Don't just give up at the DOL hearing

I can't tell you how many people I meet with that just ask whether they should go ahead and accept the administrative license suspension from the DOL.  It usually goes something like this, "I met with another attorney they said the DOL hearings are impossible to win, so should I just not challenge it and accept the license suspension."  My response is always, "Who the hell told you that!"

I'll admit the DOL hearings are always an uphill battle.  Especially for Seattle DUI Attorneys.    For a couple of reasons really.  First its a civil hearing so the burden of proof is less than in a criminal case.  Secondly it seems like everything is stacked against the petitioner.  The "judge" works for DOL.  They also act as opposing counsel or the "prosecutor" if you will.  And lastly its really in DOL's financial interests to suspend a license because they get money when the license needs to get reinstated.

Now proponents of this process will tell you thats not the case.  That an individual is afforded all the due process rights, blah, blah.  But the reality is in most cases if you're arrested for a DUI then your drivers license is going to get suspended.  I mean statewide there is something like a 25% dismissal rate at these hearings.

What I listed above are just a few factors contributing to that low dismissal rate.  In all honesty I think what really contributes to those numbers are attorneys who just phone in the DOL hearing.  In other words they think they are going to lose, they don't spend any time preparing, and they just go through the motions at the hearing itself.  Their rationale is, hey Im going to lose this hearing anyway, so why put in the time and effort.  I mean after all I think thats just human nature.  You get beat down so many times, you just give up.

Well thats not how my firm does it.  And I think our results speak for themselves.  I put everything possibly into these hearings.  I really treat it like a jury trial.  My goal is to have as much of the case investigated as possible at this early stage.  Meaning all witnesses have been interviewed, all videos have been subpoena'd, I spend several hours preparing for the hearing, another hour or so drafting my cross examination of the officer, another hour drafting my closing argument along with having every case I need handy.  Overall its not uncommon for me to spend anywhere between 10 - 20 hours preparing for this hearing.  Now some Seattle DUI Lawyers probably think thats crazy, but thats just how I was raised.  Not to do anything half ass.

Now obviously I don't win every hearing.  But I feel like I win my fair share, and its above the statewide average.  The reason being is not because Im smarter than other attorneys (most yes), or because Im lucky.  I think the reason being is because I work harder than most if not all other Seattle DUI lawyers.

If you have been arrested for a DUI and you're deciding whether or not to go forward and challenge the suspension.  Do it.  What do you have to lose?  Other than $200.  

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.    

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. 

Questions to ask when interviewing a DUI Attorney

Questions to ask when interviewing a DUI lawyer

There are literally hundreds and hundreds of Attorneys out there advertising themselves as a DUI Attorney or DUI Lawyer. And like all professions there are good ones and there are bad ones.  When you interview them you need to weed out the good ones from the bad ones. So I have compiled a list of 5 questions to take with you when interviewing a DUI Lawyer:

1. Do you practice exclusively in DUI Defense? This is important because there are a lot of attorneys that do advertise as Seattle DUI Attorneys. However there are very few that exclusive practice DUI Defense. DUI practice is very specialized and in order for you to have the best chance of beating this type of charge you need an Attorney that exclusively limits their practice to DUI Defense.  You need someone who knows the prosecutors and Judges, and understands the ins and outs of this particular area of law.   Leyba Defense PLLC exclusively practices DUI Defense. I would say about 95% of our cases are DUIs

  

2. How much experience do you have? This question is pretty similar to the one above. When I mean experience I don’t mean how many years have you been practicing law (although that is important). I mean how many DUI cases have you defended. This is important because you need a Seattle DUI Attorney that knows what it takes to defend a case and has the experience to rely on. Anybody go start their own law firm after law school.  In fact I’ve met a lot of attorneys who have done that.  However in a DUI case there are many different types of situations that can unexpectedly arise. Having a DUI Attorney that has been there and done that, will greatly enhance your chances of beating it.  I would say a DUI Attorney that has defended over a thousand DUI cases would have this type of experience.   Most of the cases I have defended as an Attorney have been DUI's. I first began work at the Spokane County Public Defenders Office. There I worked for two years in their DUI court. Meaning all of the cases I had where DUI's. The next four years I worked at one of the largest criminal defense firms in the State. There probably 75% of my cases were DUI's. In 2010 I opened Leyba Defense PLLC, my own law firm which focuses exclusively on DUI Defense.  In my career I have probably defended a couple thousand individuals accused of DUI. 

3. How many cases have you taken to trial recently, what were the results? As I stated before there are literally hundreds and hundreds of attorneys advertising themselves as a DUI Attorney. However very few actually go to trial and have the experience needed to get you a not guilty verdict. Going to trial is hard work. It’s really hard. Ask any trial attorney. And when a client is facing jail if you lose, there is a lot of pressure knowing that. The reason I think its important to find a DUI Attorney that shows they go to trial is very simple. In Washington State any time a person is charged with a DUI they face a mandatory jail sentence and fine. And lots of times the Prosecutor is not willing to negotiate and wants the mandatory jail and fine. Well my firm’s philosophy on defending DUI cases is very simple.  If you believe you’re not guilty, or if the Prosecutor wants you to plead guilty then I say set the case for trial.  Because in DUI cases if a person is found guilty at trial, then most times they will receive the exact same sentence that the Prosecutor wanted them to plead guilty to in the first place.  So my question to other DUI Attorneys, who don’t have this same philosophy, is why not.  I’ll tell you why it’s because they are either scared, or they don’t want to work hard.  Either way that is not the type of Attorney you want on your side.  Of the last 100 DUI's I have defended probably 50 have been set for trial and 25 have been taken to verdict.

4. What are your fees? As you know by now there are hundreds and hundreds of Seattle DUI Attorneys. And they all have different fees, and retainers. Ask what they are and like all things you get what you pay for.  If you’re going to hire the least expensive person you can find, then most likely that person will do the least amount of work on your case.  But at the same time I don’t think you need to hire the most expensive person either.  My fees vary depending on the facts of the case, a person’s criminal history, and the number of witnesses involved.  However I believe I fees are very competitive with other firms out there and they are always completely set out in the fee agreement.  I will never try and nickel and dime you for more money. 

5. How many DUI cases do you have right now? In this business there are attorney's known as "turn em and burn em" type of attorneys. These are the DUI Attorneys that have lots and lots of clients. And they only have one goal to get you to plead guilty as soon as possible so they can move on to the next person. Typically this is the attorney that charges the least amount you will find. Or the DUI Attorney that will say "even though you don’t have any criminal history, and this DUI case does not have egregious facts, you could get a substantial amount of jail if you lose at trial you should just plead guilty." I have no respect for these types of attorneys, and in my experience I would say about there are quite a few Seattle DUI Attorneys I see do this.   Part of the reason I left my last job was because of the high caseload I had. It was very difficult for me to give everything I had for every client. At Leyba Defense PLLC I keep my caseload small. By limiting the number of clients I take, I can devote more time to each case and each client.

Matthew Leyba | Attorney

Leyba Defense PLLC | Seattle DUI Defense

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