DUI arrest in Seattle and you're a Pharmacist....what happens next?

If you have been arrested for a DUI in Seattle or anywhere in Washington State and you're a Pharmacist then you could face the possibility of some serious job repercussions depending on the final outcome of your case.  It is best to contact a Seattle DUI Attorney immediately to determine what your next steps should be.  

RCW 18.130.180 lays out what conduct, acts, or conditions constitute unprofessional conduct for a license holder.  It discusses the commission of an act involving moral turpitude, dishonesty, corruption, and the conviction of a gross misdemeanor or felony.  And yes a conviction for DUI is a gross misdemeanor and therefore one of the reportable offenses that would affect a Pharmacist.

However upon a closer look at the statutes involving these issues WAC 246-16-210 states a conviction means a court has decided a person is guilty of any gross misdemeanor or felony.  It includes guilty, no contest, and deferred or suspended sentences.  

Now generally when a driver gets arrested for a DUI and they contact my office for legal representation.  Typically the goal is to try and get the DUI reduced to a lesser charge.  Either reckless driving or negligent driving 1.  Both of these are lesser offenses than a DUI meaning they don't carry nearly the consequences a DUI does.  

However if a Pharmacist is involved then even a DUI amended to reckless driving may still cause problems, because a reckless driving is a gross misdemeanor.  Whereas a negligent driving 1 is called a simply misdemeanor, which is not mentioned in the statute concerning consequences for license holders.

So what happens if a Pharmacist gets convicted of a DUI or reckless driving.  Then you need to check out WAC 246.16.860 which determines the sanction.  For a conviction of a gross misdemeanor the minimum conditions may be some sort of reprimand, training, monitoring, probation, or supervision.  The maximum penalty could include oversight for 5 years involving the same sort of probation, training, supervision, etc.  

So the good news at least based on the current status of the law as of writing this blog is it looks like a first offense DUI or reckless driving conviction may not result in the suspension of a license.  Rather it may involve some sort of supervisory condition, although that is at the discretion of the Department of Health.  Obviously if an individual has multiple offenses or other charges then something more serious may apply and it would be important to seek counsel for an experienced Seattle DUI Attorney.

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About the author:  Matthew Leyba is the owner of Leyba Defense PLLC.  A boutique DUI law firm located in Seattle, WA.  He has been repeatedly recognized as one of the best DUI Attorneys in Seattle by the Seattle Met Magazine's annual "Best of" edition.  He is also the highest rated DUI Attorney according to Avvo.com, a lawyer rating service. 

What is a "nolo contendere" plea in a DUI case

If you have been following the news lately, specifically news related to the NFL.  You undoubtedly will have seen that Aldon Smith of the San Francisco 49ers recently resolved his criminal problems via a "nolo contendere" plea.  He entered this plea to three felony counts and two DUI counts.  If you like you can read it about it here.  So what is this "nolo contendere" plea and how does it work?

Well first of all what does it mean.  "Nolo contendere" is a latin phrase that translates to no contest.  In certain U.S. jurisdictions this type of plea is allowed where a defendant enters this plea of no contest.  Neither admitting guilt nor disputing the charge.  It effectively works as a guilty plea in the sense the charges still result in a conviction, the defendant is still sentenced as if they pleaded guilty.  Unlike a guilty plea however the defendant may not be required to allocute the charges.

So why we Aldon Smith do this.  If you followed his cases then you know there was a lot of evidence stacked up against him.  Due to the string of criminal offenses, plus his notoriety he problem wasn't going to be them.  This was a way for him to take responsibility but not admit guilt.  Its a technicality but still shows some accountability on his part.  

Now this is a Washington State specific blog.  So if you're wondering whether Washington State would allow a "no contest" plea on a DUI case.  Unfortunately not.  However we do have what is called an Alford Plea.  Many view it the same as a no contest plea.  Although there is different terminology.  

In an Alford Plea on a DUI case here in Washington State.  A defendant would say they believe there is enough evidence to convict them of the DUI.  Therefore they wish to take advantage of the Prosecutors sentence recommendation and enter an Alford Plea.  They understand it will result in a conviction the same as if they went to trial.  

How often does an Alford Plea happen in DUI cases here in Washington State.  Not many.  In my 10 years I think I have only entered one Alford Plea.  Most times Prosecutors will not allow it because they want the defendant to actually say they are guilty.  Additionally if a person is pleading guilty to a DUI or even a lesser charge they probably don't believe they are completely innocent.

However an Alford Plea is an option a defendant would have in Washington State.  If it is something that interests anyone facing a DUI in King County, WA and you're reading this blog feel free to contact my office and we can discuss the pros and cons of it.

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About the author:  Matthew Leyba is a DUI Lawyer in Seattle, WA.  He is rated a perfect 10 out of 10 by Avvo.com, a lawyer rating service.  Additionally he has been repeatedly named a Rising Star in the area of DUI Defense by the Seattle Met Magazine, an honor less than 2.5% of all lawyers receive in their respective field of practice.  Contact Leyba Defense to find a DUI Attorney in the Seattle area.   

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

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

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

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

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

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

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

Can you drive a vehicle if your license gets suspended from a DUI in Washington State

The most common question I get asked is whether you can drive a vehicle if your drivers license get suspended due to a DUI.  In Washington State the answer yes.  However there are certain conditions that can apply that may or may not restrict your ability.  Keep reading to learn how you can continue to drive lawfully following a DUI in Seattle or Washington State.

The first question that needs to be asked is what type of license suspension are you dealing with.  Basically there are three types that would be applicable in Washington.  

1. Administrative license suspension from the DOL
2. Drivers license suspension for a reckless driving reduction
3. Drivers license suspension following a DUI conviction

So if you're facing an administrative license suspension than you have two options.  You can choose not to drive and then apply for your drivers license following the suspension period.  Assuming of course there are no other holds or actions against the drivers license.  The second option is you can apply for the ignition interlock license which would allow you to drive during the period of suspension.  

To qualify for this license the applicant needs to do four things.  Fill out the application for the license, second the DOL a check for $100, get SR 22 insurance, and get a functioning ignition interlock device in the vehicle.  It usually takes DOL about 3-5 business days to process the application and approve the ignition interlock license.  

If you're facing a license suspension for a reckless driving conviction.  Then you need to apply for both the occupational license, unless the suspension was a reduction from DUI.  Then you need to apply for both the occupational and ignition interlock license.  Its the same application but there are different conditions (i.e., ignition interlock device requirement).

If you're facing a license suspension for a DUI conviction.  Then you really only have one options.  That is apply for the ignition interlock license.  See the section above on how to do that.  

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About the author:  Matthew Leyba is a DUI lawyer in Seattle, WA.  He has been rated a perfect 10 out of 10 by Avvo.com and listed as a Superb Seattle DUI lawyer.  He also has been repeatedly recognized as a Rising Star in the area of DUI Defense by the Seattle Met Magazine, an honor only 2.5% of all lawyers are given.  You can read is bio here.   

Suspected DUI driver on I-5 attracts 15 separate DUI calls

On New Years Day a driver who was weaving on I-5 in Pierce County caused 14 separate 911 calls from other drivers.  It appears the driver was driving pretty erratically on the freeway including traveling on the shoulder, crossing lanes without signaling, and traveling at inconsistent speeds.  Now even though Im a DUI lawyer in Seattle, I'm all for making the streets safer in our State.  And despite what I do Im not in favor of drinking and driving.  However lately I have been seeing an increase in these types of phone calls from citizens and it has me concerned.  

In fact I recently blogged about this on my website and how a 911 caller reported a suspected drunk driver in Seattle that turned out to be a Seahawk football player.  The football player was followed all the way into downtown by the 911 caller and was eventually stopped and arrested for DUI by the Washington State Patrol.  

As stated above lately I have been seeing this more and more.  I think it is in large part due to the negative publicity that DUIs have been getting in King County since the beginning of last year.  Remember we had two separate vehicular homicide cases in a matter of weeks.  Both of these drivers have prior DUIs and were in violation of court ordered ignition interlock devices.  In response to those incidents as well as some others the media, the general public, and the State Legislature demanded change in the DUI laws.  It seemed like every time I turned on the news or read the paper there was something DUI related and how we needed to toughen our laws to prevent these types of incidents from occuring.

The laws were changed, so Im not going to rehash that.  But what has also been a direct correlation to the media frenzy is the rise in 911 callers.  These "vigilantes" are in some cases following suspected drunk drivers, and conducting citizen arrests.  Most of the time however they are reporting the driver to the police based on nothing more than some weaving within the lane.  

In fact in the past year I have had several former clients involved in these kind of fact patterns.  And the concern I have when these "vigilantes" decide to report a drunk driver in the hopes of getting them arrested is the fact they have no idea what they are talking about.  For ever 911 call that was like the one I described in my first paragraph there are probably 50 more where the alleged drunk driver is not actually drunk.  In fact every case I have ever represented where there was a 911 caller the breath test ended up showing the driver was not over the legal limit.  And in most cases the driving was due to something else like playing with the radio, making a phone call, or fiddling with GPS.  

Did those people that called the police on the driver prevent a DUI in Pierce County.  Perhaps.  But think of all the other times people get stopped, detained, and in some cases arrested when they have done nothing illegal by having a drink and then deciding to drive home.  As I stated in my blog on my website.  Nowadays you not only need to worry about law enforcement, but also the "vigilante" 911 caller.  Remember if you had a glass of wine at dinner or a single beer while watching a football game, you decide to drive home and on the way there you get a text message look down at your phone a cross the lane divider.  If one of these vigilantes is behind you, they will call 911.  You will eventually get stopped by the police and arrested for a King County DUI.  Regardless of what your alcohol level is.  

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About the author: Matthew Leyba is a DUI lawyer in the Bellevue Seattle area of Western WA.  He has been named a Rising Star in the field of DUI defense by the Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive.  He also is rated a 10/10 by Avvo.com among Seattle DUI lawyers.   

DUI Prosecutor pleads guilty in his own DUI case

A DUI Prosecutor in a small town in Washington State pleaded guilty earlier this week in his own DUI case.  Back in June the Prosecutor was stopped by a State Trooper just after midnight for driving without headlights on in the downtown of this City.  The Trooper found the Prosecutor had slurred speech, flushed face, watery red eyes and a strong odor of alcohol on his breath.  The Prosecutor was offered field sobriety tests, and a breath test.  Both of which he refused.  

Now the purpose of this blog post is not to make fun of this Prosecutor.  He made a mistake and I'm a firm believer that a DUI arrest can happen to anyone.  And it certainly it not a situation to make light of nor am I trying to embarrass this guy.  That is why I have not included any links to the articles, mentioned his name, or even included the town of the arrest.  

The purpose of this blog post is to show you how legally educated individuals who are on the side of the Government view the field sobriety tests and breath tests in a DUI case.  In fact I have previously blogged about a Judge in Snohomish County who was arrested for a DUI last year.  In that case he refused the field sobriety tests and the breath test.  Here we have another Attorney who is familiar with DUI laws, actually prosecutes DUI cases and he also refused the field sobriety tests and the breath test.  

Why is that?  Why do these Attorneys who are more familiar with the aspects of a DUI investigation continue to exercise their right to remain silent and not do any tests.  Because these tests are flawed and regardless of how you perform you will get arrested and regardless of what your breath test is you will get charged.  No matter what.  So why give the Prosecution evidence in your DUI case.  Heck if you decline these tests there is always a chance the DUI charge will not get filed.  That is what happened in the case involving the Judge and I have had this happen to several of my clients.

If you read this blog with any sort of regularity then you know my advice as a Seattle DUI Lawyer is to do the following if you're being investigated for a DUI.

1. Be polite
2. Decline to perform any field sobriety tests
3. Decline to provide a portable breath test
4. Ask to speak with an Attorney immediately after you get detained

If for some reason you questioned my advice with regards to the field sobriety tests, and possibly declining the breath test.  Then you should follow the actions of these two Attorneys who recently faced DUI arrests in Washington State.  

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About the author: Matthew Leyba is a DUI Lawyer in Bellevue, WA.  His practice focuses on representing those charged with DUI and other traffic offenses.  He is rated as a Superb DUI Attorney by Avvo, and was named a Rising Star in DUI Defense by the Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive. 

The financial costs of a DUI conviction

Whenever a person gets charged with a DUI they face some fixed costs.  The cost of the Attorney fees, an alcohol/drug assessment, and at minimum the cost of the ADIS and VIP classes.  These will not change whether the DUI charge gets reduced to either a Negligent Driving 1, or a Reckless Driving or whether the person gets convicted of a DUI.  However a DUI conviction carries much more in additional costs that are often overlooked or simply not known.  Here are the top 5 hidden costs that come with a DUI conviction.

1. Probation:  This is probably one of the biggest costs.  If a defendant gets convicted of a DUI.  Whether it is a first offense or a second in most cases a Judge is going to refer the defendant to the probation department.  In addition to that the defendant will be on records check for the duration of the 5 years of probation.  The cost of a probation officer is usually about $40 a month.  Typically this will last for 2 years.  The cost of the records check is $10 a month.  Total cost $1560.
2. Ignition interlock device: This is the other biggie when it comes to a DUI in Seattle.  On a first offense DUI the Court will impose an ignition interlock device.  This will need to be installed on any vehicle the defendant drivers for a period of 1 year.  Most ignition interlock companies charge around $100 a month for the device.  There is also an installation fee, and monthly calibration fees.  The cost of an ignition interlock device for 1 year is approximately $2000.
3. Court fines: The base Court fine on a DUI is between $1000-$1200 depending on the blood alcohol level.  
4. Insurance increase: A DUI carries two types of insurance increases.  The first is the requirement of SR22 insurance that comes with any sort of drivers license suspension.  On a first offense DUI in Seattle or Washington State SR 22 insurance is required for at least 3 years.  I have seen this cost vary depending on the driver, who they go through for insurance, etc.  But I would say on average it is an additional $50 a month on top of your regular insurance policy.  The second increase would be on your insurance policy.  That is if your insurance company doesn't kick you off.  Which I would say happens about 90% of the time.  Estimated cost is an additional $200 a policy term.  
5. Unknown costs: These are the costs that you cannot possibly know at the time of the DUI sentencing.  For example let say you want to rent a vehicle in the near future following a DUI conviction.  Well most car companies are not going to rent you that vehicle.  The unknown cost would be figuring out an alternative to renting a vehicle.  Maybe it is cab fares, maybe a town car with a driver is rented.  This is just an example.  The cost of this unknown fees can be astronomical and are far too numerous to discuss on this blog, but you get the hint. 

Overall if you're facing a DUI charge in Seattle then you should be well aware of the importance of hiring a good DUI Attorney to get the charge dismissed or reduced.  Even spending $5000-$7500 on a DUI Attorney may seem like a lot of dough.  But when you compare it to all the hidden costs for the rest of your life you will be facing, I think it is money well spent.  Otherwise if you want to go the cheap route then there are plenty of so called DUI Attorneys in Seattle who will take your case for $1000 and get you to plead guilty at the first chance they get.  

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About the author: Matthew Leyba is a DUI Lawyer in the Seattle Bellevue area of Western WA.  His practice focuses on representing those charged with DUI and other traffic related offenses.  He is currently rated as a Superb DUI Attorney by Avvo, and a Rising Star in DUI Defense by Super Lawyers Magazine and Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive. 

DUI arrest in the City of Bellevue....Now what

If you get arrested for a DUI in the City of Bellevue then you case will be filed in the King County District Court - East division.  Even though it is a District Court the Prosecutor will be the City of Bellevue.  Typically if a defendant's case is in a District Court then the Prosecutor would be the County of the arrest.  So it can get a little confusing.  Here is the basic info regarding this Court.

Your arraignment date will typically be a month or so after your Bellevue DUI arrest.  Unlike the City of Seattle Attorneys Office in the Seattle Municipal Court or even the King County Prosecutors Office it takes the City of Bellevue a little bit longer to file a DUI charge.  Once they decide to file the DUI charge then you will receive a notice of Court date from the County indicating the date and time of your hearing.  Usually it is about two weeks away and you're required to be there.  If for some reason you cannot make it (i.e., you're out of town, or in treatment) then a continuance request can be made to change the date of the arraignment.  However this date will not be moved if you're simply too busy or you have to work.

The Courthouse itself is pretty small.  There are two Courtrooms occupied by Judge Garrow, and Judge Steiner.  Both have been Judges for quite some time so they know what they are doing.  The line can get a little long in the mornings, especially during trial week because there is only one metal detector and it always seems to be really sensitive.  FYI take off any belts, and watches.  Mine always seem to set the thing off.

As far as the actual DUI case in Bellevue goes.  The Prosecutors are tough to work with.  If you have a breath test over a .10 then they are not going to offer a reduction unless there are serious legal issues.  And even the reduction they do offer will more often than not be to reckless driving and not the lower charge of negligent driving 1.  

Lately it seems like I have been going to trial a lot on DUI cases in Bellevue.  My opinion on the juries out there are they are really conservative.  The last pool I had they were highly educated, a lot of Microsoft employees, engineers from Boeing, etc.  They were older.  Looking back on it there was only 3-5 potential jurors under the age of 35.  This can make for a difficult jury, especially in a DUI case where these types of jurors tend to not be as familiar with having a drink or two at dinner, or at least not be sympathetic to it.  Additionally since they work in fields involving math, and science they are more likely to place greater weight on the breath test results, field sobriety test results, and any other expert testimony offered by the Prosecutor.  I will say they are smart.  So a defense expert would not be lost on them.

Overall this is a pretty tough place to have a Bellevue DUI.  The Prosecutors can be tough to negotiate with.  However in my experience since the Bellevue Police Department doesn't have the experience of say the Washington State Patrol when it comes to DUI investigation they are more apt to make mistakes which can be capitalized by the Bellevue DUI lawyer.

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About the author: Matthew Leyba is a DUI lawyer in Bellevue.  His practice focuses on representing those charged with DUI and other traffic offenses.  He is currently rated as a Superb DUI Attorney by Avvo, and a Rising Star by Super lawyers Magazine.     

UW All American arrested for DUI....It can happen to anyone

University of Washington All American Tight End Austin Seferian-Jenkins was arrested for a DUI over this weekend in Seattle, WA.  Normally I don't like to just post links to articles on my blog, but rather write some substance and relevant content for the readers.  

The reason I'm doing this today is to show that if a UW All American can have a Seattle DUI arrest, anybody can.  Here is a guy that has everything going for him.  I have watched him terrorize my Utes time and time again.  Heck he is so good that last year he was playing defensive end in the Utah game and just dominating our offensive line.  But despite all this, he is not immune to a DUI arrest, and neither are you.  

Most people out there think that if they have a couple drinks, and they eat something then they are okay to drive.  Well I'm here to tell you the game has changed, and that no longer is the case.  In fact it is my professional and personal opinion that the legal limit of .08 doesn't matter to law enforcement.  Remember when I posted an article about a Washington State Trooper saying he doesn't care what the legal limit is of the people he arrests for DUI.  That it is his job to take people off the street that he feels are impaired, regardless of what their blood alcohol content is.

Now I don't know what happened in this case.  But I find it hard to believe that Seferian-Jenkins would risk everything he has worked for if he didn't think he was okay to drive.  Could he have made a mistake and had a few too many drinks?  Perhaps.  Did he think that a few drinks would not affect his ability to drive, and did he buy into the hype that is put out there that a drink an hour some how makes you immune from a DUI arrest.  Perhaps.  

The point I want to make is just don't drink and then drive.  Regardless of what you eat.  Regardless of how many glasses of water you have.  Regardless if you limit yourself to a drink an hour.  Now a days you will get arrested regardless of what you alcohol level was.  I once represented a client who had a .03 blood alcohol content.  Let me repeat that a 0.03.  That is probably the equivalent of a half a glass of wine.  In the end I was able to get her DUI dismissed.  But she still had to go through the court process.  She still had to hire an attorney.  And she still had to go through the shame of being arrested for a DUI.  

The other point I want to make is if for some reason you find yourself in the position of being investigated for a DUI by the Seattle Police, Washington State Patrol, or any other police agency in Washington State.  For love of god please don't do the field sobriety tests.  These tests are completely voluntarily, and you have the right to not do them.  

I can't tell you how many times I have represented people who have a very low blood alcohol level, but yet somehow they managed to fail these tests.  Now whether they actually didn't perform well, or the arresting Officer was a bit overzealous and perhaps embellished portions of the performance.  It doesn't matter.  At every stage of the criminal process your performance on those tests will be used against you.  And guess what no matter how you think you did, the arresting Officer will always say you failed.  That is just the name of the game unfortunately.  

So bottom line.  Don't drink and drive.  Don't risk everything you have worked for.  But if you do find yourself in Mr. Seferian-Jenkins position then do the only thing you can control and hire the best Seattle DUI lawyer you can find to help navigate you through the process, and try to minimize the consequences and risks you face.

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Matthew Leyba is a Seattle DUI Lawyer who represents clients accused of DUI and other related offenses.  He is currently rated by Avvo as a 10/10, listed as a Top DUI Attorney in his field, and was recently named a 2013 Rising Star by Super Lawyers Magazine in the field of DUI defense.  A honor less than 2.5% of Attorneys receive.    

Is a green tongue enough for a DUI arrest?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.    

Don't do what the "Adios girl" did

In case you have not seen or heard about the "Adios girl."  Here is what happened.  An 18 year old young woman was in custody in Florida on drug possession charges.  She must have been appearing at some kind of first appearance calendar where PC to hold is found, or a bail hearing.  Anyway there is a video of it, and it has become a viral sensation.

Basically the woman appears in front of a Judge.  She is laughing, playing with her hear, and kind of flirting with the Judge in her own weird way.  The Judge takes this as a sign of disrespect, and sets her bail at $5000.  He then says "bye-bye."  She responds by saying "Adios," as she is walking away.  The Judge then gets mad over this comment and calls her back in front and doubles her bail to $10K.  He then dismisses her and says, "Adios."  She gets outraged by this increase in bail, and says F- You to the Judge before flipping him off.  He then calls her back and immediately sentences her to 30 days in custody for contempt in court.  

Clearly this woman lacked any kind of manners, or common decency.  I mean I understand you're pissed off that your in jail.  But it is probably not a good idea to piss off the one person who is deciding whether to keep you in custody or not.  Below is a picture

This spectacle reminds me of case I once saw.  It was back in Seattle Municipal Court.  It must have been 6-7 years ago.  Anyway I remember it was in front of this Judge who was very similar to the one from this video.  Often times he would just go off on defendants.  Impose year long sentences from the stupidest things.  Frankly I don't know why it took him so long to get voted off the bench.  

But anyway I digress.  I remember this incident like it was yesterday.  It was the day before Christmas.  The afternoon calendar.  Nobody was really there, it was pretty light.  The case was where some defendant was trying to fire his public defender because he wanted his misdemeanor charge to be a felony so he could have a twelve person jury instead of six.  I know it sounds crazy, but this is what the defendant really wanted.  Anyway he started to argue with the Judge about the twelve person jury thing.  I remember the Judge took his fingers and put them in his ears and starting singing, "Nah Nah Nah I can't hear you."  It was really quite funny.  It was kind of like this Judge was saying, "nener-nener" like a little kid.  

The Judge then told the defendant to shut up and he was done talking about this hearing.  As the defendant was being hauled back into custody he said something to the Judge.  I want to say it was an F-bomb, but I cant exactly remember.  The Judge then calls the defendant back into custody and imposes a sentence of 1 year.  Even though the defendant hadn't plead guilty or anything.  This was still in the pretrial stage.  Both the defendant attorney and prosecutor told the Judge I don't think you can do that.  But he said I don't care and stormed off the bench.  It was really bizarre and as everyone in the courtroom was left wondering what the hell just happened.  

So what is the point in bringing all this up other than for the humor.  Well the moral of this story is very simple.   Don't piss off the Judge who is presiding in your case.  Whether you're at a bail hearing.  Whether you're at a motion hearing.  Or whether you're at a sentencing hearing.  Judge's are human too.  They let things get to them.  Their buttons can be pushed.  And like everyone else they can act irrationally.  

As a Criminal Defense Lawyer the first thing I always tell clients before they appear in front of a Judge is to act in a respectful manner.  Judge's eat that stuff up.  Particularly this is very important before we do a sentencing hearing.  I always tell my clients the same thing.  "After the Judge is done speaking with you about the plea form, they will ask you if you have anything to say regarding sentencing.  You can choose to say something or choose not to.  If you don't feel like you should be here, or this whole situation is BS.  Then it is probably best to keep those thoughts to yourself and not say anything.  Remember this is the person that can decide whether you stay out of jail or go to jail for a long time. It is best not to piss them off right before they sentence you."  

Someone should have told Ms. Soto this before she appeared in front of that Judge in Florida.  Poor girl now has to sit in custody for 30 days because she was acting like a brat.  

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Matthew A. Leyba is a Seattle DUI Attorney 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 for a free no hassle 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.    

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.  

Starting today all Ignition Interlock Devices must have a camera

If you have been arrested for a DUI in Washington state.  Then you face the possibility of an ignition interlock requirement.  For a first offense conviction it is 1 year.  For a second conviction it is 5 years.  For a third conviction it is for 10 years.  Obviously a second and third conviction come with a lengthy time frame.  But in addition to that comes a hefty price.  And this price has just increased.

As of 1/1/13.  All ignition interlock devices here in Washington state must come with a camera. Ignition interlock devices which require a clean breath sample before a car can be started have long come under scrutiny for their reliability in ensuring the driver is the actual person providing the breath sample.  What the proponents of these new camera ignition interlock devices claim that drivers are not the ones blowing into these devices.  Sober people, friends, anyone else provides the sample.  Because it reads no alcohol, then the car is allowed to start.  

However in my opinion I have not seen any data or cases suggesting this is true.  In fact Im willing to bet these proponents would be hard pressed to find cases where a driver has an IID device, and still gets arrested for a DUI, or gets involved in an accident.  But I guess that is why Im a Seattle DUI Lawyer and not a member of MADD.

Anyway as with anything.  These new IID devices come with an increased cost.  It is a pretty nominal fee per month.  From what I have seen it will be around an additional $10 a month.  But add that to the ever increasing cost of getting a DUI, and it is just a another fee that breaks the bank.  

So how does the camera work?  Well it takes two pictures.  The first time is when the device alerts the driver he or she needs to blow into it.  The second picture is actually taken when the driver is blowing into the device and providing a sample.  Essentially by doing this it virtually eliminates any chance of someone else blowing from the passenger side of the vehicle or from the back seat.  

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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.  

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.  

DUI limit really more of a guideline for state troopers in Washington State

I came across this article earlier this week from MyNorthwest news.  The author follows a State Trooper who is a member of the target zero task force on a ride along.  The Trooper arrests an individual in Ballard, Seattle for DUI.  It talks about what happened, what the law is, blah, blah, blah.  Pretty standard article dealing with this subject matter.  But as I was reading this article I was struck by this statement the Trooper made regarding his philosophy on arresting individuals for DUI in Seattle.

Trooper Brock, the arresting officer states, "I [couldn't] care less about what they blow; if they're below the legal limit, at the legal limit or five times the legal limit," said Trooper Brock, who is member of the Washington State Patrol's Target Zero Team. Their goal is to reduce deaths on the roadway.  I don't worry about what's going to happen six months or a year down the road in court," he said. "I know when I go home every single shift that if I took someone off the road, I'm 100 percent positive they were not supposed to be driving a car."

So there it is.  If you smell like alcohol, you will get arrested.  Regardless if you consumed 20 shots of tequila (which would be very impressive) or whether you had half a glass of wine.  Troopers around this State don't care what your legal limit is.  This is something that I have written before on my blog, but it's worth noting again.  If you have had 1 drink you will get arrested.  The police do not care about the legal limit and whether you're over it.

I can't tell you how many people I have met with that simply just don't understand how they can be arrested for a DUI when their breath or blood test is below the legal limit.  Heck I have represented a client before on a Seattle DUI arrest with a .03 breath test.  Based on this particular Trooper's statement law enforcement simply do not care what your alcohol level is.   

Now why is this important to note.  How many times do I meet with people who say, "well I only had 1 drink, I thought I was ok to drive.  I thought I would pass all the field sobriety tests."  What this article reveals is you can pass all the field sobriety tests.  You can honestly tell the arresting officer you only had 1 drink.  But you will still get arrested.  You will still get taken to the police statement.  You might be booked into custody and spend the night in jail.  You will still have to shell out at least $5K for an attorney.  You will have to go to court and be subject to the humiliation and embarrassment of being a defendant in a criminal case.  And the kicker is even if your DUI were to get dismissed, you still go through all this.  

Anyway.  Here is a link to the article if you're interested.

http://mynorthwest.com/?nid=11&sid=1146480

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Matthew A. Leyba is a DUI Attorney in Seattle, WA.  He is the owner of Leyba Defense PLLC, a boutique Criminal DUI Defense Firm in downtown Seattle.  If you have been arrested for a DUI in Washington State contact our office for a free consultation.   

New DOL administrative hearing fee increase for Washington State DUI Arrest

If you have been arrested for a DUI in Washington State then you face two separate legal actions.  One obviously is with the Court system.  The other legal action is with the Washington State Department of licensing.  As of 10/1/12 the fee to deal with this second legal action increased from $200 to a whopping $375.

As a Seattle DUI Attorney it is my opinion to always send in the hearing request fee and challenge the DOL administrative license revocation.  Not only is it a great source of investigation for the criminal case.  You can question the arresting officer, and try out legal arguments with DOL that may be used in the criminal case.  But with the new increased fee many people may not be willing to shell out almost $400 to challenge this license suspension.  Especially when statewide there is around a 20% dismissal rate on these DOL administrative hearings (although Leyba Defense is much much higher).

My opinion is this increase is due solely to budget issues, and DOL trying to get an increase in operating revenue, as opposed to trying to screw over those involved in a Seattle DUI arrest.  As far as whether or not to send in the DOL hearing request form, still do it.

As I stated before Im a Seattle DUI Attorney.  This is what I do for a living.  The DOL hearing is a great way to investigate the case.  You can subpoena the arresting officer.   Everything they say at the hearing is recorded.  Thus if they get caught in a lie or say something that is inconsistent with what they wrote in the police report then boom you have it later to impeach their credibility.  In addition its a great tool to use for negotiation.  If you can prevail at the DOL hearing on a legal issue.  Even though that outcome is unrelated to the criminal case.  You can still provide that written ruling to the Prosecutor in an effort to negotiate and point out an administrative hearing Judge who applies the same law and facts as the criminal Judge would dismissed the legal action.

Bottom line.  This new fee may discourage some people.  But in my opinion, still send it in.  Especially if you want to help yourself in your criminal DUI case.

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Matthew A. Leyba is a Seattle DUI Attorney 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 call our offices 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.