Leyba Defense PLLC has 50% dismissal rate on DOL Hearings in last 20 cases

If you have been arrested in Seattle for a DUI, or in Washington State for that matter then you face two separate legal actions.  One of the legal actions is with the Washington State Department of Licensing.  Depending on whether you took the breath test and you were over the legal limit, or if you declined the breath test, you're facing a suspension of your drivers license or privilege to drive in Washington State.

Now you have the right to challenge this proposed suspension.  However as most DUI Attorneys will tell you it is an uphill battle.  Just to give you an idea of how difficult it is to prevail and avoid the license suspension you need not look and further than the dismissal rates statewide.  These rates vary from year to year, but generally the dismissal rate hovers around 25%.  Meaning statewide 75% of people that get arrested for a DUI in Washington State get their license suspended administratively if they choose to challenge the suspension from DOL.  That fact doesn't give a lot of hope to people, both attorneys, and individuals facing the suspension.

With that being said, Leyba Defense PLLC currently has a 50% dismissal rate in the last 20 DOL Administrative Hearing cases we have defended.  That is twice the statewide average!  How is that possible you ask?  How can one attorney have double the success when it comes to these hearings?  

Well the answer is very simple.  I don't mail it in.  Meaning many so called DUI Attorneys out there look at the statewide average.  Figure they are going to lose the hearing anyway, so why prepare for it?  Why spend time doing something when you're going to lose.  Well obviously I don't agree with this line of thinking, and I think that is probably the biggest reason why I have been so successful recently.

Now obviously winning these hearings have more to do with preparation.  Often times there is a little bit of luck involved.  But in most cases hard work often pays off and being creative with your arguments.  In addition to spending hours preparing for the hearing instead of instead of a few minutes as most DUI Attorneys do, Im able to see things others don't.  Knowing what issues you're looking for, and what issues will be successful with a particular hearing officer is half the battle.  Knowing when to subpoena an arresting officer and when not to is a factor.  Since I have opened my own practice I have spend hundreds of hours perfecting this game plan.

When I first started I spoke with another DUI Attorney who I thought was a good attorney.  I asked him point blank what he does if on the surface he doesn't spot any legal issues that would help him prevail at this hearing.  He told me in those cases he will subpoena the arresting officer.  Hope they don't show up, if they do tell the hearing judge he has nothing and just accept the loss.  Not even try, not even ask any questions, not even may any legal arguments.  I couldn't believe that is how he conducted his practice, and needless to say I don't ask him any questions anymore.  But that is the problem out there.  Not to bag on how other attorneys conduct their practice, but to not even try or not even give it 100% effort is malpractice in my eyes.  And unfortunately in my opinion from what I see out there, a good chunk of Attorneys do this.

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Matthew A. Leyba is a DUI Lawyer in Seattle, WA.  His practice if focused on representing those accused of DUI and other related offenses.  If you have been arrested for a DUI contact our office immediately to set up a free no hassle consultation where we will discuss all your options, what to expect, and how we can help you.  

To subpoena or not to subpoena that is the question

A few weeks back I was retained on a driving while license suspended case.  The client was suspended administratively by the DOL for a Seattle DUI arrest which was handled by a different attorney.  When I sent a subpoena to DOL to request all the driving records, and all the other documents associated with the suspension I also received the ruling from the DOL administrative hearing.

If you follow this blog you know now that when a person is arrested for a DUI they are given the choice of either taking a breath test or not.  If they take the test then they face a minimum 90 day license suspension if its over the legal limit.  If they don't take the test then they face a minimum 1 year license suspension.  If they want to challenge that suspension then they request a DOL hearing which is done over the telephone.

State wide there is around a 25% dismissal rate at these hearings so they are always an uphill battle.  When challenging these administrative suspensions the accused has two options when it comes to the arresting officer.  They can either subpoena the officer or not.  This is up to the discretion of the Seattle DUI Lawyer.

In my clients case the other attorney who represented him chose not to subpoena the arresting officer and instead made a technical argument about the validity of the police report.  Subsequently they lost, and now my client is dealing with a 1 year license suspension.

But reading that ruling got my thinking when should an officer be served a subpoena to appear at the DOL telephone hearing, and when shouldn't they.  I would say in my practice I subpoena the arresting officer 95% percent of the time.  Maybe more.  Very rarely is there going to be some technicality in the police report that will result in the license suspension.

In addition to that even if there is some minor scribners error in the report, or some technicality you have to consider who the DOL hearing officer is.  Believe it or not there are some hearing officers who have lower dismissal rates than others.  In my clients particular case he had one of the toughest DOL officers, one who is known to have an extremely low dismissal rate.  I could have taken one look at who the DOL officer was, and what this technical argument was going to me and predicted it wouldn't be dismissed.

Now Im not one to really second guess what another attorney does.  But in my opinion you better have a clear cut, 100% you know its going to get dismissed winner to argue a DOL hearing without the officer being present.

If not then why not subpoena the arresting officer.  Remember if they don't appear than that also can get the DOL hearing dismissed, and I would say maybe 2 or 3 out of 10 times they don't appear.  But even if they do, you get a free deposition of the arresting officer without a prosecutor being present.  As a Seattle DUI Lawyer, this is a dream.  Think about it you can pretty much ask the arresting officer anything you want within reason, and they have to answer it.

But to each their own I guess.  This is just my opinion.  Remember if you have been arrested for a DUI, and you're looking for a DUI Attorney to represent you.  Give me a call anytime, and I'll gladly go over all your options including what may happen at your DOL hearing.    

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.      

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

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

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

New DUI case result

Below is my most recent DUI success.  At first glance this was a very difficult DUI case to take on.  But this result shows how hard work, extensive research, and a little luck can result in any case being dismissed.  In my opinion 99% of DUI lawyers out there would have just pled the client guilty.  Leyba Defense PLLC prides itself on pushing legal issues, and fighting until the end on behalf of our clients.  


February 2011 - .219/.217 DUI Dismissed for no PC to arrest
King County District Court: Matthew's client was arrested for DUI on I-5. Client was involved in a one car collision. Trooper noted slow and labored movements, watery bloodshot eyes, flushed face, odor of alcohol, and slurred speech. Client declined the field sobriety tests and blew a .219 and .217 alcohol level. Judge dismissed after DUI Lawyer Matthew Leyba filed a motion to dismiss for lack probable cause to arrest.


To see the results of our most recent success click here.  Remember lots of DUI Attorneys out there promise results, at Leyba Defense PLLC we get results.  There is a big difference.  


Matthew A. Leyba | Attorney
Seattle DUI Defense

Seattle DUI Arrest

Arrested for a DUI?  What to expect…

If you have been arrested for Seattle DUI there are likely two separate legal actions against you:

1. The Department of Licensing may seek to revoke or suspend your drivers license
2. You may have to appear in court where you will face criminal charges

1.  Department of Licensing action

What are my immediate concerns with the Department of Licensing?

• If a hole was punched in your driver's license, it means the Department of Licensing intends to suspend or revoke your license effective 60 days from your arrest.
• You may request a hearing to contest this suspension that must post marked within 20 days of the arrest.  A nonrefundable $200 fee and the DOL hearing application form must be submitted.
• Your license may be suspended from 90 days to 4 years, based on prior offenses and your blood alcohol level plus you may be required to have SR-22 insurance. 

What happens if I contest my license suspension?

• A hearing will be held within 60 days of the date of Seattle DUI arrest by phone or in person.
• You will be assigned a hearing officer who will determine the following:

1. Whether the officer had reasonable grounds to stop you
2. Whether you were under lawful arrest
3. Whether you were read your rights
4. Whether your alcohol level was over the legal limit or whether your refused the breath test
• If your license gets suspended by the Department of Licensing you may be eligible to apply for an ignition interlock license or an occupational restricted license. 

2.  Criminal case action

If you are formally charged, your first court date will either appear via a summons through the mail or on a ticket issued to you at the time of your arrest.  Find your next court date & court location. 

What happens at your arraignment?

• Your first court appearance is your Seattle DUI arraignment. 
• This is where the Prosecutor will read the charges against you, and you will formally enter into a plea. 
• The Judge may set bail, and/or impose conditions on your release.

What happens at your next hearing?

• If you didn’t speak to a Seattle DUI attorney before your arraignment, you need to contact one immediately.
• The next hearing after your arraignment is a pre-trial hearing. 
• Typically one of three things may happen at this hearing:

1. You can continue your case to another pre-trial hearing for a variety of reasons.
2. You can pled guilty as charged or accept any plea deal that you get offered.
3. You can maintain that you are not guilty of this crime and set your case for trial.

What happens if you set your case for trial?

• You may request either a bench trial heard by a Judge, or a jury trial heard by a group of your peers
• Typically you will have several court dates in between your pre-trial and jury trial that you may or may not be required to attend
• A jury trial on a Seattle DUI case may last 1 day or 1 week depending on the number of witnesses, and evidence that will be presented.  You will be required to attend every day of the trial
• If you are found not guilty then the case will be dismissed.  However if you are found guilty then RCW 46.61.5055 will determine your minimum sentence. 

Extra DUI patrols for Huskies and Seahawks home openers

The Washington State Patrol and Seattle Police Department will be having extra DUI patrols this weekend. See the Seattle Times article here

Remember if you get stopped and you have been drinking. Politely decline to answer all questions, and politely decline the field sobriety tests. If you get placed under arrest ask to speak with a Seattle DUI Attorney immediately.

Leyba Defense PLLC | Seattle DUI Defense