Another Seattle vehicular homicide case is over

There has been plenty of King County DUI news in 2013.  I will forever remember this year for the horrific DUI crashes in King County, the repeat high profile DUI offender vehicular homicide cases in the news, and the toughening up of DUI laws by the Washington State legislature in response to those DUI cases.  I recently wrote about the Mullan DUI case and how he pleaded guilty last week effectively ending the criminal DUI case in Seattle.  Well another vehicular homicide case pleaded guilty this week effectively ending that Seattle criminal DUI case.  

A Kirkland woman who was under the influence of alcohol and a prescription drug when her minivan collided head-on with a car occupied by four people, killing an elderly woman, was sentenced Friday afternoon to nearly 11 years in prison.  The Seattle Times reports that Kelly Ann Hudson, 43, pleaded guilty to vehicular homicide, vehicular assault and reckless driving in September.  In the plea deal she took responsibility for her actions and even though she had no prior criminal history she pleaded guilty as charged.  

Like the Mullan case it appears that Hudson took responsibility for her actions following that horrific DUI crash in King County.  She didn't put the victims family through a long jury trial and accepted what she did and took her medicine.  I doubt the victims family takes any solace in this but as a practicing DUI lawyer in Seattle I can tell you that decision does not come lightly and the fact she pleaded guilty as charged says a lot about the case.  

Yes she killed these people.  Yes she committed a horrific crime.  But in terms of her plea deal there was nothing more she could have done.  Sometimes when you read the comments of the Seattle Times article I get the feeling that people just don't understand how the criminal justice systems works.  Some people are upset she only got 11 years.  Some people are saying she didn't take responsibility for her actions.  

Well as someone in this area of law who practices DUI Defense in Seattle.  Let me tell you there was nothing more she could have done.  She pleaded guilty as charged.  She can't plead any more guilty that than.  She was sentenced to the high end of the sentencing range.  A range that she doesn't get to pick but one that is set by the Washington State legislature.  So in other words there was nothing else she could have done in terms of her criminal case in that court room in Seattle.  

Maybe some view her apology as insincere.  I wasn't there so I have no idea.  But in terms of her criminal case, her sentence, and her plea deal she took responsibility.

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About the author: Matthew Leyba is a practicing DUI lawyer in the Seattle Bellevue area of King County.  He is rated as a 10/10 by Avvo.com, and was named a Rising Star among Seattle Bellevue DUI lawyers by the Seattle Met Magazine, an honor less than 2.5% of all Attorneys in Washington State receive. 

Another DUI Prosecutor arrested on a DUI case

Another DUI Prosecutor has been arrested for a DUI in Washington State.  Last week I blogged about a Prosecutor who pleaded guilty in their own DUI case.  Not to embarrass that particular Prosecutor due to the arrest, but to show what someone experienced and knowledgeable in DUI law would do when it comes to the field sobriety tests and the breath test.  Decline them.  

The purpose of this post regarding this recent DUI Prosecutor facing a DUI charge is not to embarrass, or even show what they did regarding the tests, but to show you a DUI arrest can happen to anyone.

I'm a DUI Attorney in Seattle for a couple of reasons.  First DUI Defense is an area of the law I thoroughly enjoy.  It has the criminal aspect which usually invokes constitutional issues that I dig, but it also has a scientific component that I find challenging.  Secondly I enjoy trial work.  You don't litigage over 100 jury trials unless you love going to trial, and DUI defense affords me that opportunity.  Lastly a DUI arrest can happen to anyone.  Unlike other criminal cases, most people charged with a first DUI are generally very good people who happen to make a mistake, not a hardened criminal.   

Which brings me to my point.  This DUI Prosecutor made a mistake.  Obviously they are more familiar with the DUI laws than the general public.  So maybe they should have known better and known there is no such thing as a legal limit when it comes to drinking and driving.  But nevertheless they made a mistake and now they are facing a DUI charge.  They are now in the position of the very people they Prosecute that has to be tough situation to be in.  Again my point is if a DUI Prosecutor can get arrested for a DUI, than anyone can.  It doesn't mean they are a bad person, they just simply made a mistake.

And by mistake I don't mean anything egregious by that.  Sometimes people just have a glass or two of wine at dinner, a beer watching a football game and they don't realize they are at the legal limit or even below it and they get arrested for a DUI.  Heck sometimes people are seated inside their vehicle waiting for a cab and they don't realize this is potentially illegal and they get arrested for a Physical Control.  People make mistakes sometimes not even realizing what they are doing is illegal.     

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About the author: Matthew Leyba is a DUI Lawyer in Bellevue.  His practice focuses on representing those charged with DUI and other traffic offenses.  He has been rated as a Top DUI Attorney in Seattle by Avvo, and is named a Rising Star in DUI Defense by Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive. 

Utah Trooper faces lawsuit for making bogus DUI arrests

In case you don't follow my other blog dealing with National DUI news and Information, I want to post my thoughts here on Utah Highway Patrol Trooper Steed and some issues that are occurring back in the great State of Utah.  

If you don't know I'm originally from Salt Lake City, Utah (Go Utes!).  So I follow news from Utah pretty regularly.  As I noted above, I have posted updates about Trooper Steed on my other DUI blog, but want to discuss it here today.

In case you don't know Trooper Steed is a Trooper with the Utah Highway Patrol.  During her 10 years with that Department she built the reputation as the best DUI cop in Utah.  As of today she is out of work and facing a lawsuit.  So what happened to her?  Someone who was seen as a rising star in the law enforcement.  Someone who her supervisors described as having an "uncanny ability to detect drunk drivers."  Someone who in 2009 as a member of the DUI squad shattered the record for most DUI arrests in Utah, more than double the number made by another other Utah Highway Patrol member in the history of the department.  

One word: Accountability, or I guess the lack thereof.  Lets be honest being a police officer has to be one heck of job.  Long hours.  In some cases low pay.  The general public has a certain disdain or distrust for you.  Defense Attorneys are always criticizing and challenging your work.  If you mess up it's on the front page of the news.  I know several officers here in Seattle, and although I'm a Defense Attorney I certainly can respect the work they do.  It seems to me to be like a thankless job for the most part.  

But I think the reason law enforcement has such a bad rap is because of what the general public views as a lack of accountability.  Think about it.  If a cop pulls someone over, makes an arrest, documents certain statements or observations of the suspect.  Who is to say this really happened?  I know cops sign an arrest report under penalty of perjury, and blah blah blah.  But many law enforcement agencies still do not have audio or video capabilities.  Even if the agency does have that capability, not all the officers use it.  Or the cameras are out of position.  Or the mic is not working, or in some cases left off.  Or some other excuse is made.

I can't tell you how many times I have represented someone who adamantly denies something the arresting officer is saying happened.  And how do you challenge that?  You can question the officer.  But if they made something up, or fabricated something, or even embellished it a little they are for the most part not going to deviate from that.  You can have the client testify, but in the end who is a Judge, or Jury going to find more reliable most times.  The cop.  So it is always a difficult position to address when it is one persons word against another.  And the other person happens to be a cop.

But every now and then a cop is caught in a lie, or an inconsistency and everything changes.  Such is the case with Trooper Steed.  As I wrote above she was a rising star with the DUI squad in the Utah Highway Patrol.  Shattering records for arrests, winning awards, etc.  But in the end what derailed her career is the lack of accountability that exists with such officers.  And probably her greed to become known as the Best DUI cop in Utah.  

And it all started with a routine motion to suppress evidence where she admitted on the stand that she left her mic off while on a DUI arrest.  To her credit she admitted to this.  I have had cases in the past where certain officers will swear up and down the mic was malfunctioning or the video was lost in magic land.  I never ceases to amaze me the elaborate tails these cops will weave just to avoid answering a simple question.  But when Steed did this her credibility instantly came under question.

You see there was a long standing rumor in Utah that Steed was fabricating observations she made on her DUI arrests.  Ridiculous things like flat out saying a person was impaired when a breath or blood test would show .000.  Making a DUI arrest when there was absolutely no evidence, and then just flat out making things up in the arrest report.  And nobody was ever the wiser, because there was no way to document what really happened, when it was just her word against the suspect.  

However like all things eventually the truth comes out and many of her DUI arrests were flat out dismissed or not filed due to her penchant for "stretching the truth."  In fact in 2010 a Prosecutor flat out told every Defense Attorney in Utah, and every news outlet that he would not prosecutor any cases where Steed was the primary officer, and the only evidence that existed were her observations.  But think about all the people she falsely arrested prior to this slip up in 2010.  

I can't fathom going through that.  Having the stigma of a DUI driver.  Hiring an attorney.  Going to court endless and stating your innocence and not having the Prosecutor, the Judge, or the very law enforcement agency who is supposed to protect you, believe your story.  That is why I do what I do.  So I can help people in these situations.  Thankfully to those attorneys in Utah, her truth stretching was uncovered and justice is being done.    

In case your interested here is the Steed article.  Read up.  

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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 alcohol related offenses.         

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.

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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.  

DUI limit really more of a guideline for state troopers in Washington State

I came across this article earlier this week from MyNorthwest news.  The author follows a State Trooper who is a member of the target zero task force on a ride along.  The Trooper arrests an individual in Ballard, Seattle for DUI.  It talks about what happened, what the law is, blah, blah, blah.  Pretty standard article dealing with this subject matter.  But as I was reading this article I was struck by this statement the Trooper made regarding his philosophy on arresting individuals for DUI in Seattle.

Trooper Brock, the arresting officer states, "I [couldn't] care less about what they blow; if they're below the legal limit, at the legal limit or five times the legal limit," said Trooper Brock, who is member of the Washington State Patrol's Target Zero Team. Their goal is to reduce deaths on the roadway.  I don't worry about what's going to happen six months or a year down the road in court," he said. "I know when I go home every single shift that if I took someone off the road, I'm 100 percent positive they were not supposed to be driving a car."

So there it is.  If you smell like alcohol, you will get arrested.  Regardless if you consumed 20 shots of tequila (which would be very impressive) or whether you had half a glass of wine.  Troopers around this State don't care what your legal limit is.  This is something that I have written before on my blog, but it's worth noting again.  If you have had 1 drink you will get arrested.  The police do not care about the legal limit and whether you're over it.

I can't tell you how many people I have met with that simply just don't understand how they can be arrested for a DUI when their breath or blood test is below the legal limit.  Heck I have represented a client before on a Seattle DUI arrest with a .03 breath test.  Based on this particular Trooper's statement law enforcement simply do not care what your alcohol level is.   

Now why is this important to note.  How many times do I meet with people who say, "well I only had 1 drink, I thought I was ok to drive.  I thought I would pass all the field sobriety tests."  What this article reveals is you can pass all the field sobriety tests.  You can honestly tell the arresting officer you only had 1 drink.  But you will still get arrested.  You will still get taken to the police statement.  You might be booked into custody and spend the night in jail.  You will still have to shell out at least $5K for an attorney.  You will have to go to court and be subject to the humiliation and embarrassment of being a defendant in a criminal case.  And the kicker is even if your DUI were to get dismissed, you still go through all this.  

Anyway.  Here is a link to the article if you're interested.

http://mynorthwest.com/?nid=11&sid=1146480

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Matthew A. Leyba is a DUI Attorney in Seattle, WA.  He is the owner of Leyba Defense PLLC, a boutique Criminal DUI Defense Firm in downtown Seattle.  If you have been arrested for a DUI in Washington State contact our office for a free consultation.   

New Thermal Imaging System Could Help Detect Drunk People

I recently ran across an article that discusses a new use for old technology when it comes to alcohol, people, and DUI arrests.  In a paper that was published by Greek scientists it may be possible in the near future where thermal imaging may be able to detect individuals have has consumed alcohol.

How does this work you ask?  Well pretty interesting.  Apparently these scientists are in the process of developing new algorithms that will gather date about the blood vessels in an individuals face.  You see when a person consumes alcohol often times their face will become flushed, or rosy, or even red faced.  The reason this occurs is because the blood vessels in their face are becoming dilated due to the increased alcohol intake through the blood.

What these scientists hope to do is capitalize on these increased blood vessels because this will cause the individuals face to increase in temperature.  And thus thermal imaging can detect that increased temperature that is different or higher than the body temperature.

This paper then goes on the describe how this process can be used by police departments.  It is silent on exactly what would the police use this for.  But as a Seattle DUI Attorney I can only imagine the problems with this.  Imaging going to a bar or restaurant.  Having a single drink or perhaps even two.  Keeping mind it is not illegal to consume alcohol and drive.  It is only illegal if your ability to drive is lessened in any appreciable degree or if you are over the legal limit.  Then imagine police positioned on street corners shooting these thermal imaging guns at individuals.  Seeing the increased temperature in their face.  Assuming they are drunk and then pulling people over to investigate for DUI and other alcohol related offenses.

I dont think I need to harp on the potential 4th amendment violations that would occur from these.  Here in Washington state, the 4th amendment is afforded greater protections than the federal constitution.  So I doubt this would ever occur here, since we don't even allow checkpoint stops by the police.  But it is scary to think this type of technology can be used.  Again as a Seattle DUI Attorney, I hope it doesn't come to this.  We have enough issues with unlawful 4th amendment seizures due to overzealous police investigations.

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

The importance of hiring a DUI Attorney when charged with a DUI

This may seem pretty self explanatory.  If you're charged with a DUI, then you want to hire an attorney that specifically and exclusively practices DUI defense.  I mean if you needed open heart surgery you wouldn't go to a general practitioner would you?  The same thinking applies here.

The reason I bring this up is because I have met 2 clients or potential clients I guess looking for representation on a DUI case.  When I met with them, both of these individuals were completely misinformed about DUI laws, and specifically what their options are.  As a Seattle DUI lawyer I practice exclusively in the area of DUI defense, so it is pretty easy for me to explain what your options are, Im up to date on the recent law changes, and Im familiar with individual courts, and prosecutors and I can probably give you a reasonable idea of what may happen with you case.  If you're not a DUI lawyer than you probably cant do that.  Just like I cant tell you would the recent laws are on environmental litigation.

Now going back to these two individuals.  One person met with a family law attorney.  This was a first offense, the individual was under 21.  The family law attorney told the client about a deferred prosecution, told them that is what they should do, and then completely misinformed them about how to do it.  If you know me, or read this blog at all you will know that I rarely recommend a deferred prosecution, but especially in this circumstance.  As a general rule you never have someone do a deferred on a first offense, but you never do one when you're that young.  You only get one per lifetime, you have to be found to be alcohol or drug dependence, and you have to agree to complete a 2 year alcohol and drug treatment program and be monitored by probation for 5 years.

The other individual I met with had previously met with a general practitioner attorney.  Someone that does a little bit of everything I guess.  In this case the client had actually blown under the legal limit, so there would be no need for a DOL hearing.  However this attorney told them they had to have a DOL hearing, and tried telling the client it would be easy to win because they were under the legal limit.  Im not sure if this was some kind of scam to overcharge the client, or if the attorney honestly thought a DOL hearing was necessary.  But again, this was completely wrong advice.  Nothing bad would have happened had the client paid the $200 and sent in the hearing request form, but if this attorney makes mistakes on something so simple, imagine what would happen when more complicated issues arose.

Now Im not trying to bag on these attorneys.  These most likely were honest mistakes.  I mean if someone came to me wanted me to draft a will, or sue some major corporation I wouldnt try it.  To be honest I would screw something like that up.  Even though Im a lawyer and I went to law school, I just dont know anything about these areas of the law.  My philosophy on a lawyer practicing in every area of the law is that is just not feasible.  There is no way that a lawyer can know everything about every area and facet of the law to be competent.  It is simply impossible.  This is why doctors commonly refer patients to specialists or other physicians in certain areas of medicine.  Nobody knows everything, and the same things applies in Seattle DUI Defense.

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Matthew Leyba is a Seattle DUI lawyer in Western WA.  His practice focuses exclusively on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI contact our office for a free no hassle 1 hour 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.

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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.  

Why it's important to become qualified to administer the FSTs

Representing those accused of DUI is a very complicated process. The competent Seattle DUI Attorney needs to be familiar with constitutional issues, scientific theories, trial techniques, and much much more. However in addition to those basis skills, the experienced Seattle DUI Lawyer should also be qualified and certified to administer the standardized field sobriety testing. In other words they need to take the same course the law enforcement does, and learn the proper procedures for administering the standardized field sobriety testing.  Why is this so important you ask?    

In order to accomplish this the attorney should know how to administer the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. These are the field sobriety tests that have been standardized by the national highway safety administration. In my opinion this is important for several reasons and are well worth their weight in gold compared to the nominal cost and time frame.  

1.  Verify whether the arresting officer administered correctly: In many Seattle DUI arrest cases the arresting officer administers the standardized field sobriety tests to the defendant. And in all of those cases the officer will say they are trained to administer these tests, and they were done according to their training. In order to verify whether these tests were done correctly or not, the Seattle DUI Attorney needs to know who to administer the tests themselves. If they know exactly how to do it, and they took the same course as the arresting officer they will be in a better position to identify any issues with the administration of the tests.         

2.  Help to separate yourself from all the other DUI Attorneys: In every jurisdiction there are attorneys that say they exclusively practice in the area of DUI Defense. And like in all professions there are good ones and there are bad ones.  But what separates the good ones from the pretenders is the level of commitment to this area of law in addition to their experience and knowledge. By taking the time and expense to take this NHTSA course, and learn exactly how to administer the field sobriety tests it will show a level of commitment and experience that will help you get clients.           

3.  Know the instructors and use them as experts: Many of the instructors of these NHTSA courses are former law enforcement. Sometimes in a DUI case it is necessary to hire an expert to counter what the Prosecutions witnesses are saying. Having an ex-law enforcement officer who is also an instructor for the field sobriety testing and really helpful, and comes across very credible in the eyes of a jury. By taking the course, and getting to know the instructors you will be in a better position to ask them to help you out on a case.

Taking this course is extremely important to the practice of DUI defense.  If an attorney doesn't take the time to do this then they don't care about their practice, and in turn don't care about you.  

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Matthew Leyba is a Seattle DUI Attorney located in downtown Seattle.  If you have been arrested for a DUI contact our office for a free consultation to learn what your options are, and what to expect during the DUI charge.  

New DUI laws in Washington State effective 8/1/12

Once again Washington State DUI laws will be changing.  Some good, some bad.  Below are a few of the highlights, or lowlights depending on how you view this.  On 3/29/12 Governor Gregoire signed the following into law under SHB 2443, and they will become effective 8/1/12.  So without further adieu here you go.

Increased penalties for DUI's where a child is in the vehicle: Under this new law if a child is in the vehicle during a DUI or Physical control then it must be documents by the arresting agency, and Child Protective Services must be notified.  Additionally the definition of a child increased to 16 years old.  Penalties also increased with more fines, and additional 6 months of an ignition interlock device.  So bottom line, if you have a few drinks on a Saturday night dinner with your family, and you get stopped for a Washington State DUI and you have kids in the car.  Be prepared for increased penalties, and a more zealous prosecution.

Eligibility to remove a DUI conviction from your record: If you're convicted of a felony DUI, or Physical Control conviction then you can never have that vacated off your record.  Also if you get a DUI reduced to a lesser offense (i.e., Reckless Endangerment, Reckless Driving, Negligent Driving 1) and it counts as a prior offense then it cannot be vacated if the person has a subsequent alcohol and/or drug violation within 10 years.  It used to be a long shot to get these vacated after 5 years, but now it appears people have to wait 10 years.

Increased cost of Ignition Interlock License: The cost to have this type of license will increase an extra $20 a month to help pay for indigent people

Reckless Driving suspension credit: It used to be that if your license was suspended administratively by the DOL, and then you got the criminal DUI case reduced to a reckless driving there would be an additional 30 day suspension on top of whatever the DOL administrative suspension was.  Now you can get a credit for the 30 days from the administrative suspension.  In this Seattle DUI Attorneys opinion this is a good change of the law.

Electronic home detention conversion: This area of the law used to always be kind of murky, and varied depending on the Judge.  Previously if a person was convicted of a DUI and they faced a mandatory home detention sentence, there was no explicit law that would convert that EHM time to jail, if the person wanted to just serve their sentence in custody.  Now there is.  So if you get a 60 day home detention, then this can be converted on a 15:1 ration.  You now would do an extra 4 days in jail.  This is a good change in the law.

Eligibility for out of state IIL license: It used to be that in order to be eligible for the ignition interlock license you needed a valid Washington State drivers license at the time of suspension.  Now a driver who is otherwise eligible for an ILL, but does not have a Washington state license can now be eligible for the IIL.

Remember if you have been arrested for a DUI, its important to contact a Seattle DUI lawyer immediately to ensure your constitutional rights are protected.  Visit our Seattle DUI Law Firm website to learn more.

Leyba Defense PLLC firm update

For those that follow the blog, I apologize for not making any posts the past couple of months.  Its been very busy, which is good for business, but the downside is I don't have much time for blogging.  It seems like every week, Ive been in court every day.  Or on days when I don't have court I've had jury trials scheduled that I need to prep, so I use that time for putting together my trial notebooks and things like that.

So here are some of the highlights of the past 2 months.  And again this is not meant to toot my own horn.  If you have read this blog before you know that I think Attorneys that have to write up their latest victories are just looking for some ego stroking, and thats not why my firm is about.  But I do think its important to note that every now and then the justice system works, and innocent people are not convicted.

DUI Dismissed: In May the firm litigated a motion in a local Municipal Court.  The issue was whether there was a sufficient basis to pull over the client.  In the end the Judge found the Officer did not observe a traffic infraction and therefore did not have a sufficient basis to pull the client over.  This effectively suppressed all the evidence after the stop including the field sobriety tests, the portable breath test, and the breath test at the station.  And in the end the case was dismissed.  Now regardless of how you feel about DUIs, everybody in this country is protected the Constitution.  And if law enforcement does not follow those protections they need to be called out on it.  

DUI Dismissed: In June I had an interesting case.  It was a relatively low breath test in one of the local District Courts.  The client came to me not wanting anything on her record.  Which is difficult to obtain on any type of case.  Let alone a DUI charge.  But the one thing the client had going for her was my familiarity with the particular Judge and Court her case was in.  A few months prior I had a similar case.  A low breath test in front of a particular Judge. In that case the Judge agreed to a deferred sentence and then dismissed the case right on the spot at the time of sentencing.  So I knew if we could get in front of the same Judge and make the same arguments we had a good chance of him dismissing the case.  Well low and behold after a few court dates we got in front of this Judge.  I made the same arguments as before, and the Judge did the same thing and dismissed the charge.  The client was happy with the outcome, and now she can lawfully say she has never been convicted of a crime.

DOL hearings dismissed: Also in May and June I had a couple DOL hearings get dismissed.  Which is always great news to the client because their license will not get suspended.  But its also great satisfaction personally because the success rate at these DOL hearings is so law due to the nature of them and the legal standard that needs to be met.  In one case the Officer forgot to check a box, which resulted in the suspension being dismissed on a technicality.  In the other case the Officer didn't properly observe the client for 15 minutes prior to taking the breath test, which resulted in the license suspension being dismissed due to an inadmissible breath test (thank goodness for the video in the BAC room, because the Officer denied doing that during testimony).  And we also won a license suspension hearing when the Officer failed to appear.  Now I didn't really do anything in that case, but when the Officers are properly sent a subpoena, they need to appear like everyone else.

And lastly I had a tough verdict in June on a DUI jury trial.  As a Seattle DUI Attorney theses types of cases are always tough when the Prosecution was not offering any kind of plea deal, and my policy in those types of cases is to hold the Prosecution to their burden of proof and make them do their job.  In the end my client received the exact same sentence from the Judge he would have received if he just plead guilty.  But he also has an interesting appeal issue should he choose to move forward with it.

Upcoming I have some interesting cases set for jury trial.  I think they are good cases, and a verdict can go either way.  Which is all you can ask for in a criminal case.  Especially a DUI charge where usually the evidence is stacked in favor of the Prosecution.  So I will keep you posted on how those turn out.  

Remember with the summer in Seattle finally arriving, its important to not drink and drive.  But if you find yourself in the position of being investigated for a Seattle DUI.  Follow these simples rules and you will ensure your constitutional rights are protected.

1. Decline to answer any questions
2. Decline to do any field sobriety tests
3. Decline to do the portable breath test at the scene
4. Ask to speak with a Seattle DUI Attorney prior to submitting to the breath test at the station.

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.      

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.

New DUI related case on pretextual stops

So whats a pretextual stop?  To put it simply its when a police officer stops a vehicle for some kind of minor infraction with the sole purpose of the stop not being the actual infraction committed, but to investigate possible criminal activity.  You see lots of stops like this in DUI cases, especially here in Seattle, Washington, where we have lots of State patrol troopers traveling up and down I5 at night looking for people to pull over and investigate for DUI.

Recently the Court of Appeals Division III in Washington ruled on a case involving a pretextual stop.  In this case a patrol officer followed Gilbert Chacon Arreola's blue Chevy for over a half mile because it fit the description of a car reportedly driven by a drunk driver.  While watching for signs of impaired driving, the officer noticed an illegally modified muffler, and decided to initiate a stop based on that and nothing more.  In other words the sole basis of the stop being to investigate for a possible DUI.

The Court of Appeals held this was an unconstitutional stop because the Officer's primary reason for the stop was not to cite the alleged infraction for a modified muffler, but because the officer admitted his primary purpose was to investigate for DUI.  And despite following the vehicle for approximately 45 seconds, no observations indicative of impairment was observed, and therefore this stop was without authority of law.

I meet with many people who tell me the same thing.  They were driving home on I5 or I90 or 520 and they got pulled over for not signaling, for following a car too closely, or some other minor infraction.  When they get contacted by the officer, the officer doesn't talk to them about the reason for the stop and explain why they are being pulled over, but immediately asks if they have been drinking and if they have then they begin a DUI investigation.  In my opinion this is unlawful and these kinds of unlawful seizures should be challenged.

If you have recently been contacted by law enforcement and you were arrested after allegedly committing a minor traffic infraction contact my officer immediately to ensure your constitutional rights are protected.

Leyba Defense PLLC | Seattle DUI Defense

Leyba Defense PLLC updates and news

Its been a busy few months here at the firm so I havent had a chance to write any blog postings.  So here is what has been going on.

Recently I was asked to give a CLE presentation at the Washington Young Lawyers Division Trial Advocacy Program.  The topic was "Trial Notebook and Organization."  I also spoke last year at the Trial Advocacy Program, so it was quite an honor to get asked to speak again.  To get asked to speak to young attorneys about trial preparation and the skills they need to be successful is very flattering for the firm.  There were lots of great trial attorneys giving different presentations, and to be among them speaks volumes about my trial practice and reputation.  Overall I thought the presentation went well.  I outlined how I prepare for a trial, from the time a client sits down at that first initial consultation to my closing argument.  A lot goes into creating trial notebooks, and Im always surprised when I dont see other DUI attorneys using them.  Its kind of like hitting a tee shot on a par 3 in golf.  Its an advantage to tee your golf ball up, why not do it.  So the same goes for creating a trial notebook, it gives you an advantage and a leg up in your trial prep, why not do it.

Were not all about glamour and name recognition here at the firm, but we do get our hands dirty so to speak with our DUI defense.  Here are a few of our most recent successes

October 2011 - DOL hearing dismissed
Client was arrested for DUI in downtown Seattle by a so called Expert DUI officer.  Officer noted strong odor of alcohol, flushed face, watery and bloodshot eyes, and client admitting to having one drink.  Client allegedly failed 2 of 3 field sobriety tests, and declined to provide a breath sample in the field and at the station.  DOL dismissed after a motion to suppress evidence was argued by Matthew Leyba

October 2011 - DOL hearing dismissed
Client was arrested for DUI in Edmonds, WA.  Client was pulled over for minor traffic infractions.  Officer noted strong odor of alcohol, watery bloodshot eyes, and poor coordination.  Client blew a .139/.135 breath test.  DOL dismissed after a motions were argued by Matthew Leyba.

And lastly within the last month we were able to resolve 2 separate DUI cases by way of a deferred sentence for 2 separate clients.  Meaning at the end of 1 year period, the charges will be dismissed, and thus keeping the clients records clear.  Although they had to jump through a few hoops during the 1 year (i.e., community service, and staying out of trouble) this is still an excellent resolution and allows the client to not only avoid a DUI conviction, but a conviction all together.  Which anytime that can be accomplished whether through trial, or negotiation is a success in my book.

Leyba Defense PLLC

Leyba Defense PLLC

The use of a public disclosure request in defending a DUI charge

One of the most important tools every Seattle DUI Lawyer should have at their disposal is the "public disclosure request."  In a DUI case it is important to gather as much evidence as possible in order to prepare a proper and thorough defense.  Typically most Prosecutors will hand over a DUI police report, the breath test results, and maybe a CAD report (timeline of events from Police officer).  However in many instances there is much more evidence that can be gathered, and the experienced DUI Attorney will be able to find it through different methods of investigation, the use of subpoena's, and of course the public disclosure request.

So what is a public disclosure request.  RCW 42.56 titled the Public Record Disclosure Act states a public record is, "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristic."  


A writing is described as any "means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated"


So what does this mean?  Basically in any DUI case a person can request certain "writings" under the Public Disclosure Act, without the need for a subpoena, and it must be produced by the particular agency that has it.  


In every DUI case, Leyba Defense PLLC routinely asks for certain items under this act.  These include audio/video recordings, additional police reports made by the arresting officer, additional documents from the State Toxicologist concerning our clients breath/blood test results, all booking room photos and/or recordings.  As I stated before these things generally are not produced by the Prosecution, and unless they are requested, nobody will ever know about them.  


Probably the most important item to obtain under this act is any and all audio/video recordings.  In this day and age most law enforcement agencies have in car police video cameras, and video cameras in the breath testing room.  Although police officers generally write a report on why an individual was arrested for a DUI, sometimes these reports are biased, and in a few cases, just flat out incorrect.  An audio/video recording of the incident is gold in the sense that it will show exactly why a person was contacted by law enforcement, how they were acting during the investigation, and whether the arresting officer properly administered the field sobriety tests and breath tests.  


Here are two recent examples of how we used the Public Disclosure Act to our clients benefit.  In one DUI case recently we made a request for all audio/video recordings of a client while they were being processed at the police precinct.  We received a video of the police officer administering the breath test to our client.  Now even though in the police report the arresting officer stated "the breath test was administered properly and all protocols were followed."  This video showed the test was not administered correctly and therefore it was not admissible.  As a result of this investigation an excellent plea deal was worked out, and a DUI conviction was avoided.


The other example occurred when we requested the last 25 DUI arrest reports from a particular officer.  When we received these reports it was clear the arresting officer was just copying and pasting the same observations, and performance on the field sobriety test for every person they arrested.  This officer was not properly documenting every cases individually, but just writing the same thing in every report.  As a result of this we were able to impeach the officers credibility during a pretrial motion hearing, and shortly thereafter a dismissal and reduction in charges was offered by the Prosecutor.  


Obviously things like this dont happen in every DUI case, but if all investigation is not exhausted completely a proper and complete defense is not being put forward.  And in the end, the client will suffer not the attorney.  At Leyba Defense PLLC we will explore and exhaust all avenues for investigation, and will always put on the best defense possible.  If you have been arrested for a DUI in Seattle or by any other law enforcement agency in Western Washington, please contact us immediately to set up a free 60 minute consultation that is completely confidential.  


Leyba Defense PLLC | Seattle DUI Defense

Leyba Defense PLLC quoted in the Wall Street Journal

This past Friday, Leyba Defense PLLC was quoted in the Wall Street Journal.  A couple of weeks ago I blogged about a new bill that was being proposed in the Washington State Legislature that would require those convicted of DUI's to have a special letter in their license plate.  Well I was contacted last week by a journalist from the Wall Street Journal who wanted to write a story about this new bill, and some other states that have already enacted this kind of legislation.  Read the article here.

Matthew A. Leyba | DUI Attorney

Leyba Defense PLLC