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.

WWLD......What would legal minds do?

Instead of "what would Jesus do," how about "what would legal minds do."  I find it interesting that individuals that get arrested for a DUI here in Washington State that have a background in the legal system.  Whether it is a law enforcement officer, or whether it is a Judge.  What do they all have in common.  When they are being investigated for a DUI they decline to answer any questions.  They decline the field sobriety tests.  And in some cases they decline the breath test at the station.

Why is that?  They must know something the rest of society doesn't.  Perhaps it can be that the field sobriety tests are junk science only designed for a person to fail.  Or perhaps it can be that the breath test at the police station is a piece of junk and that is neither accurate nor reliable, despite what the Prosecutors and the Washington State Patrol Toxicology Lab say.

Now Im not here to violate these individuals privacy, even thou their arrest is public record.  Im not trying to embarrass anyone, or poke fun at their mistakes.  Obviously they are human, just like the people they arrest, and the people they preside over.  But what I want to point out is what a knowledgable individual does when they are being investigated for a DUI.  As you may know Im a Seattle DUI lawyer.  Many of my blogs here say the same thing over and over.  Decline the field sobriety tests, don't answer any questions without talking with a lawyer, and don't take the breath test without asking for a lawyer.

But sometimes I get the feeling people aren't listening because Im a DUI lawyer and somehow I have a dog in the fight.  This is why I bring up the Sargent with the Seattle Police Department who was arrested, and the Judge who was recently arrested.  Obviously they are familiar with the legal system, and in particular DUI cases.  They declined, and if that doesn't tell you how flawed everything is in a DUI investigation, I don't know what else will.  

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Matthew A. Leyba is a Seattle DUI lawyer located in downtown Seattle.  His practice focuses exclusively on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI feel free to contact our office for a free 60 minute consultation that is completely confidential.

Helpful hints to keep in mind during SeaFair weekend

With the annual seafair weekend upon us there will be an increased emphasis in DUI patrols.  Remember the best decision to make is to not drink and drive.  But if you do have a few and find yourself in the unfortunate position of being investigated by a DUI officer here are some helpful hints to keep in mind.

If you're being investigated for a DUI then it's important to remember as much as possible about the interaction with the arresting officer to relay to your Seattle DUI lawyer. Often times during the defense of a DUI case there are no cameras or recordings of what happened. Most of the evidence comes from the police report and the testimony of the arresting officer. To challenge that evidence it may be necessary to have the only other person who was present testify. That would be the defendant.  Therefore if you found yourself in the position of being investigated for a Seattle DUI Arrest then it's important to try and take mental notes on the following areas.

Did the officer explain the reason for the stop: Many jurisdictions have seen a crackdown on drunk driving. However with such an increased emphasis many Officers are simply pulling people over for minor infractions with the intent to conduct a DUI investigation. A tell tell sign of whether this in fact happened was if the Officer initially advised of the reason for the stop or did they just start asking questions about alcohol consumption.

How much time elapsed before you were asked to exit the vehicle: Being able to remember how much time elapsed before you were asked to exit the vehicle can demonstrate whether this was the type of stop where there was no intention to cite for an infraction, but to investigate for a DUI. In order to ask a driver to exit a vehicle to conduct a DUI investigation the arresting officer needs to point to specific and articulable facts the driver may be affected by alcohol. Usually if a driver is asked to exit immediately there is no way for an Officer to note the signs of impairment necessary to start a DUI investigation.

Did you understand the field sobriety tests were voluntary: In Washington State the field sobriety tests to be taken voluntarily before they are admissible in court. Often times in DUI arrests the arresting officer just asks the driver to start performing these tests. There is no mention that they are voluntary and the driver has a right to decline them.

The area where you performed the field sobriety tests: Generally the field sobriety tests should be performed in a well light area with a relatively level surface. It's important to remember the area where the tests were done in case it was not an ideal location.

Process prior to taking the breath test: Prior to taking a breath test a subject cannot burp or hiccup or put anything in the mouth that can affect the results of the test. If you were hiccupping or burping uncontrollably and the Officer still administered the test to you that may be an issue. Try and remember any abnormalities that may have happened prior to submitting to the breath test to inform your Seattle DUI lawyer

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Matthew Leyba is a Seattle DUI Lawyer focusing on DUI defense and other serious traffic offenses.  If you have been arrested for a DUI in Western Washington contact our office immediately to set up a free consultation with an experienced Seattle DUI Attorney.

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

Website shows DUI patrols in King, Snohomish, and Pierce counties

The Washington Traffic Safety Commission has rolled out a website that allows residents of King, Snohomish, and Pierce counties to see when and where law enforcement will be conducting DUI patrols in their communities.

Only three counties are activated so far in a special two-year project to reduce DUI deaths, but the commission hopes that information for every county in the state will eventually be posted on the website

To continue reading the article, click here

Leyba Defense PLLC | Seattle DUI Defense

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

Breathing patterns can affect breath test results

A recent scientific article from Forensic Science International confirms something that Seattle DUI lawyers already know, that breathing patterns can affect the result of a breath test in a big way. In "Influence from breathing pattern on alcohol and tracer gas expirograms—Implications for alcolock use", the Swedish authors conclude from their studies that the measurement of a breath alcohol result is greatly influenced by the timing of the test and the breathing pattern of the person taking the test. Specifically, shallow breathing or hyperventilation can lead to a lower breath test result. Conversely, deep breathing and holding the breath before blowing can lead to an increased breath test result.

There are a couple of points to be made here. First, the machine is supposed to be giving us an accurate measurement of what a person's actual breath alcohol content is. It should not be too high or too low based on how the person is breathing, especially since everyone breathes differently, and people who have been arrested are often crying, in shock, angry, etc, and not breathing in their normal breathing pattern. This is more proof that the number that the machine spits out is just a “guesstimation,” at best.

Second, police officers that know this information can use it to manipulate test results (just as a subject could). I am able to obtain and watch a video recording of the breath test in almost every Seattle DUI case, which I handle. It is very common to see police officers demonstrate to the subject to how to take a deep breath and hold it, before blowing in the machine. Whether the officer realizes that this can influence the test result, I don't know. But, it is very, very common. If nothing else, taking a deep breath and holding it tends to heat up the breath to be expired. The machine is calibrated to assume that the expired breath is 34 degrees Celsius +/- .2c. 34 degrees Celsius is 93 degrees Fahrenheit. The human body is, on average, at a temperature of 98.6 degrees Fahrenheit, or 37 degrees Celsius. Expired breath is expected to cool as it leaves the human body, thus the assumption of the lower temperature by the breath test machine. However, if the breath is warmer than 34 degrees Celsius, the test result will be skewed higher. Holding the breath will make it closer to the 37 degrees Celsius of the human body when it is expired.

The bottom line is that there are dozens of variables that can affect what the breath test result is at any given moment. These variables include breathing patterns, body temperature, partition ratio between the breath and blood, inherent margins of error in the machine, the inherent margin of error in the gas or solution used to calibrate the machine, burping, crying, hyperventilating, interfering chemical compounds, voltage fluctuations in the power supply to the machine, radio frequency interference from police radios, cell phones, etc. Every person's biology is different, but the machine treats everyone as if they were the same. Every person's breathing pattern is different, but the machine assumes that everyone is breathing the same. Alcohol in the blood is what makes people intoxicated, not alcohol in the breath. The machine has to make assumptions about the breath, and calculations and conversions based on those assumptions to estimate what the blood alcohol content is. The assumptions and estimates these outdated machines make leave too much reasonable doubt in my opinion as to what a persons actual blood alcohol level is and whether they are actually guilty of a Seattle DUI.  

Seattle DUI Attorney

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

More than 800 in King County arrested for DUI from 11/25/10 - 1/2/11

Read article here

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

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

Seattle DUI Deferred Prosecution

Should I consider a DUI Deferred Prosecution?

A Seattle DUI or a Washington DUI for that matter is a very serious offense.  When a person is charged with this particular crime they face a mandatory amount of jail, a mandatory fine, a mandatory license suspension, a mandatory ignition interlock requirement, and period of probation.  These penalties vary depending on the number a prior DUI’s a person has and what the breath or blood alcohol level was. 

            However despite these penalties if a person is charged with a DUI then can choose to enter into what’s called a deferred prosecution.  This allows the accused to defer and potentially avoid all the mandatory jail, fines, and license suspension if they agree to certain terms that are outlined in RCW 10.05.   A person can do a deferred prosecution once in their lifetime for a DUI charge. 

            Now this may seem like a great idea, but a deferred prosecution is very complex resolution with very strict guidelines.  Essentially in order to qualify for a Deferred Prosecution on your Seattle DUI or Washington State DUI the first thing you need to do is a complete an alcohol and drug evaluation.  The results of this evaluation must find that you suffer from alcohol or drug dependence, and that you will enter and complete a 2-year alcohol/drug treatment program.  The cost of this type of programs depends on the individual treatment center where the program will be, whether you have insurance that might cover some of this.  But plan on spending around $3000 - $6000 on this 2-year treatment plan. 

            In addition to the 2-year treatment plan, you will enter into a contract with the Court where you Seattle DUI or Washington State DUI is in.  You will have to agree to a contract between you and the Court that will last 5 years.  During those 5 years if you successfully start and complete the 2-year treatment plan, abstain from alcohol and drugs, monitored by probation, and agree to having a functioning ignition interlock device in your vehicle the Court will dismiss the Seattle DUI or Washington State DUI charge at the end of the 5 years. 

            However if you fail to live up to your end of the bargain, when you enter into the Deferred Prosecution you agree that there are enough facts in the police report to find you guilty, and you waive your right to have a jury trial.  So if at any time during these 5 years it can be shown by a preponderance of evidence that you’re in violation of any of the agreed terms of the Deferred Prosecution the Judge can revoke your deferred and impose all the mandatory penalties allowed by law. 

            Many DUI Attorney’s tell people that a deferred prosecution is a good idea, because they can avoid all the jail and fines, and ultimately get the thing dismissed.  However my firm is very cautious about representing people who might want to consider this option.  In fact as of writing this, of the last 100 DUI’s we have defended only 4 people have entered deferred prosecutions.  That is only 4%.  Why?  Because there are a lot of things at stake and there are certain people who might not make the best candidate for this option. 

            If you’re considering this option or would like more information on entering a deferred prosecution on your Seattle DUI or Washington State DUI, please contact my office immediately.  An experience Seattle DUI Lawyer will be able to answer all of your questions and inform you of whether this might be a good option for you.  

Matthew Leyba | Attorney

Leyba Defense PLLC | Seattle DUI Defense