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.  

 

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.  

Seismic shift in negotiating policies of major Prosecutor office in Washington state on DUI cases

Over the past 6 months a major change has been in occurring with one of the largest Prosecutor offices in Washington state when it comes to DUI cases.  Due to what the higher ups in the office feel is an inadequate conviction rate on DUI cases compared to other Prosecutor offices in the same jurisdiction.  A new policy has been put in place gradually over the past year and half.  No longer will cases be reduced based on mitigating circumstances or even if the breath or blood test is barely over the legal limit.  If a DUI case has no legal issues resulting in possible dismissal, or suppression of key evidence a reduction will no longer be offered, and the recommended plea will be to plead guilty as charged.

So what does this mean in lay mans terms.  Basically prior to this policy if an individual was charged with a DUI, it was a first offense, there was no car accident involved, and the breath or blood test was below .12.  Then the opening offer from the Prosecution would most likely be a reduction in charges.  This was due to the long standing tradition of this particular Prosecutors office making the best offer up front.  Unlike other Prosecutor offices where often times the initial plea deal offered is to plead guilty as charged to the DUI, and then through extensive negotiations the charge could possibly be reduced.

The reasoning behind this charge is from what I understand the higher ups in the office are not pleased with the DUI conviction rates compared to another Prosecutors office in the same jurisdiction.  The difference is pretty substantial when you look at the numbers.  So because of this no longer will reductions be offered in most cases unless there are severe legal issues.

As a Seattle DUI lawyer, I must say that I do not agree with this policy change.  Not because of the thinking to increase the DUI conviction rate.  Even though I don't agree with that, DUI cases have a lot of negative publicity.  An election is coming up.  From a political standpoint it makes sense.  But what I don't agree with is two things.  First the thinking that because another Prosecutors office has a higher conviction rate, somehow this is a competition and one office needs to out do another office.  The second issue I have is the lack of any sort of discretion to offer a plea deal on cases they may not have severe legal issues, but have mitigating circumstances.

I have blogged about this before.  But if a Prosecutor I would take the following stance on DUI cases when it comes to negotiating.  If the case was a first offense.  There was no accident involved.  The alcohol level is not extremely high.  The individual was cooperative with the arresting officer and polite.  The individual has completed their alcohol and drug evaluation, along with the ADIS and VIP classes.  And if the individual was willing to do a significant amount of community service then I would offer a reduced charge.

My thinking behind this is two fold.  First if its a first offense, and there were no injuries then nothing bad has happened.  Secondly if the individual was cooperative with the officer, proactive with all their classes, and willing to pay for this mistake through volunteer work that would benefit the community then clearly they are showing a remorse and a certain accountability through their actions.  Which in my opinion speak louder than words.

But I guess that is why I'm a Seattle DUI lawyer, and not a Prosecutor.  So how will this new policy shift affect new DUI cases that fall under this Prosecutors jurisdiction?  Well gone are the days where a supposed DUI Attorney with know experience can walk into court not knowing a thing about DUIs, and get a reduced charge because the breath test is not very high and its a first offense.  Now a days it is even more important to hire an experienced DUI lawyer that knows the law, understands the subtle nuisances of DUI defense, and has the necessary trial skills should the case get that far.   

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Matthew Leyba is a DUI Attorney in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  He has a high success rate in defending DUIs, and has litigated over 100 jury trials.  If you have been arrested for DUI contact our offices immediately to set up a free consultation and ensure your constitutional rights are protected.  

Sandusky still defiant!

Today Sandusky was sentenced to the 45 or so counts of child molestation and other unthinkable, and horrific acts he engaged in.  Essentially the Judge gave him a life sentence, although it was at the low end of the sentencing range of 30 years.  I think Sandusky is 65 years old right now, so basically he will spend the rest of his life behind bars like he deserves.

I was watching the news channel this morning as I was getting ready for work.  Apparently Sandusky made some statements from jail the night before.  Im not going to get into the statements because he obviously is a sick individual who has major, major problems.  And I don't want to waste any of my thoughts and time rewriting what this loser said.

Some of you may wonder why I'm bringing this up since this is a blog by a Seattle DUI Lawyer.  Basically as I was hearing some of the things coming out of Sandusky's mouth and the defiance he still showed despite being convicted by a jury of his peers.  I got to thinking to myself.  This guy must be an idiot.  Lets forget that he is guilty as sin, and all the evidence against him was insurmountable and damning.  This creep is going into his sentencing hearing tomorrow.  And rather than show remorse.  Rather than accepting responsibility.  Rather than apologize to the countless individuals, who's lives were forever ruined by this guy.  He is still spouting off about how this is a conspiracy, and he didnt do these things.

I just thought it was amazing that he would be saying these things.  Especially considering the Judge could do whatever he wanted to Sandusky.  Simply an idiot.  But I guess that is why he is going to prison forever, and hopefully he gets what he deserves down there.  It would be fitting if he was assigned to general population.

Anyway I digress.  The point of this blog is to address DUI issues.  So if you have ever been arrested for a DUI and you're facing a sentencing hearing.  Whether that is after a jury trial conviction, or a guilty plea.  Some words of advice from a Seattle DUI lawyer.  Don't do what that idiot Sandusky did.  Now I realize these are two completely different offenses, and situations.  But if you're in front of a Judge on a DUI sentencing.  If you don't feel remorse, if you don't feel like telling the Judge you screwed up and you learned your lesson.  Then don't say anything at all.  Otherwise the Judge is just going to hammer you, and on a first offense DUI that is something you dont want to deal with.

Anyway I apologize for going off topic today with the Sandusky mess.  But it just amazed me this guy is that clueless.

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Matthew A. Leyba is a Seattle DUI Attorney in Western Washington.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for a DUI contact our office to set up a free consultation.

Seattle DUI arrest after Packers football game

Last night was a big day for the City of Seattle.  The "Clink" hosted the Monday night football game between the Seattle Seahawks and the Greenbay Packers.  Every time there is a big event like this.  Whether it is a big football game involving either the Huskies or the Seahawks there will be increased DUI Patrols in downtown Seattle as well as the main freeways including I-90, I-5, and SR520.

If you were arrested last night it is important to contact a Seattle DUI Lawyer ASAP to first ensure your constitutional rights are protected, but to also discuss your options and what may likely happen to you.  Like all professions there are bad ones and good ones out there.  Here are a couple of things to look for when deciding who to NOT contact.  Any attorney who sends you a solicitation in the mail is probably not the right fit for you.  Any attorney who doesn't practice exclusively in the area of Seattle DUI Defense is probably not going to help you much.  And lastly any attorney who hasn't litigated more than 25 DUI trials in the career tells you all the do is plead people guilty and not fight on behalf of their clients.

The best bet to look for his a referral from family, friends, or other attorneys.  Usually an attorney that is recommended from someone else shows that attorney did good work, and was able to get the kind of result where someone would say "hey hire this guy he got my Seattle DUI Dismissed."  Likewise if an attorney recommends another attorney, that is a good sign of quality work.

If you were arrested for a DUI last night in Seattle after the Packers game you might have an arraignment in the next day or so.  Try not to stress out about this, and call a DUI lawyer.  They will be able to help calm your fears, but more importantly discuss all your options and likely outcomes in your case.

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Matthew A. Leyba is a Seattle DUI Lawyer.  His practice focuses exclusively on DUI defense in Western WA.

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.

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.    

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

Possible new legislation requiring vehicles to be impounded 12 hours after DUI arrest

Click above to read an article discussing Hailey's Law SB 5000 which would require all vehicles to be impounded after a Seattle DUI or Washington State DUI arrest.

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