In fact in my career I have litigated over 100 jury trials to verdict which is a fair amount for someone my age.  There are two reasons why I have done so many.  First in a DUI case if the Prosecutor is not willing to offer a deal and they just want a client to plead guilty as charged.  Well we know what will already happen if the client is found guilty, so they have nothing to lose if they go to trial because 99% of the time they will get the exact sentence the Prosecutor wanted in the first place.  The second reason is because I actually enjoy trial work.  A big part of my job is driving to different courts, sitting in court for hours waiting for a case to be called, negotiating with Prosecutors, and doing DOL hearings.  In all honestly that is pretty mind numbing work, so litigating a jury trial is a welcome break, and it is kind of fun.  

So when I first opened my practice I used to charge a flat fee on a DUI case because I didn't want to discourage my clients from going to trial.  In other words my fee covered every step of the legal process except for appeals.  I'm not an appellate attorney, and that style of law does not appeal to me (no pun intended).  So my fee would cover the arraignment, pretrial hearings, negotiating with the Prosecutor, motion hearings, and the jury or bench trial.

After two years I stopped charging a flat fee for everything, and I started to charge a fee for everything up to the point of a jury trial.  Then if the case were to go that far I would charge an additional "trial fee" for the litigation of the jury trial.

The reason I bring this up is because lately I have read a few blogs by some other DUI Lawyers that imply this particular fee structure is a bad thing.  And the Seattle DUI Lawyers that do this do not want to litigate a jury trial and by charging an extra fee that are effectively holding their client hostage, and if the client cannot pay then they would be forced to plead guilty.  These blogs then go on to say that a flat fee is the way to go because the client will not be forced to decide whether to pay more for exercising a constitutional right they have.

To be honest I used to feel that way.  When I first opening my practice I didn't want my clients thinking this exact same way.  I didn't want them to feel like they had to choose between paying me more or pleading guilty.  But like I said after two years I stopped doing this.  Why do you ask?

Well it is pretty simple.  I found that I was constantly refunding my clients money.  There were times where I would charge a flat fee, but then I would only go to court 2-3 times.  I would be able to negotiate a deal with the Prosecutor that my client was happy with and I didn't spend a lot of time on the case.  In those situations I didn't feel comfortable taking all the money the client paid me, so I would refund them a few thousand dollars.  I didn't think it was fair to charge them the same amount as a client that I spent 80 hours, litigated a trial through verdict, and went to court two dozen times on their behalf.

You can imagine not only the confusion but the issues this created.  Constantly trying to figure out what would be fair and then cut my client a check based on that.  So I decided that I would charge less in those cases that didn't go to trial, and charge a little more if they went.

I'm sure there are many DUI Attorneys out there that probably tell potential clients that myself and other attorneys that do this are ripping them off, afraid to go to trial, or just want the client to plead guilty and then move on.  This couldn't be further from the truth.  In fact I would venture to say that any attorney that says that probably doesn't have the trial experience I do, so it is kind of ironic they would say such a thing when my entire practice is devoted 100% to litigation and I think my track record of jury trials speak for itself.

In addition to that my fee has not risen from what I originally charged.  I simply took the original flat fee and subtracted the trial fee.  Now when I enter into a fee agreement there are two fees.  The first is the flat fee for representation on the criminal matter up to the point of a jury trial.  The second is the trial fee that is only collected if a jury trial is litigated.  If say for example the case is set for trial, and then the Prosecutor offers a plea deal at the last minute then no trial fee will be collected.

All of my fees are always completely spelled out in the fee agreement.  I would never try and deceive a client or nickel and dime them for money.  Every potential client that I speak with about proposed fees I tell them about the trial fee and the reasons for it.  And I'm willing to bet my fee including a trial fee is the same as those DUI Attorneys that are putting down the use of a trial fee.

So my question is why should a client who only has to go to court 2 or 3 times before getting offered a plea deal they are happy with be charged the same as a client that goes to court 2 dozen times and has to sit through a 3 day DUI jury trial.  If you have any thoughts feel free to leave a comment.  Remember I'm not bagging on this type of fee structure, I used to structure my contracts like that.  But I found for my practice the additional trial fee works best, and I have never had a client say otherwise or express any issues with it.

_
Matthew 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 a DUI in the Seattle area, or Western WA contact our offices for a free 60 minute consultation.  

Learn where extra DUI patrols will be in Seattle

Beginning Friday there will be extra DUI patrols in Seattle, and King County as part of the State's "Drive hammered, Get nailed."  As a Seattle DUI Attorney, I think this so called campaign has some merit to it.  Im all for protecting our community, and families.  But at the same time I believe these campaigns or extra patrols are just fronts for excessive 4th amendment violations, and excuses to conduct unlawful stops.

There was an article in the PI this week that provided statistics for last years campaign, including the number of DUI arrests.  I was pretty surprised by the number of DUI arrests last year during this campaign in King County.  Believe it or not the number exceeded 10,000.

The article also went on to say that "Drunks" drive a certain and the police encourage people to call 911 if they suspect a drunken driver.  Now I have previously written my opinion on this idea of overzealous good samaritans calling police and following suspected DUI drivers.

To me this is completely ridiculous the police are encouraging citizens to do this.  Can you imagine being on your cell phone, accidentally cross a lane of traffic, and have some pyscho follow you to your house and try and detain you by conducting a citizens arrest.  And believe me as a Seattle DUI Attorney I have had cases where these crazies have actually done that.

Now don't get me wrong, as I said before Im all for protecting our community, and encouraging people to make better decisions.  But at what costs should this be done.  I for one don't believe I should give up my constitutional right to be free from unlawful seizures just because the WSP is trying to justify their extra hires, and get more money from the government.

_
Matthew Leyba is a Seattle DUI Lawyer who practices throughout Western Washington.  If you have been falsely arrested for a DUI contact our office immediately to ensure your constitutional rights are protected.  

Helpful hints to keep in mind during SeaFair weekend

With the annual seafair weekend upon us there will be an increased emphasis in DUI patrols.  Remember the best decision to make is to not drink and drive.  But if you do have a few and find yourself in the unfortunate position of being investigated by a DUI officer here are some helpful hints to keep in mind.

If you're being investigated for a DUI then it's important to remember as much as possible about the interaction with the arresting officer to relay to your Seattle DUI lawyer. Often times during the defense of a DUI case there are no cameras or recordings of what happened. Most of the evidence comes from the police report and the testimony of the arresting officer. To challenge that evidence it may be necessary to have the only other person who was present testify. That would be the defendant.  Therefore if you found yourself in the position of being investigated for a Seattle DUI Arrest then it's important to try and take mental notes on the following areas.

Did the officer explain the reason for the stop: Many jurisdictions have seen a crackdown on drunk driving. However with such an increased emphasis many Officers are simply pulling people over for minor infractions with the intent to conduct a DUI investigation. A tell tell sign of whether this in fact happened was if the Officer initially advised of the reason for the stop or did they just start asking questions about alcohol consumption.

How much time elapsed before you were asked to exit the vehicle: Being able to remember how much time elapsed before you were asked to exit the vehicle can demonstrate whether this was the type of stop where there was no intention to cite for an infraction, but to investigate for a DUI. In order to ask a driver to exit a vehicle to conduct a DUI investigation the arresting officer needs to point to specific and articulable facts the driver may be affected by alcohol. Usually if a driver is asked to exit immediately there is no way for an Officer to note the signs of impairment necessary to start a DUI investigation.

Did you understand the field sobriety tests were voluntary: In Washington State the field sobriety tests to be taken voluntarily before they are admissible in court. Often times in DUI arrests the arresting officer just asks the driver to start performing these tests. There is no mention that they are voluntary and the driver has a right to decline them.

The area where you performed the field sobriety tests: Generally the field sobriety tests should be performed in a well light area with a relatively level surface. It's important to remember the area where the tests were done in case it was not an ideal location.

Process prior to taking the breath test: Prior to taking a breath test a subject cannot burp or hiccup or put anything in the mouth that can affect the results of the test. If you were hiccupping or burping uncontrollably and the Officer still administered the test to you that may be an issue. Try and remember any abnormalities that may have happened prior to submitting to the breath test to inform your Seattle DUI lawyer

-

Matthew Leyba is a Seattle DUI Lawyer focusing on DUI defense and other serious traffic offenses.  If you have been arrested for a DUI in Western Washington contact our office immediately to set up a free consultation with an experienced Seattle DUI Attorney.

Vigilantes and following suspected DUI drivers in Seattle

Interesting article in todays Seattle times about an ex-state patrol cadet (not an actual Washington State Patrol Trooper) mind you who followed a vehicle he suspected was a DUI while in 911.  This type of is actually pretty common here in Seattle.  I have had several cases over the course of my career where a vigilante citizen followed one of my clients suspecting they were a DUI driver, called 911, and actually made a Seattle DUI arrest.

Personally I think this behavior is a little questionable, but I realize there are people out there who have no problem calling 911 to report something they believe is illegal.  Personally I wouldn't do anything unless the suspected DUI driver was driving so recklessly or erratic it was a danger to myself, my family, and other innocent bystanders.

But often times these vigilantes go the extra step and actually try to make a citizens arrest.  Im not sure what happened in the DUI case that was in the Seattle Times about the ex-cadet stopping a council member.  But in every case that I have ever had this is what happened.  The vigilante sees what they suspect is a DUI, follow the vehicle and either call 911 or just go ahead and actually stop and detain the vehicle.  Going this extra step is what I have the problem with.

Obviously in this case that was an ex-cadet who probably didn't make the State Patrol but still wants to do that work.  Saw this as an opportunity and regardless of how unlawful it is decided to make a stop.  Now I don't know all the facts only what was in the article.  But in this Seattle DUI lawyers opinion this is unlawful behavior.

The actual case law in Washington State is pretty murky when it comes to citizen arrests.  In order for such a stop to be made the citizen needs to observe what is called a breach of the peace and it must be committed in their presence.  While Washington State has no actual law regarding DUI cases and citizen arrests it can be very ambiguous what constitutes a breach of the peace.  Is committing a traffic infraction enough of a breach of the peace for a citizen to call 911 on an individual?  The difficult thing in these cases is unless you can prove the citizen was acting as a state agency or in some capacity the 4th amendment would not apply regarding an unlawful seizure.

In case you're interested in the article here is the link.    

-
Matthew Leyba is a Seattle DUI Lawyer focusing his practice in DUI defense, and other serious traffic offenses.  If you have been arrested for a DUI feel free to call 206-357-8454 to set up a free consultation.

The importance of getting an alcohol and drug assessment early in a DUI case

So what is an alcohol and drug assessment.  It involves having the client meet with a counselor for roughly an hour and a half and be interviewed to determine whether they suffer from alcohol and or drug abuse or dependence. At the conclusion of the interview the counselor will write up a report and state whether the client has any alcohol and or drug issues and whether or not the would benefit from treatment. As a Seattle DUI Attorney having a client get this assessment done early on in the DUI process will greatly benefit them for a number of reasons.

First a Judge will require the client to get an assessment done at the time of sentencing whether it is to the DUI as charged or to some lesser offense. In other words unless the DUI charge gets completely dismissed or reduced to a traffic infraction this is mandatory. It is my opinion since the client will be required to do it anyway, it's best to get it done with and have one less thing to worry about.  Besides it looks good in the eyes of the Judge when a defendant does things before they are imposed by the Court.  

Secondly since it will be required the client might as well know what they are agreeing to. As I stated above at the time of sentencing the Judge will require the client get this assessment done. If it's not done prior to the sentencing then the client will just be agreeing to do whatever it says without knowing what it is. In other words if the client waits until after sentencing to get the assessment done, and it comes back they suffer from alcohol dependence and requires 2 years worth of treatment that is going to cost $5000 than that is something they probably would have liked to know when they were deciding whether to take a plea deal which was contingent on them agreeing to do the assessment and any follow up treatment.

Lastly the assessment can be used as a negotiation tool with the Prosecution. In my experience as a Seattle DUI Lawyer when the Prosecutor is on the fence about whether or not to offer a reduction in charges one of the factors they will consider is whether or not it's likely the Defendant will get in trouble again. If the Attorney can provide an assessment saying the Defendant doesn't have any substance abuse issues, and they are not likely to reoffend, and this Seattle DUI arrest was out of character than that is something that may sway the Prosecutor from one side of the fence to the other side.

What does Prado really mean in a Washington State DUI case

In almost all DUI cases the original basis of the stop is for a traffic infraction.  In many of those DUI cases lane travel is an issue and the underlying infraction.  RCW 46.61.140(1) defines what is a lane travel violation here in Washington State.  It states, "vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."

So here is the scenario.  A law enforcement officer is on the freeway late at night.  They observe a vehicle ahead of them.  This vehicle crosses their lane of traffic briefly and then moves back into their lane.  It may happen a second time again, then the officer initiates a stop citing a lane travel violation.  After some initial questioning the driver is suspecting of drinking alcohol and is asked to exit the vehicle.  A DUI investigation is conducted and the driver is ultimately arrested.  

This type of scenario happens every day in every part of the country.  However here in Washington State, a recent case of State v. Prado has squarely and definitely addressed the issue of whether a brief crossing of a traffic lane is a sufficient basis to conduct a traffic seizure under RCW 46.61.140 for a lane violation statute.  

That Court has found that brief incursions are to be expected when driving and therefore are not grounds for a traffic infraction as long as there is no danger to other vehicles.  Now the Prado court failed to discuss how many times a vehicle crosses a lane and for how long constitute an infraction.  And this is where most likely the Prosecution and the Defense disagree when it comes to these types of legal issues.

My opinion is the Prado court used two very important terms when reaching its decision.  The first being the word "brief" and the second being the word "incursions."  The definition of brief is "of short duration."  The word "incursions" is plural meaning more than one.  Therefore I believe if the lane violations are brief in duration, and are more than once than the Prado case applies.  The Prosecution on the other hand always argue that the facts in Prado are what control, and in that case the lane violation only occurred once and it was for one second.  Anything more is inapplicable.  This thinking in my opinion is incorrect and should always be challenged.

Recently I had a case with this very same scenario.  Fortunately for my client and me the Judge ruled our favor and found the terms "brief," and "incursions" meant brief in time and more than one.  If you have been stopped for a lane violation statute and were subsequently arrested for a DUI its important you speak with a Seattle DUI Attorney immediately, contact my office to set up a free constitution and ensure your constitutional rights are protected.  

WSP gets clever to nab speeders and aggressive drivers

The Washington State Patrol launched a pilot program today to crack down on speeders and aggressive drivers using new and improved strategies.  This is modeled after the Target Zero DUI task force which also employs the Washington State Patrol in an effort to crack down on DUI offenses in Washington State.

This new task force for speeders in going to be focused on certain areas that have been known to have increased speeding infractions and other known problems.  This will be based on prior offenses that is kept in a database.

In my opinion this will be yet another way to get around pre textual stops for DUI related investigations.  WSP is not stupid, and they know the best way to arrest those accused of DUI is for minor traffic infractions.  The problem with that is it can be unlawful to stop someone for a minor infraction with the intent to conduct a criminal investigation without any reasonable and articulable facts of criminal activity.

Often times in a DUI cases that happens when somebody gets pulled over for allegedly committing an infraction.  The officer smells an odor of alcohol, and immediately asks the driver to exit the vehicle.

To read the article click here.  Remember if you have been arrested for DUI and you feel you were unlawfully targeted, then it is of the utmost importance to contact an experienced DUI Attorney to ensure your constitutional rights are protected.  

Marijuana legalization impact on DUI law in Washington State still unclear

I recently read an article from the Seattle Weekly that discusses the impact Marijuana legalization would have on DUI laws in Washington State if I-502 is passed.  As a Seattle DUI Attorney this is something I have been following and quite interested in.  The gist of the article discussed if Marijuana was legalization what would the legal limit be, and how it would be enforced as a DUI.

I-502 will be on the ballot this November in Washington State.  In addition to legalizing Marijuana it would also set a limit of 5 nanograms of THC per milliliter of blood for drivers over 21, and zero tolerance for minors is proposed. This 5 ng/ml figure is supposed to be similar to the .08 standard currently in place for alcohol related DUI offenses.

Currently in Washington State if someone is arrested for DUI and Marijuana is believed to be the substance that has impaired the driver there is no specific amount of Marijuana in the system, like with alcohol and a .08.  However there are certain levels where the Prosecution can call in an expert and have them testify about how a person might be affected at that level.

Other states with "per se" Marijuana DUI laws are discussed in the article as well.  Its interesting that Nevada Marijuana DUI arrests rose, will Ohio Marijuana DUI arrests decreased when a per se limit was imposed.  From Seattle DUI Lawyer perspective these are interesting statistics and I guess that just goes to show how uncertain all of this information is when it comes to Marijuana.

If you're interested in reading the article.  You can view it here.

When in doubt listen to your client on their DUI case

This week I had a jury trial in Seattle on a DUI case.  After 2 hours of deliberation the jury found my client NOT GUILTY.  Throughout my career I have litigated almost 125 jury trials, which not many Seattle DUI Attorneys out there than can say.   But one thing I have learned from all those trials is to listen to your client and trust your gut.

This particular case I had was a pretty good case for us.  My client performed reasonably well on the field sobriety tests, his driving wasnt bad, and he didnt provide a breath test.  But the interesting thing about this case was my client turned down an incredible deal from the Prosecution.  A deal that would not have resulted in any jail, license suspension, ignition interlock requirements, SR 22 insurance, probation, and only a nominal fee.  He would not have had a DUI conviction on his record and he potentially would have been allowed to ask a Judge to vacate the charge off his record after 5 years.  

My goal in every DUI case I take is to try and get the charge dismissed, but if that cant happen then to try and get this exact same deal my client turned down.  Needless to say I thought he should have taken the deal, and I even told to strongly consider it.  But when he told me that he didnt think he was guilty of anything, and his trusted me at trial.  Well I was sold at that point, and I did everything I possibly could not to let him down.  

Of course it was an incredible risk to go to trial.  As I stated before juries are a fickle group.  Even though you get to ask them questions, and you get to pick some of the jurors to hear the case, and you get to have some control over who will ultimately judge your client.  It really is just a crap shoot.  There certainly have been times when I have gone to trial expecting a certain result and the exact opposite has happened.  Any any experienced trial attorney will tell you the same thing.  So you never want to expect or bank on a certain result when a case goes to trial.  Especially in criminal cases that are emotionally charged, like DUIs.

But in the end my client was right to believe in his case, and I feel honored that he had enough faith in me and my abilities as a DUI trial attorney to risk it all.  I was extremely nervous to try this case considering all that was at risk.  Plus the fact that my client turned down a great deal added to the pressure.  He was expecting a certain result, and he expected me to come through for him.  

When we got word that a verdict was in I remember I started to feel the butterflies in my stomach.  In fact I cant remember the last time I ever felt the combination of nerves and excitement at the same time.  Probably on my wedding day.  When the jury read the verdict it seemed like everything was in slow motion.  But when I heard the words NOT GUILTY a flood of emotion came over me.  I have never cried at a verdict, but I was pretty darn close in this case.  I remember my client looking at me, putting forth his had and telling me thank you.  And I have to say knowing I changed his life, and helped him in his time of need made me feel pretty good.  At that moment Im glad he chose to proceed that way, and now he has no criminal conviction on his record and he can move on with his life.  Just a great week for the firm.

On a side note.  When the Jury was walking into the courtroom prior to reading the verdict, several of them were smiling and laughing with the bailiff.  I remember thinking to myself these people are either completely cold about what they are going to do to my client, or they are going to walk him and they feel good about it.  Turns it was the later of the two.      

Advice from Roadhouse the movie that will help with your DUI case

The other night I watched the movie "Roadhouse," with Patrick Swayze.  This is a great movie from the 80's.  Ive seen it probably a dozen or so times.  It usually comes on late at night on TBS or TNT.  If you havent seen it, I highly recommend you watch it.

If you follow this blog you know this is a Seattle DUI Attorney blog that discusses all DUI related info, and news.  Its a hodgepodge of anything and everything I think about DUI related.  So why am I talking about "Roadhouse."  Well its very simple there are some great quotes in there that I think are applicable to DUI cases.

If you google DUI blog, or DUI news, or anything informative thats DUI related.  You will get a lot of information on how to beat a DUI charge.  Typically those involve not answering questions.  Not doing the field sobriety tests.  Asking to speak with a DUI Attorney.  But what you dont typically see is how to not lose a DUI case.  And this is where "Roadhouse," comes in.

There is this scene in "Roadhouse," where Patrick Swayze, aka Dalton is about ready to start his first night at the Double Duece.  He is the worlds greats "cooler," or lead bouncer for those who have never seen it.  So he is sitting there about ready to start his night, and he is talking with the other bouncers.  Telling them how they should act, what he expects, how he anticipates the night to go.  During this time he discloses his three rules to being a good bouncer.  The last rule is whats pertinent to this blog.  Here is the dialogue:


Dalton: Don't worry about it; all you have to do is follow 3 simple rules: One, never underestimate your opponent..expect the unexpected; Two, take it outside, never start anything inside the bar unless it's absolutely necessary; and Three...be nice.
Hank: [Incredulously] Come on!!
Dalton: If somebody gets in your face and calls you a cocksucker I want you to be nice
Hank: [With resignation] Ok
Dalton: Ask him to walk, be nice, if he won't walk, walk him, but be nice, If you can't walk him, one of the others will help you and you will both be nice...I want you to remember, that it's the job, it's nothing personal.
Steve: Being called a cocksucker isn't personal?
Dalton: No, it's two nouns combined to elicit a prescribed response
Steve: What if somebody calls my Mama a whore?
Dalton: Is she?


Remember if you have been arrested for a Seattle DUI.  Follow this one simple rule.  Be Nice.  The quickest way for you to lose your DUI case, or hurt your chances at getting a positive outcome is to be rude to the arresting officer.  Hey I know you're pissed.  You're angry.  But do your best to keep your emotions under control, and Im telling you it will help not only chances of beating the charge, but will also help your DUI Attorney. 

Recent 3.6 hearing on a Seattle DUI case

Last week I had a 3.6 hearing on a DUI case in Seattle Municipal Court.  For those of you that dont know what this is.  A 3.6 hearing is a hearing where a motion is argued to suppress or exclude pieces of evidence in a DUI case.  This can range anywhere from a basis for the stop, to the field sobriety tests, to the breath test.

Now Im not the kind of attorney that has to blog about every time Im in trial, or every time I litigate a motion.  To me this is just part of my every day practice, and I think that attorneys that do that just suffer from a lack of self esteem, and they need constant affirmation they are doing a good job.  In my opinion if you need constant affirmation you're doing a good job then you're doing this for the wrong reasons.  But this is another topic for another blog.

What I wanted to discuss is a case called State v. Mackey.  This is a Washington State Court of Appeals case which was argued in Division 3.  The facts of this case are: Mackey observed changing lanes without signaling.  He was observed drifting across the left yellow line, and drifting across the right lane divider.  After the Trooper activated his lights to initiate a stop, Mackey continued to drive an unusually long distance before coming to a stop.  Upon approaching the vehicle the Trooper observed furitive movements within the vehicle.  Upon contact the Trooper noted a strong odor of alcohol, there was admission to drinking, Mackey's eyes were bloodshot and watery, and he had difficulty locating his license, and then he had difficulty extracting it from his wallet.  In the opinion the Court of Appeals held "indications of intoxication can include coordination problems, an odor of alcohol, slurred speech, bloodshot eyes, flushed face, and disarrayed clothing."

Now this case is often cited by the Prosecution as what constitutes a basis to ask a driver to exit a vehicle based on reasonable suspicion the driver is impaired by alcohol to make a Seattle DUI arrest.  But what is often overlooked is the number of signs that exist in this case.  The driving, the odor, admission to drinking, bloodshot watery eyes, difficulty finding license, difficulty removing from wallet.  To me that seems like a lot of signs of impairment to give an officer a reasonable suspicion the driver might be impaired.

But what happens when none of those signs exist in a case other than odor and an admission to drinking very little alcohol.  I mean after all it is not illegal to consume alcohol and drive.  Long story short a Judge disagreed with me on this issue.  What do you think?

Remember if you have been contacted by law enforcement, ask to speak with a Seattle DUI lawyer immediately after arrest.

Washington State Supreme Court affirms right to independent blood test

The Washington State Supreme Court has thrown out a man's DUI conviction because it was never proven that he was advised of his right to have an independent blood test at this own expense in Spanish.

The Implied Consent Warning is a something that is read to DUI suspects prior to law enforcement asking them to submit to a breath or blood test.  The warning outlines what happens to a persons license if they take the test and its over the legal limit or if they decline the test.  It also also informs them if their license gets suspended they may be eligible for an ignition interlock license, and they have the right to have additional tests administered by any qualified person of your own choosing.  In other words the DUI suspect as a right to have an independent test done at their own expense.  Such a test may be introduced at trial.

In the Washington State Supreme case, the defendant was convicted of a DUI and hit/run.  During the arrest the Trooper had an interpreter read the implied consent warning to the defendant.  However at trial the interpreter was never called to testify and therefore it couldn't be shown whether the defendant was advised of the right to an independent blood test..

To read about the case click here

How a DUI arrest can affect a commercial drivers license

A DUI arrest can have many consequences, both direct and collateral.  Everyone knows that a DUI carries jail, fines, alcohol treatment, probation, ignition interlock device requirements, and personal license suspensions.  But if you're a holder of a commercial drivers license (CDL) you face a loss of that license in addition to your personal license.

What I would like to discuss is what happens to a CDL after a DUI arrest in a personal non-comercial vehicle.  From previous blog posts anytime a person is arrested for a DUI they most likely will face 2 legal actions.  One is with the Washington Department of Licensing, and the other is from the Judicial system.  Depending on what happens from either of those legal actions, a CDL holder may be affected.

So lets take a closer look at what happens at the DOL hearing.  First if you win the DOL hearing then there is no CDL disqualification.  If you lose the DOL hearing and its your first violation under RCW 46.25.090(1) then you face a 1 year license suspension.  If you lose the DOL hearing and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.

Now lets look at what can happen in the criminal case.  In a criminal case for DUI charge a person basically has 5 different things that can happen to them.

First if you beat the DUI charge in the criminal case then no CDL disqualification.

Secondly if you get convicted of the DUI and its your first violation under RCW 46.25.090(1) then its a 1 year CDL disqualification.  If you get convicted and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.

Thirdly if you get the DUI charge reduced to reckless driving and you have a prior serious traffic violation within 3 year you will face a 60 day CDL disqualification.  If you have two or more prior serious traffic violations within 3 years then its a 120 CDL disqualification.

Fourthly if you get the DUI reduced to negligent driving then there is no CDL disqualification but it will count as a prior serious traffic offense.

And lastly if you're considering a deferred prosecution from my reading of the statute it is unclear who this will be treated by DOL.  It is clear that a deferred prosecution will not stay the disqualification of the CDL in the DOL hearing.

If you have been arrested for a DUI, and you carry a CDL its important to speak with a DUI attorney that not only understands, but can help you navigate the waters of the CDL and disqualification.  Remember many attorneys out there claim to be DUI attorneys, but reality they are pretenders.  Contact my office today to schedule a free 60 minute consultation that is completely confidential to discuss your options and rights when facing a DUI arrest.

Leyba Defense PLLC | Seattle DUI Firm

Boating under the influence (BUI) in Washington State

Lately I've had several people call me about representing them in BUI charges here in Washington State.  For those of you that dont know a BUI charge is nothing like a DUI charge, except for fact it involved alcohol.  For starters a BUI charge is only a misdemeanor, and it doesnt carry the mandatory penalties that a Washington State DUI does (jail, fine, license suspension).

What I wanted to talk about today is the coast guard hearing that sometimes accompanies the BUI charge.  Similarly in a DUI charge there is a civil hearing to determine civil penalties (a license suspension, a BUI arrest could result in a civil hearing to determine the civil penalties.

So after a person gets arrested for a BUI charge, that information can get forwarded to Coast Guard.  A coast guard civil penalty hearing officer will review the report alleging that you, the operator of a vessel could be liable for a civil penalty for violation of Federal law.  Usually its several months up to a year after the BUI arrest before you would hear anything.

The role of the officer is read the case file, determine if there was a violation, and then decide the civil penalty.  In a typical BUI case, the max penalty is up to $7000.  If the officer determines there was a violation that will send you notice of this along with the findings, a report, and their recommendation for the civil penalty.

At this point the party typically has three options.  First then can pay the penalty which will result in the case being closed.  Secondly then can respond with written evidence, typically a statement, or witness declarations.  Lastly they can request an in person hearing, where they would appear with an attorney and argue the arrest was not a violation and therefore no civil penalty should be imposed.  Conceivably there is a fourth option where a person can ignore the letter and penalty request.  If that occurred the case would be sent to collections.

So what takes place at this in person hearing should the party wish to challenge the allegations.  The hearings themselves are pretty informal.  Federal law applies, and the hearing is administrative so the rules of evidence and other statutory objections are inapplicable.  The hearing officer would hear testimony, consider any evidence, and arguments presented.  I guess its kind of a like a trial, without the formal rules.

After the hearing if the Coast Guard hearing officer rules against the party then they must pay the civil penalty.  If they rule in favor, then the case is closed.  There is also an appeal process, should that occur, the Coast Guard officer will send in the complete record to the Commander, and the appeal will be decided by that person.

I realize its not summertime, and SeaFair weekend, but if you have been charged with a BUI or if you were arrested and your charges are now being filed, please contact my office immediately to set up a free consultation.  And also dont forgot about the possibility of the civil coast guard hearing when deciding on a resolution in the criminal BUI case.

Leyba Defense PLLC | DUI and BUI Defense