New definition of what constitutes a "prior offense" for DUI sentencing purposes in WA

Last month a major DUI law was changed in Washington State when it comes to DUI sentencing.  The bill responsible SB 6413 drastically alters what can be considered a "prior offense" when it comes to DUI sentencing.  Prior to this change the law was pretty clear.  Now not so much in opinion despite what the bill set out to accomplish.

As I stated prior to this law if you were arrested for a DUI then your sentence for the most part was determined based on the number of "prior offenses" you had.  For example lets say you were arrested for a DUI in Seattle in 2008.  That DUI charged was reduced to Negligent Driving 1.  You then were arrested for a DUI in 2010.  The DUI in 2010 would be considered a second offense DUI because the first case originally was a DUI then it got reduced. 

Essentially if you got arrested for a DUI and that charged was reduced to another criminal offense then it was considered a prior offense.  Pretty straight forward, right.  Well SB 6413 changes all of this.  Now a prior offense can include any of the following: driving a commercial vehicle while under the influence, a BUI, operating an aircraft while under the influence, operating an off road vehicle while under the influence, and my favorite operating a snowmobile while under the influence.  

As a DUI Lawyer in Seattle, I have to say I do not understand what this accomplishes.  All of these offenses do not carry any of the consequences a DUI does other than being a criminal charge.  So why are they treated the same as a DUI when it comes to sentencing.  Why not stop there?  Why not include any alcohol related offense?  A minor in possession of alcohol, or an open container?  Obviously I am being factious, but you get my point. 

Unfortunately the DUI laws just happened to get a lot tougher in Washington State and this new law only shows how difficult things are becoming.  

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About the author:  Matthew Leyba is a DUI Lawyer in Seattle, WA.  He is the firm owner of Leyba Defense PLLC a DUI law firm located in the heart of downtown Seattle.  He practice focuses on representing those charged with DUI and DUI related offenses.    

Unpublished WA Court of Appeals opinion says Judge has discretion to impose IID condition

A new unpublished opinion by the Washington State Court of Appeals Division I came down yesterday.  It is an unpublished opinion so it is not controlling authority.  But it is an interesting decision, and one that goes against DUI Attorneys.  

Essentially the question was whether a Judge had the authority to exercise their discretion and impose an ignition interlock requirement on a DUI sentence when there is no evidence to suggest it involved alcohol?  The Court of Appeals held, "the court has the discretion to impose the installation of an ignition interlock device even though there is no evidence that a DUI conviction was alcohol related."

In other words if an individual gets arrested and convicted of a DUI that is not alcohol.  So it is a Drug DUI, or Marijuana DUI then the Judge can impose an ignition interlock device even though there is no nexus between what the device will prevent and the crime charged.  Meaning an ignition interlock device cannot detect drugs, only alcohol.  So if a person wasn't convicted of an alcohol DUI why should a condition that is alcohol related be imposed.  

The Court of Appeals reasoned that sentencing Courts have "great discretion in imposing sentences within the statutory limits for misdemeanors and gross misdemeanors."  Additionally they state, "A court may impose probationary conditions that bear a reasonable relation ... that tend to prevent the future commission of crimes."  

Let me just say that I don't agree with this ruling.  However I think the appellant made the wrong argument, and based on how they argued the Court of Appeals is right.  Yes, essentially a Judge has the discretion to impose whatever sentence the Judge wants and is related to the commission of the crime.  So if you consider a DUI case, what can prevent someone from committing this crime in the future.  Well there are two things I guess.  You can suspend their drivers license, or you can require them to have an ignition interlock device in their vehicle.

But my question is how in the heck is an ignition interlock device going to prevent someone from committing a DUI if they use drugs, or marijuana.  It doesn't make sense to me and I think there are other reasonable alternatives that have more of a nexus to drug or marijuana DUI cases.  I think with the recent passage of Marijuana legalization there is going to be more clarity with this particular issue.  Whether the imposition of drug treatment, random UAs, or some other form of substance detection is going to happen, we will just have to wait and see.  

If you want to check out the unpublished opinion here is the docket info 67664-4, filed 03/11/13.  It can be viewed on the Court of Appeals website.  

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Matthew A. Leyba is a Seattle DUI Lawyer.  His practice focuses on representing those accused of DUI and other related offenses.  He is currently rated as a Top DUI Attorney by Avvo, and was named a 2013 Rising Star by Super Lawyers Magazine, and Seattle Met Magazine in the area of DUI defense.  Less than 2.5% of all Attorneys in Washington State receive this honor.  

Is a green tongue enough for a DUI arrest?

Now that Washington State and Colorado have legalized Marijuana presumptively there is going to be more DUI arrests in those States for Green DUI's (those under the influence of Marijuana).  One of the observations that law enforcement often relies on in addition to the usual signs of impairment when it comes to Marijuana is a green tongue.  So the question becomes is a green tongue enough to get arrested for DUI?  

First it must be determined whether Marijuana actually causes a tongue to turn green.  

As I have noted before in my blog, I don't take part in Washington State's newest over 21 adult activity. So I asked several people I know who do, as well as some experts in the area of Marijuana impairment. They all had the same answer to whether Marijuana causes a green tongue.  Absolutely not?

So how did law enforcement come up with this green tongue phenomena.  I guess it was first started by the National Highway Safety Administration.  You know the same agency that created those wonderful roadside gymnastics tests that law enforcement and Prosecutors swear up and down detect impairment. They warn of the following characteristics for a Marijuana DUI under DEC profile, 

"characteristic indicators may include odor of marijuana in car or own subject's breath, marijuana debris in mouth, green coating on tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on the field sobriety tests."    NHTSA, "Drugs and Human Performance Fact Sheets

Yet NHTSA offers no documented medical evidence to support their position.  If you have ever tried a Marijuana DUI case then you know both the Tox and Cop say the taste buds get raised on the tongue, and the burnt Marijuana as well as the debris causes it to turn the tongue green.  I guess if you have a green slurpee, or a green jolly rancher, or a green lollipop you will get arrested for a Green DUI under the line of thinking.    

So clearly NHTSA has it correct (Im being facetious), and thus this so called green tongue phenomena has started.  So that brings me to the second question I posted.  

If you have a green tongue does that give an Officer probable cause to arrest for a Green DUI here in Washington State?  

Remember probable is the reasonable suspicion that would warrant a reasonable officer a crime has been committed.  Since probable cause and Marijuana really hasn't been discussed by the Washington State Supreme Court there really only two cases that discuss this idea and one is an unpublished opinion.

In State v. Wheeler, the Court of Appeals dismissed the idea that a green tongue and admission to past marijuana use by a driver gave rise to a reasonable suspicion of criminal activity.  In fact here is what they said.  

"Although we assume the officer's assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion's fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two."  

So basically the only ruling is unpublished but if you read between the lines the Court of Appeals has issues with the accuracy of what the Trooper said.  I think they are saying its BS, but that is just my opinion.  

So why am I bring this up.  Well has you know I'm a Seattle DUI lawyer.  I represent people not only accused of DUI involving alcohol, but also Marijuana.  And with the recently legalization of Marijuana this issue will soon get decided.  In fact I read online there was a recent case in the City of Kent where an individual was arrested for having a green tongue, and there was no other indicators of impairment.  You can check it out here.  It is titled, "Wash State Man Arrested for Having "green tongue."

Long story short.  This guy got arrested for a Green DUI in Kent.  Officer said he had green tongue, and in his infinite years of experience, and despite his lack of any sort of medical corroboration this is a sign of Marijuana use and he was arrested.  Should be interesting to see what happens in this case.  

If you have been arrested for a Green DUI and the only evidence against you is a '"green tongue," you need to fight these charges.  This is absolute BS, and is an infringement on our 4th amendment rights.  

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Matthew A. Leyba is a DUI Attorney in Seattle, WA.  He has been named a 2013 Rising Star by Super Lawyers Magazine in the area of Criminal Defense, an honor only given to less than 2.5% of all Attorneys in Washington State.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

Pot users at risk for DUI even if below the legal limit in Washington State

I just read an article about an issue dealing with the recent marijuana legalization here in Washington state and a DUI.  To be honest I hadn't thought about this particular issue the article raises, but I find it very interesting.  Essentially the article discusses how many law abiding citizens of Washington state, who have never tried marijuana are going to go out and purchase it legally now?  And of those people how many are at risk for DUI?

You see the general public out there only see one thing when it comes to marijuana and DUI.  They see the legal limit as 5 nanograms.  What do they have to compare that to?  Well the legal limit for an alcohol DUI is .08 blood alcohol level.  So the general public sits back and thinks.  Well if I can have 2 beers an hour, or a cocktail an hour.  Whatever they think they can have to get below the legal limit, they may apply that same line of thinking when it comes to marijuana.

The problem with that line of thinking is marijuana does not have the same effect on a persons body as alcohol does.  Figuring out a persons alcohol level is pretty simple math.  You take into consideration their body weight, alcohol consumed, over what duration, food, etc.  But with marijuana none of that really factors into what a THC level would be.  Marijuana may have different levels of potency, it may affect a person differently based on their regular usage. There are many factors that are not known.

The other issue this article discusses is what happens when the THC level is below the legal limit.  As a Seattle DUI Lawyer, I see this every day when it comes to alcohol.  I can't tell you how many clients I have represented on a DUI that have had alcohol levels below the legal limit of .08.  In fact in my experience most people are shocked to think you can be arrested for DUI below the legal limit, let alone charged with a DUI for it.  But it is true, and it happens all the time.

Well the same thing is going to happen with marijuana DUI's in Washington state.  In fact the article mentions a case in King County Superior Court where an individual was charged and convicted of vehicular homicide with a THC level of 1.6 nanograms, which is significantly less than the current legal limit of 5 nanograms.  Now that person is in prison serving a 16 year sentence.  

So the moral of the story is many people are going to want to try marijuana now that it is legal.  Maybe try a joint, or smoke a bowl in a social setting.  Much like alcohol is consumed.  But what you may not know is you can be charged with a marijuana DUI that is below the legal limit.  And there is no way to really know what you marijuana level is, unlike alcohol where you can make an educated guess.  

CLICK HERE to see the link to the article.   

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Matthew A. Leyba is a Seattle DUI Lawyer in Washington state.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  

How do you get a copy of your DUI arrest police report

Im a DUI Attorney in Seattle lately I have been getting calls from people asking how they can get their DUI arrest report.  Some of these individuals are not happy with their current DUI Attorneys and they are shopping for a new one.  Some of these people were recently arrested and want to get a copy of the police report and see what the arresting officer is saying.  Others just want a copy for some random reason.

Basically if you have been arrested for a DUI in Seattle then there are three possible ways to get your DUI arrest report.

The first is to make a public disclosure request to the arresting agency.  Now depending on the arresting agency you may or may not be able to get this.  If you were arrested by the Seattle Police Department and your DUI charge has already been filed, then you will get a response from the SPD saying you are the subject of an ongoing investigation by the City of Seattle Attorneys office and they cannot disclose any materials and to contact the City Attorney.  But if you were arrested by the Washington State Patrol for example then you can contact them through a public disclosure request and they will get you a copy of your police report usually within a month.

The second way to get a copy of your police report is to represent yourself at your DUI arraignment.  This is not the smartest thing to do, but everyone has this right.  If you have an attorney they cannot disclose to you the police report under the local court rules.  If you look at Criminal Rule 4.7 it states the materials received from the Prosecutor are to remain in the exclusive custody of the defense attorney.  This means the defense attorney cannot give the client a copy of the police report. 

The other way to get a copy of the police report after a Seattle DUI arrest is to request an administrative hearing from DOL to challenge the drivers license suspension.  When you're filling out this form you can include your name or your attorneys name.  If you include your name than the DOL will send you a copy of the police report.  If you include your attorneys name, DOL will send your DUI lawyer a copy of the police report.  Your lawyer can then turn around and give that to you, since it is not subject to Criminal Rule 4.7 we discussed above.

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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 DUI feel free to contact our office for a free 60 minute consultation.  

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

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