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. 

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

Field Sobriety Test FAQs and other thoughts

Lately I have had several potential clients accused of DUI meet with me and have some interesting issues with the Field Sobriety Tests or FSTs for short.  The purpose of this article is to kind of clear the air on people’s misconceptions about these tests, whether you should take them, and how accurate they are.The FSTs are a battery of tests that police officers will ask that you complete, usually while on the side of the road, when investigating for DUI, so they can “make sure you aren’t too impaired to drive.”  These tests are completely voluntary and you have the option to decline them.  Since they are voluntary.  Don't do the Field Sobriety tests!  Let me repeat, don’t do these tests, I cant tell you how many former clients I have still do these tests.  Remember they don’t satisfy any court requirement and they usually only incriminate you further on your DUI. 

So what are they?  There are 3 main SFST’s that are employed by most of the law enforcement agencies in Washington State when investigating a DUI

1.  The first is one of the most well known among civilians – the officer waiving a pen in front of your face and telling you to follow it with your eyes. This test is known as Horizontal Gaze Nystagmus (HGN). The officer will slowly move a stimulus (usually a pen) in front of your eye (right to left, or left to right) to determine whether your eyes are able to track the pen in a smooth manner (checking for nystagmus – an involuntary jerking of your eyes).

2.  The second test that will usually be asked to complete is the Walk and Turn. The officer will have you stand in a starting position while you are listening to his instructions. You will then take 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back to the start line. This is considered a “Divided Attention” test (i.e you will need to concentrate on two things at one – listening to directions while maintaining the start position but not actually starting).

3.  The last of the SFST’s is the One Leg Stand.  Here the officer will have you maintain a start position while explaining the directions (another “dividend attention” test). Once the officer instructs you to begin, you will raise one leg approximately 6 inches off of the ground with your foot pointed out and count out loud (one-one-thousand, two-one thousand, three-one thousand) until they tell you to stop.  Which is supposed to happen after 30 seconds. 

Now there are some other field sobriety tests that can be requested of you, usually Seattle Police Department Officers will request you complete these tests in addition to the main three.  Typically you will see these from some of the members of the DUI squad.  

The other field sobriety tests include:

·       Add 20 + 21

·       saying ABC’s (not singing),

·       counting backwards between two numbers,

·       finger dexterity (finger to nose),

·       Romberg Test (you stand still with feet together, arms at sides, head back, and eyes closed – the officer will check for swaying).

So how accurate are these field sobriety tests?  Well there was some studies done by the National Highway Traffic Safety Administration back in the late 70’s and early 80’s.  Beginning in late 1975, the Southern California Research Institute under the guidance of NHTSA traveled to law enforcement agencies through the US to select the most commonly used field sobriety tests.  Six tests were used in the initial stages of this study.

Laboratory research indicated that three of these tests, when administered in a standardized manner, were a highly accurate and reliable battery of tests for distinguishing alcohol levels about 0.10.  NHTSA analyzed the laboratory test date and found: HGN, by itself, was 77% accurate; WAT, by itself was 68% accurate, and OLS, by itself was 65% accurate.  When HGN and the WAT were combined an 80% accuracy was achieved. 

Now let me preface these results for a minute.  These tests were conducted in controlled environments.  Meaning they were done indoors, on a level surface, with good lighting, and performed by people with nothing to lose.  This is what most police officers, and prosecutors don’t understand.  When a person is on the side of I5, with cars speeding by them, its 20 degree outside, the officers overhead lights on blinking, they are scared and never been in trouble before, facing the strong likelihood of going to jail.  Obviously this is going to affect how a person does on these roadside gymnastics tests.  Imagine taking a test in school, and if you didn’t get a “B” you would go to jail.  That’s a lot of pressure if you ask me.  In addition to that these tests in my opinion are nothing but junk science.  But that’s for another blog. 

In summary, remember to talk to an attorney before you do these tests.  If you have had alcohol to drink, and the police officer smells an odor, chances are you’re going to get arrested for a DUI.  Regardless if you do these tests are not.  So you might as well make things easier on yourself, and your DUI Attorney and politely decline.  If at any time you ever have a question when you’re being investigated by a police officer always ask to speak with an attorney.  Seriously.  You can call me anytime.  24/7.  I will always pick up.  Or you can ask to speak with a public defender.  Usually police officers have that number on speed dial.   

Seattle DUI Attorney

Pleasant interaction with Washington DOL today

Today I had a Washington Department of Licensing Administrative Hearing today.  For those of you that don't know what this is.  When a person gets arrested for a DUI or a Physical Control charge in Washington State they are usually asked to submit to a breath or blood test.  Based on the results of that test, the police officer will send in the results to DOL.  DOL will then automatically suspend that persons drivers license 60 days from the date of arrest, unless that suspension is challenged.  As a DUI Attorney my representation includes this DOL hearing, so as you can imagine I deal with DOL quite often.

Anyway I had a DOL hearing today for a client who was arrested in Seattle for a DUI charge.  This was clients first offense, and I had already negotiated a reduction to Negligent Driving First Degree.  This would ensure that my client would not face a license suspension from the Courts, however he was still facing one from DOL.  As part of my investigation I conduct a thorough review of the police report that DOL sends me.  I have created a 4 page checklist that I go through, so I don't miss any issues in the report that could argue to DOL.  Sometimes police officers forgot to check certain boxes, or they accidentally omit information, or they provide incorrect information.  These are just some of the many  technicalities that can result in a person winning their DOL hearing.

So on this particular case, I had noticed that the Officer had provided his breath test permit card.  This card shows that a police officer is qualified to administer the breath test.  However they expire every 3 years, and the police officer needs to renew it.  In this case the police officers permit card was expired on the day he arrested my client and administered the breath test.  The problem was that he checked a box in the police report that said he was qualified to administer the test and he had a current breath test permit card.  In addition to that at the beginning of the police report he had written some boiler plate language that Im sure he includes in every report, but it said he was qualified to administer the breath test.

Now even though the permit card was expired, I thought the DOL would find there were sufficient facts to show he was qualified based on the report that he submitted.  I had prepared a lengthy argument against this, including some contract law principles.  I was prepared to argue as much as I could to dismiss this license suspension.

Here is the pleasant part.  When the hearing officer called me, before he started the recording.  He told me that he noticed the police officer had an expired permit card, and I should make a motion when he starts the recording.  I was shocked to say the least.  Here I thought I was going to have to duke it out with this hearing officer over this DUI permit card, but the hearing officer recognized a legal technicality and rather than try to make up a reason not to honor it, he did the right thing.  Some hearing officers would not have done that, and probably would have suspended my clients drivers license.  But on this case, the hearing officer did what was not only right, but what was legal.

I made the motion to dismiss because there was insufficient foundation to introduce the breath test.  The hearing officer agreed, and dismissed the proposed license suspension.  BAM.  Thats what a little leg work, and preparation will do.

Remember if you have been accused of a DUI and you're facing a proposed license suspension from DOL make sure you challenge that suspension.  It can mean the difference between no license consequences at all versus a license suspension, mandatory ignition interlock, and SR-22 insurance.

Matthew A. Leyba | Attorney
Leyba Defense PLLC | Seattle DUI Defense

DUI arrest may lead to Facebook shaming in California

Attached is a link to an article I read this morning titled "Drunk Driving May Lead to Facebook Shaming"  The gist of the article talks about how a city councilman in Huntington Beach, CA wants to post a mug shot on Facebook of any individual with more than 2 DUI arrests.  In the article council member is quoted as saying, "If it takes shaming people to save lives, Im willing to do it," "Im hoping it prevents others from getting behind the wheel and getting inebriated."

As a Seattle DUI Attorney, I found this article very disturbing.  Am I in support of people drinking and driving, no Im not.  However if someone chooses to make that decision, then they are entitled to all of the same constitutional rights that everyone else is afforded in our country.  Mistakes happen, and sometime good people make bad decisions.  However everyone has been there, everyone has made a mistake at least once in their lives and most people feel horrible about it afterwards.  I have been a DUI Lawyer for quite some time and I have not once had a client who told me they didn't feel bad for the decision they made, and they didn't regret it.  So its not like people don't recognize the mistake they made.

But the real disturbing part of this proposed idea, aside from the privacy issues this would raise, how about the presumption of innocence.  I found it interesting this article didn't talk about prior DUI convictions, but only DUI arrests.  So basically if a person is falsely accused of a DUI, then they can face the humiliation and embarrassment that this would cause simply because they were arrested.  Un-freaking-believable!

Matthew A. Leyba | Attorney
Leyba Defense PLLC | Seattle DUI Lawyer

Washington State is getting a new breath test machine

It appears the time has finally come. After years and years of using inferior, outdated breath testing equipment Washington State appears to be moving forward with plans to use newer and more advanced breath testing machines regarding Washington DUI and other alcohol related offenses. The state has already purchased a number of machines, the Draeger 9510, and is in the process of testing them before deploying them to be used in actual Washington State DUI arrests. From what I hear the laws are currently being changed to allow these new machines to be used in the field beginning 2011. RCW 46.61.506 was recently amended to permit the use of “dry gas” in the administration of a breath test to Washington State DUI suspects. The term “dry gas” refers to a vapor which will be introduced into the breath testing machine pursuant to testing protocol and the purpose is to determine whether the machine is properly calibrated. Prior law had only authorized the use of a liquid simulator solution in connection with the testing of Washington State DUI suspects.

Remember a Seattle DUI arrest is a serious matter. Its always important to use a designated driver, or use a cab service if you plan on having a few drinks especially with the number of Seattle DUI emphasis patrols out there. However if you find yourself in the position where you are being questioned by a Seattle DUI police officer, request to speak with my office immediately or ask for a Seattle DUI attorney.

Leyba Defense PLLC | Seattle DUI Attorney