IID required for ORL in Washington State? DOL says yes

As many of you know one of the consequences of getting arrested for a DUI in Seattle is the possibility of having an ignition interlock device required in any vehicle you drive.  Thus giving you one more reason to hire an experienced DUI lawyer to try and prevent this from happening.

One of the ways of doing this is to try and get the DUI charged reduced to a lesser offense.  Like a reckless driving or a negligent driving for example.  However recently due to how DOL is interpreting one of the applicable statutes dealing with DUI offenses, a reduction in charges is not as beneficial as it once was.

If you get arrested for a DUI in Seattle, and it gets reduced to reckless driving by a plea deal than previously this was a pretty good deal.  From previous blog posts you should know that a reckless driving does not carry the mandatory jail, the mandatory fines, the mandatory ignition interlock requirement (if it's a first offense), and the 5 years of probation.  The one downside of a reckless driving conviction is it does carry a 30 day drivers license suspension, and require SR22 insurance.  But compared to the possibility of a lengthier suspension and IID requirement on a DUI, it is still an excellent idea.

Additionally if an individual wanted to drive during the 30 day suspension they could apply for an occupational restricted license.  This place restrictions on time, length, and places an individual could drive.  But it would still allow them to get to and from work, which is very important to most people.  Previously this type of restricted license did not carry an IID requirement.

But in the last few months DOL has taken it upon itself to impose an IID requirement for an occupational restricted license.  Why they started this I have no idea?  Probably just a way for them to somehow make more money off people, while at the same time adding to their infinite power they seem to have.  I believe this is an incorrect reading of the statute, and here is why?

RCW 46.20.391 codifies the temporary restricted occupational license.  States the following:

"An applicant for an occupational or temporary restricted driver's license who qualifies under subsection (1) or (2) of this section is eligible to receive such license only if: (a) Within seven years immediately preceding the date of the offense that gave rise to the present conviction or incident, the applicant has not committed vehicular homicide under RCW 46.61.520 or vehicular assault under RCW 46.61.522; and (b) The applicant demonstrates that it is necessary for him or her to operate a motor vehicle because he or she: . . .  (c) The applicant files satisfactory proof of financial responsibility under chapter 46.29 RCW; and (d) Upon receipt of evidence that a holder of an occupational driver's license granted under this subsection is no longer enrolled in an apprenticeship or on-the-job training program, the director shall give written notice by first-class mail to the driver that the occupational driver's license shall be canceled."

RCW 46.20.391 (emphasis added)

So if you read the highlighted parts closely there are essentially four requirements:

• No prior conviction for vehicular assault or vehicular homicide
• Show they are employed, etc
• Files SR22 insurance
• Not enrolled in training program

In fact I pulled this off the WA DOL website

You’re not eligible if:

• You’ve been convicted of vehicular assault or vehicular homicide within the last 7 years prior to your current incident.
• Your driver license is suspended for:
  • Driving under the influence of drugs or alcohol (DUI).
  • Physical control (drug or alcohol-related).
  • Minor in possession.
  • Vehicular assault or vehicular homicide.
  • Intermediate (teen) license violations.
  • Too many rules of the road violations while you have an intermediate license.
  • Failure to pay child support.
  • Fraud.
  • Medical or vision reasons.
  • Violation of court-ordered probation.
  • Habitual traffic offender status.
  • Failure to:
    • Qualify on a medical or visual examination.
    • Qualify on a driver skills examination.
    • Undergo required alcohol/chemical dependency treatment.
  • Violation of ORL restrictions.
  • Canceled SR-22 insurance (proof of financial responsibility).

Note there is no mention you're ineligible if you have a reckless driving conviction.  So how does DOL think they can to do this you ask?  Well effectively they are requiring people convicted of reckless driving to apply for an ignition interlock license.  But if you check out RCW 46.20.385 which codifies those requirements there is no mention of a reckless driving.

"(1)(a) Beginning January 1, 2009, any person licensed under this chapter who is convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local or out-of-state statute or ordinance, or a violation of RCW 46.61.520(1)(a) or46.61.522 (1)(b), or who has had or will have his or her license suspended, revoked, or denied under RCW 46.20.3101, or who is otherwise permitted under subsection (8) of this section, may submit to the department an application for an ignition interlock driver's license. The department, upon receipt of the prescribed fee and upon determining that the petitioner is eligible to receive the license, may issue an ignition interlock driver's license."

RCW 46.20.385

In case you don't want to look up those statutes mentioned in there take my word reckless driving is not one of them.  But check out what magically appears on the DOL website

You may be issued an ORL/IIL, if your license is suspended for both of the following:

• An alcohol-related offense eligible for an IIL.
• Another offense which is eligible for an ORL.

This license allows you to drive while your license is suspended, but restricts the hours, days, and locations where you may drive.

But the problem is this magical super secret combined license is no where in any statute I can find.  Essentially it is on a website that is owned by the Washington Department of Licensing.  So I guess that is that. 

It just bothers me that for years and years this was never the case.  One of the biggest benefits of a reduction to reckless driving was no requirement of an ignition interlock device.  If a person didn't want to sit out the 30 day suspension they could apply for the occupational license which did not require an IID device.  That is no longer the case.  It appears you must apply for both the ignition interlock license and occupational license.  Pay DOL those additional fees, install the IID, and show proof of the SR22.

Bureaucracy at its best I guess!

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About the author: Matthew Leyba is a Seattle DUI Attorney.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  He is currently rated by Avvo as a Top DUI Attorney in Seattle, and was recently named a 2013 Rising Star in the field of DUI Defense by Superlawyers Magazine.  An honor less than 2.5% of all Attorneys receive.

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.  

No two DUI cases are the same in Washington State

Recently I met with someone who asked me a question that I get on a fairly regular basis, so I thought I would post my response here.  The question was, well I guess it was more of a half statement and half question.  Essentially it was, "My friend got a DUI.  He had a similar breath test, we did the same on the field sobriety tests, and he had never been in trouble before and he got a certain plea deal.  Can I get the same deal?"

As I said above I get this question fairly often.  From possible clients, to actual clients, to fellow lawyers asking my opinion about a case, or even curious friends.  It seems everyone knows someone who got a certain plea deal, or they have a friend of a friend who got a plea deal, and they had the same facts and breath test.  So the logical inference would be can they get the same deal if not better.  In felony land there is something called sentencing guidelines that outline what certain offenses carry as far as sentences.  But unfortunately DUI land, no case is the same.  There are just too many variables.

For example lets consider two DUI cases in two different jurisdictions both with a .14 breath test, and the both where the defendant has no criminal history.  You would think there would be some uniformity in Washington state where both those cases would get resolved in the same manner in terms of plea deal, sanctions, etc.  But even with those stats of .14 breath test, no criminal history, the case can be dramatically different both in terms of evidence, and the end result.  Why is that?

Well first if they occurred in different jurisdictions then you're dealing with two separate courts, two separate Prosecutors, basically two separate everything.  In other words I have appeared in most Courts in Western Washington and even several in Spokane County.  I can tell you there no two Courts that are the same.  Some courts have different types of plea deals.  Some courts have different "sentencing guidelines" when it comes to DUIs.  Additionally there are no two Prosecutors who are the same.  Different philosophies on negotiating, different caseloads, different relationships, etc.  All of these ultimately factor into the end result.  

Another huge difference in those two DUI cases of a .14 I used as an example would be the evidence.  From the reason for the stop, to the signs of impairment noted by the arresting officer inside the vehicle, to the performance on the field sobriety tests, to any statements made by the driver.  All of these factor into a resolution for a DUI case, and I would be willing to go out on a limb here and say no two cases are exactly the same when you look at those factors.  Even if both cases ended a .14 breath test.  

And lastly would be who the arresting officer was.  In my career I have seen officers who are absolutely horrible in their investigation, administration of the field sobriety tests and breath tests, and in their documentation of the arrest.  Likewise I have seen officers who conduct a thorough investigation, who administered the field sobriety tests and breath tests by the book, and who wrote a 7 page police report documenting every little thing they observe.  Now let me ask you this.  Who is more likely to have the better case from a Defense perspective?  The officer who did everything by the book, and thoroughly documented everything.  Or the officer who didn't do anything correctly, and only wrote a 2 paragraph police report that is inconsistent, and holes in it. 

So in the end what do I tell those people that ask this question.  Well I try to explain exactly what I wrote above.  That no two cases are the same, that there are too many variables, etc.  But what I can tell them is in my experience if an individual has never been in trouble before, they weren't involved in a serious car accident, they don't have an extremely high breath test, and they were somewhat polite with the officer then in those cases Prosecutors seem to be more lenient and receptive to the idea of reducing a DUI charge. 

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Matthew A. 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 contact our office immediately to ensure your constitutional rights are protected.  

 

DUI Cop and Defense Attorney work together to get suspect's dog adopted

Earlier this week I wrote a blog about the embattled Utah DUI Trooper who has been fired and is facing several lawsuits for bogus DUI arrests.  As a DUI Defense Attorney I find her actions and behavior completely appalling.  However this type of Cop is on one side of the spectrum, there are plenty other officers who I respect and admire on the other end.  Here is a story about a Seattle Police Officer I know and respect going beyond his "official duties."

You can check out the article here.  But basically the DUI Officer here in Seattle arrested man accused of DUI earlier in the week.  The suspect had a German shepherd dog in his vehicle.  Normally this wouldn't be an issue I suspect.  I have represented several people who have been arrested with animals in their vehicle.  In those cases the arresting Officers allowed my clients to make arrangements to have their animals picked up.  Or in one case the arresting Officer took the dog with my client to the precinct.  Processed my client for DUI, and then released her and her dog afterwards.  

But in this particular case the suspect was getting booked into custody not only because of the DUI but also because of a warrant for his arrest out of California.  Unfortunately for his dog he not only was getting booked into custody, but it also appears he going to be extradited back to California to address this warrant.  So there was nowhere for this dog to go.  I guess the guy didnt have any family or friends here in Seattle, and nobody could be contacted in California.  I'm not sure if there is a policy in the Seattle Police Department on what to do in this type of situation.  But imagine there are some Officers who would just drop the dog off at the animal shelter and be done with it, and who can really blame them.  I mean it is probably not in their official duties to babysit animals of people they arrest. 

But not his particular Officer.  As the article describes he went way beyond his duties in this particular case.  After the suspect was arrested he allowed the dog to sit in the backseat with her owner.  After the suspect was arrested he took the dog to the Animal Shelter.  But he didn't stop there.  He posted a message on his own personal Facebook about the dog, and asked if anyone knew of any families wishing to adopt. Additionally he got in touch with the suspect's defense attorney to check in and try to find a new home for this lovely animal.

As both a dog lover, and a DUI defense Attorney this story really tugs at my heart strings.  I have a dog who my family loves dearly.  If anything were to happen to me or my family I would hope someone would have the heart to look after my dog, and try to find a new home for him.  The fact that this particular Officer did this after an arrest when he could have just went home and never thought twice about it shows the type of character and compassion he has. 

My law firm has had several cases with this particular Officer and I have always found his work to be very thorough and well prepared.  But what has always impressed me his the integrity he seems to have when dealing with these type of cases and with me.  Additionally of all the Officers I deal with on a regular basis he is one of the few who treats my clients with respect, and seems to understand that many of the people he arrests simply made a mistake and he doesn't crucify them or he isn't a jerk to them afterwards.  In my opinion he is a stand up guy and this story just reaffirms what I have always thought of him. 

You see not all stories I blog about are negative when he comes to law enforcement :)

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Matthew A. Leyba is a DUI lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  If you have been arrested contact my office immediately to speak with an experienced attorney to discuss your rights and options.  

Utah Trooper faces lawsuit for making bogus DUI arrests

In case you don't follow my other blog dealing with National DUI news and Information, I want to post my thoughts here on Utah Highway Patrol Trooper Steed and some issues that are occurring back in the great State of Utah.  

If you don't know I'm originally from Salt Lake City, Utah (Go Utes!).  So I follow news from Utah pretty regularly.  As I noted above, I have posted updates about Trooper Steed on my other DUI blog, but want to discuss it here today.

In case you don't know Trooper Steed is a Trooper with the Utah Highway Patrol.  During her 10 years with that Department she built the reputation as the best DUI cop in Utah.  As of today she is out of work and facing a lawsuit.  So what happened to her?  Someone who was seen as a rising star in the law enforcement.  Someone who her supervisors described as having an "uncanny ability to detect drunk drivers."  Someone who in 2009 as a member of the DUI squad shattered the record for most DUI arrests in Utah, more than double the number made by another other Utah Highway Patrol member in the history of the department.  

One word: Accountability, or I guess the lack thereof.  Lets be honest being a police officer has to be one heck of job.  Long hours.  In some cases low pay.  The general public has a certain disdain or distrust for you.  Defense Attorneys are always criticizing and challenging your work.  If you mess up it's on the front page of the news.  I know several officers here in Seattle, and although I'm a Defense Attorney I certainly can respect the work they do.  It seems to me to be like a thankless job for the most part.  

But I think the reason law enforcement has such a bad rap is because of what the general public views as a lack of accountability.  Think about it.  If a cop pulls someone over, makes an arrest, documents certain statements or observations of the suspect.  Who is to say this really happened?  I know cops sign an arrest report under penalty of perjury, and blah blah blah.  But many law enforcement agencies still do not have audio or video capabilities.  Even if the agency does have that capability, not all the officers use it.  Or the cameras are out of position.  Or the mic is not working, or in some cases left off.  Or some other excuse is made.

I can't tell you how many times I have represented someone who adamantly denies something the arresting officer is saying happened.  And how do you challenge that?  You can question the officer.  But if they made something up, or fabricated something, or even embellished it a little they are for the most part not going to deviate from that.  You can have the client testify, but in the end who is a Judge, or Jury going to find more reliable most times.  The cop.  So it is always a difficult position to address when it is one persons word against another.  And the other person happens to be a cop.

But every now and then a cop is caught in a lie, or an inconsistency and everything changes.  Such is the case with Trooper Steed.  As I wrote above she was a rising star with the DUI squad in the Utah Highway Patrol.  Shattering records for arrests, winning awards, etc.  But in the end what derailed her career is the lack of accountability that exists with such officers.  And probably her greed to become known as the Best DUI cop in Utah.  

And it all started with a routine motion to suppress evidence where she admitted on the stand that she left her mic off while on a DUI arrest.  To her credit she admitted to this.  I have had cases in the past where certain officers will swear up and down the mic was malfunctioning or the video was lost in magic land.  I never ceases to amaze me the elaborate tails these cops will weave just to avoid answering a simple question.  But when Steed did this her credibility instantly came under question.

You see there was a long standing rumor in Utah that Steed was fabricating observations she made on her DUI arrests.  Ridiculous things like flat out saying a person was impaired when a breath or blood test would show .000.  Making a DUI arrest when there was absolutely no evidence, and then just flat out making things up in the arrest report.  And nobody was ever the wiser, because there was no way to document what really happened, when it was just her word against the suspect.  

However like all things eventually the truth comes out and many of her DUI arrests were flat out dismissed or not filed due to her penchant for "stretching the truth."  In fact in 2010 a Prosecutor flat out told every Defense Attorney in Utah, and every news outlet that he would not prosecutor any cases where Steed was the primary officer, and the only evidence that existed were her observations.  But think about all the people she falsely arrested prior to this slip up in 2010.  

I can't fathom going through that.  Having the stigma of a DUI driver.  Hiring an attorney.  Going to court endless and stating your innocence and not having the Prosecutor, the Judge, or the very law enforcement agency who is supposed to protect you, believe your story.  That is why I do what I do.  So I can help people in these situations.  Thankfully to those attorneys in Utah, her truth stretching was uncovered and justice is being done.    

In case your interested here is the Steed article.  Read up.  

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Matthew A. Leyba is a DUI Lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other alcohol related offenses.         

How high is too high? Seattle KIRO tests pot smoking drivers for impairment

Now that Marijuana has been legalized in Seattle it was only a matter of time before someone decided to do a "wet lab" in Seattle with Marijuana and publicize the results and findings.  If you don't know what a "wet lab" is.  Its a training that police officers do to help with alcohol impairment detection.  Basically they go to a location, and some volunteers get drunk.  Then the Officers administer the field sobriety tests to the impaired individuals just to get an idea of what it is like investigating people out in the field.

The reason I'm talking about this wet lab stuff is recently a local news station here in Seattle decided to run a little experiment on Green DUIs.  They got some volunteers together and had them drive in a closed obstacle course completely sober.  No alcohol, no marijuana.  Then they had these people smoke a little marijuana, drive some more, then smoke some, then drive again.  I don't know a lot about marijuana since I don't smoke it.  But the name of the strand was pretty cool.  It was called blueberry train wreck.  Each time after the volunteers drove, their blood was taken, and their results from the driving were noted.  Also the news station had a drug recognition expert there to determine in the field the level of impairment.

Some of the results and observations from the "study" were pretty interesting.  Remember the legal limit for Marijuana in your system in Washington State is 5 nanograms.  During the experiment there were three drivers.  They were tested before driving the course the first time.  They were then given marijuana and asked to drive the course a second time.  Their results were compared, along with the different levels of marijuana after a blood test.  In some cases they were given even more marijuana and asked to drive the course 3 to 4 times.

The first driver was a medical marijuana patient who smoked heavily before the experiment.  Before she even started the experiment she was at 16 nanograms from her daily smoking.  So FYI if you smoke a lot it takes a long time for you to get Marijuana out of your system and you're most likely operating at the legal driving limit on a daily basis.  I'm talking to you heavy pot users.  Surprisingly though the instructor said her driving was fine.  It was until she got to 1.6 grams that she started to show signs of trouble.

The second driver was a casual pot smoker who smoked on the weekends.  The initial test showed no marijuana in his system.  He was then given three tenths gram of marijuana to smoke.  His driving was actually pretty good, not revealing any significant decrease in motor skills.  He was then given nine tenths a gram and continued to drive.  At the end of the experiment he was 26 nanograms.  Towards the end of his driving he showed more and more problems driving.  At one point almost hitting a photographer.

The third driver was an occasional pot smoker.  He also showed no marijuana in his system during the initial test.  He was given the first batch of marijuana and again did not show any decrease in motor skills, although it was noted he was driving a little slow.  However like the second driver the more he was given, the more problems in the driving occurred.  At the end of the experiment his level was 21 nanograms.  

So what do I take from these results.  Well to be honest this just affirms the same opinions I had of this so called legal limit when the 502 was initially passed.  It is too low.

First if you're a daily pot smoker, you operate at the so called legal limit every day.  Meaning every time you drive chances are you're over the legal limit and subject to an arrest for a Green DUI.

Secondly based on the driving of the second and third drivers when you're at the so called legal limit there is not much of a decrease in motor skills.  It was not until those individuals were at 4 times the legal limit they showed obvious signs of impairment and difficulty driving.

Lastly, and probably the most interesting is the daily pot smoker, even at higher levels she did not show any signs of impairment from the driving.  In fact the instructor said her driving was fine, and she was borderline whether she would even get pulled over.

If you want to check out the article and see the footage then you can watch, Its titled, How High is Too High

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Matthew Leyba is a DUI Attorney in Seattle, WA.  His practice focuses on representing those accused of DUI and other related offenses.  

Why bring a DUI Attorney to your DUI Arraignment

The other day I was in Seattle Municipal Court and I had the chance to watch a couple of DUI arraignments while I was waiting for my clients case to be called.  In case you don't know the arraignment is the first court hearing that someone faces after their arrest.  So in Seattle Municipal Court generally the arraignment happens a few days after a DUI arrest in Seattle.  Obviously this is a quick turn around.  And most people that get arrested for a DUI in Seattle have never been in trouble before.  So they don't know how to go about getting a DUI Attorney or at least coming to court prepared.  

And that is exactly what happened on the few DUI arraignments I saw.  Particularly two individuals came to court without an attorney, and they left in a worse position then when they arrived.  One case this guy had an alleged BAC level of .15.  He didn't have any prior criminal history.  He wasn't involved in a car accident.  It sounds like he was relatively cooperative with the arresting officer.  The Prosecutor asked the court to impose $2500 bail and an ignition interlock device in his car while the case is going on.  Long story short, there was no bail imposed, but an ignition interlock device was.  The cost of an ignition interlock device is around $100 a month.  So assuming the case lasts 7-10 months.  That is easily could come to a $1000 fee on top of whatever other fees may occur.

The second case was more interesting.  This was a second offense DUI.  Meaning the guy hadn't gotten a DUI two years ago.  But in the recent case his BAC level was .05.  Which is extremely low.  In his case the Prosecutor asked for $5000 bail, and IID, and a scram bracelet.  The scram bracelet is something new in SMC, but it is like an home detention device that detects alcohol from your skin.  It is pretty expensive and a tremendous pain in the ass.  Now despite the extremely low BAC the Judge imposed both an IID, and the $5000 bail.  Needless to say he was not very happy about this, and went off a little on the Judge.  Bad move, but nothing happened.

So what would have happened if either one of these gentlemen had taken the time to hire an experienced DUI Attorney.  Well I cant say for sure.  But I would have argued to the Judge in the first case there was no basis to find the defendant was likely to commit another drinking and driving offense.  The City presented absolutely no evidence of this.  In fact they said if he was allowed to be free there would be a community safety risk.  Well under the rule that is not a factor the Judge is to consider.  There is always a presumption of release unless it can be shown the defendant will likely commit a violent offense in the future, or will not come back to court.  Since the guy had no warrant history, and there was no past behavior of DUI or alcohol related offenses.  I believe the Judge made a bad ruling, and this guy will now have to have an IID because of it.

The second guy is the more difficult case of the two.  Simply for the fact it was his second offense.  But what he had going for him was the allegations.  This was a really low breath test case.  Arguably he didn't violate any of the conditions of his sentence on the first DUI because he did not drive with an alcohol level over .08.  What I probably would have done is get him an alcohol and drug assessment.  He probably would have received a relapse prevent treatment program and I would have provided that to the court to show he is taking this seriously and currently involved in treatment.  Additionally at an arraignment if the Judge does find the defendant is likely to drink and drive again, the least restrictive means possible must be imposed.  In a DUI case that is to abstain from alcohol.  Thus it would be far more lawful, and reasonable to impose that condition instead of the bail and IID.  I would have made a case and really pushed that.

Now it is easy to second guess what happened, and play Monday morning QB.  But what probably isn't up for debate is both of these individuals were obviously worse off because they didn't take the time to meet and hire an attorney.

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Matthew A. Leyba is a DUI lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  He is currently rated a TOP DUI Attorney by Avvo, and a Rising Star by Super Lawyers Magazine in the area of criminal defense.    

Washington Toxicologist: No spike yet in Marijuana DUI cases

The Washington State Toxicologist spoke at a legislative hearing on Olympia this week.  One of the topics she spoke about was the recently new Marijuana DUI laws here in Washington State and whether there has been an increase in blood samples submitted from law enforcement to analyze for Marijuana.  

Surprisingly she testified that there hasn't been an increase in work.  She estimated every year the Washington State Patrol receives about 6000 blood samples from drivers.  Of those 6000, she estimated about 1100 typically are for Marijuana related alcohol offenses.  DUI cases, vehicular assaults, felony DUIs, vehicular homicide cases, etc.  

She said that since the law took effect on 12/6/12 the lab has finished analyzing all the blood samples submitted from December.  Per a previous blog post, stats show this was about 300 cases and now that they have been analyzed, DUI charges are coming down the pipeline.  

She was quite to point out however that this a relatively new law, that the lab has already started analyzing blood samples from February.  With the legal limit at 5 nanograms of active THC, I also suspect this number will increase.  

It is this Seattle DUI Lawyers opinion this is an extremely low level, and everything I have read suggests it is not on par with the alcohol level of .08.  But the push to legalize marijuana by some was so important that they would have agreed anything, including an extremely low legal level.  Yet despite this law I don't believe Washington State will see a dramatic increase in Marijuana DUIs or Green DUIs as they have been coined.  

Unless an individual smokes an extreme amount, most studies suggest the legal limit currently in law here does not show significant coordination issues, or decrease in fine motor skills.  So really the only way for an individual to get arrested for a Green DUI is when there is an accident.  Or an officer just happens to stop someone and smells the odor of Marijuana.  I don't think we will be seeing too many cases where Officers pull someone over for weaving or crossing lanes of traffic.  Which happen to be the most common reasons an individual gets stopped for a DUI. 

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Matthew A. Leyba is a DUI lawyer in Seattle, WA.  His practice focuses on representing those accused of DUI and other alcohol related offenses.  If you have been charged with a DUI contact our office immediately to set up a free 60 minute consultation.     

Beware of the "Green DUI" in Washington State

Since the legalization of Marijuana in Washington State approximately 130 DUI arrests have been made for those allegedly impaired by Marijuana and that number is increasing every day.  This new DUI charge is now being referred to as a "Green DUI."  If you were arrested for a Washington State Green DUI in December 2012, then chances are you DUI charge is in the pipeline and charges will be filed against you any day.  Why does a Green DUI take so long to be filed, when an alcohol DUI can be filed the next day after the arrest?  Well the simple answer is it takes time to have a blood sample analyzed.  

What is the process for a Seattle Green DUI arrest.  As noted above after an arrest for a Green DUI then the suspect is given the opportunity to provide a blood sample.  Once provided the sample is sent to the Washington State Toxicology Laboratory and analyzed by a Toxicologist.  Those results can take anywhere from 1-3 months to get back.  Depending on the volume of cases at the Toxicology lab, and the order the sample is received.  Once those results come back they are sent to the appropriate Prosecutors Office.  

So let's say you were arrested on I-5 by a Washington State Trooper in King County.  That means your King County DUI would be filed by the King County Prosecutors Office.  So after the blood test results come back they are sent to the Prosecutors office.  A prosecutor will then review the blood test results, review the police report, and any other evidence submitted by the arresting agency.  If the Prosecutors feels they can prove a Green DUI charge beyond a reasonable doubt then they will file charging documents with their records department.  The records department then provides that to the Court that would have jurisdiction.  The Court then sends notice to the defendant of their arraignment and the criminal process starts. 

Defending a Green DUI is drastically different than an alcohol related DUI.  Prior to creating a legal limit, Green DUI's were fairly easy to defend.  There were so many different views, and medical opinions on what constituted impairment.  For every expert the Prosecutor provided, the Marijuana DUI Attorney would counter with an expert of their own.  However with this new per se law a Marijuana DUI is going to be more difficult due to just the legal limit.  But like an alcohol related DUI, there are still ways to prepare a defense for this type of charge.  Thus it is extremely important to hire an experienced Seattle DUI lawyer to properly prepare a defense.  

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Matthew A. Leyba is a DUI Attorney in Seattle, WA.  His practice consists of representing those accused of DUI and other alcohol related offenses.  If you have been arrested for a Green DUI or an alcohol related DUI contact our office immediately to set up a free consultation.    

New legislation in Washington State proposing DUI college courts

One of the things I do to keep up to date on the ever changing legal landscape regarding DUI laws is watch the proposed legislation in the Washington State legislature.  You would surprised to hear about some of the proposed laws offered by our State legislators.  One of the more interesting ideas is the proposed legislation of "DUI college courts" under SHB 5023.

The basic premise behind this bill is to address the growing concern of alcohol related offenses, specifically DUI offenses in Washington state college campuses.  RCW 2.28.175 codified last year already created the existence of "DUI courts."  Basically speciality courts designed to help those charged and affected by DUI's by offering intense judicial supervision, rehabilitation, and court ordered treatment. 

I first saw this type of court back when I was working in Spokane when I was working as a DUI lawyer at the beginning of my career.  They used to have courts designed specifically for those charged with DUI offenses.  And one of the aspects of creating these speciality courts was to offer these deals kind of like a deferred prosecution where if the defendant agreed to be monitored by probation, complete an intense alcohol treatment, and completely abstain from alcohol, as well as some additional conditions they would get the benefit of some kind of deal.  Typically what I would see would be an individual facing a significant amount of jail time enter into these types of deals.  It was kind of like a deferred but not since you only get one per lifetime.  The benefit of these deals was a reduction in charges so the jail, fines, and other penalties would be avoided.

The recent legislation of the DUI courts hasn't really been implemented in jurisdictions I practice in so I don't know how they are working.  But as a Seattle DUI lawyer I kind of like this idea of a DUI college court.  From my reading of the proposed legislation it sounds like there may be some benefits for individuals who are in these DUI courts.  Additionally the courts would be on college campuses, and only college students would be allowed to participate.  There is also a clause that would integrate the student code of conduct into these DUI college courts.  This is an interesting idea.

Especially when it comes to college students.  Who are starting out in life.  Building their resume, and worry about employment after graduation.  Obviously a DUI conviction can have a profound impact on an individual, but for a college student it can have severe consequences.  So this idea might be something to help those individuals who make a poor decision after a college party.

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Matthew A. Leyba is a Seattle DUI lawyer.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been charged with DUI contact our office for a free consultation to discuss your rights, options, and how we can help you.   

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.  

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.

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.    

New push to reinstate DUI sobriety checkpoints in Washington State

Recently legislation has been brought forth in Washington state to reinstate DUI sobriety checkpoints.  Currently there are 11 states in the country that do not employ DUI checkpoints, and Washington state happens to be one of them.

This practice ended in the 80's when the Washington State Supreme Court found it unconstitutional.  Now some state lawmakers, including some political action committees want to bring it back citing the increased level of DUI fatalities in Washington state.  According to data they cite Washington State is 6% higher in DUI fatalities than the national average.

Im all for making the roads safer for the residents of the State.  But at what cost should we be doing this.  Washington states constitution provides for greater privacy protections than the US Constitution.  To conduct these roadblocks, pull over, interrogate, and invade a persons privacy rights through unconstitutional searches and seizures is a problem in my mind.  Currently Washington state allows for DUI emphasis patrols.  Im fairly certain that the areas where these patrols are being conducted are areas that have had greater DUI fatalities or DUI related accidents than other areas.  Although I believe these patrols can create potential problems with pretextual stops, this has been found to be constitutional.

The other issue that DUI sobriety roadblocks can cause is the financial burden it will impose on tax payers.  Think about it, to shut down entire roads or areas, man these areas with numerous officers and/or state troopers, the planning and implementing all comes at a cost.  And guess who will foot that bill.  We the tax payers will.  In addition I would be curious as to what percentage these DUI sobriety checkpoints actually result in a DUI arrest.  I have seen some statistics from other states that its less than 1%.  Now to me that doesnt seem like enough of a return to conduct unconstitutional searches and seizures.  But hey I guess thats just the sensible Defense Attorney in me who happens to be concerned with our State budget and increased taxes.

Keep an eye out for this.  HB 1912 in the Washington state legislature.  Should be interesting.

How a DUI arrest can affect a commercial drivers license

A DUI arrest can have many consequences, both direct and collateral.  Everyone knows that a DUI carries jail, fines, alcohol treatment, probation, ignition interlock device requirements, and personal license suspensions.  But if you're a holder of a commercial drivers license (CDL) you face a loss of that license in addition to your personal license.

What I would like to discuss is what happens to a CDL after a DUI arrest in a personal non-comercial vehicle.  From previous blog posts anytime a person is arrested for a DUI they most likely will face 2 legal actions.  One is with the Washington Department of Licensing, and the other is from the Judicial system.  Depending on what happens from either of those legal actions, a CDL holder may be affected.

So lets take a closer look at what happens at the DOL hearing.  First if you win the DOL hearing then there is no CDL disqualification.  If you lose the DOL hearing and its your first violation under RCW 46.25.090(1) then you face a 1 year license suspension.  If you lose the DOL hearing and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.

Now lets look at what can happen in the criminal case.  In a criminal case for DUI charge a person basically has 5 different things that can happen to them.

First if you beat the DUI charge in the criminal case then no CDL disqualification.

Secondly if you get convicted of the DUI and its your first violation under RCW 46.25.090(1) then its a 1 year CDL disqualification.  If you get convicted and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.

Thirdly if you get the DUI charge reduced to reckless driving and you have a prior serious traffic violation within 3 year you will face a 60 day CDL disqualification.  If you have two or more prior serious traffic violations within 3 years then its a 120 CDL disqualification.

Fourthly if you get the DUI reduced to negligent driving then there is no CDL disqualification but it will count as a prior serious traffic offense.

And lastly if you're considering a deferred prosecution from my reading of the statute it is unclear who this will be treated by DOL.  It is clear that a deferred prosecution will not stay the disqualification of the CDL in the DOL hearing.

If you have been arrested for a DUI, and you carry a CDL its important to speak with a DUI attorney that not only understands, but can help you navigate the waters of the CDL and disqualification.  Remember many attorneys out there claim to be DUI attorneys, but reality they are pretenders.  Contact my office today to schedule a free 60 minute consultation that is completely confidential to discuss your options and rights when facing a DUI arrest.

Leyba Defense PLLC | Seattle DUI Firm

Huntington Beach won't put DUI arrests on Facebook

I posted the first article regarding this topic earlier in the week.  It now looks like this idea is being shot down by the Huntington Beach, CA city council.  This new article discusses some of the public backlash this idea was receiving, as well as some of the problems I discussed.  Mainly a person's right to be presumed innocent, and privacy laws to mention a few.

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