WA State legislator proposes bill that would make fourth offense DUI a felony

Now that the 2015 Washington State legislative session is under way.  The annual what can we do to make DUI laws tougher here in Washington State has begin.  The latest example is a proposed bill that would make a fourth offense DUI a felony.  Currently under Washington law a felony DUI law charge applies if a driver has been convicted of a DUI four times within the past decade, essentially making a fifth offense DUI a felony.  

This legislation was proposed last year, and the year before, and the year before it seems.  And it always comes back to the same thing.  Money.  Like all things it always comes back to money.  Regardless of how you feel about DUIs, and by now means do I condone drinking and driving.  But the cost of new legislation and implementing the laws means more in some cases than the idea.  

Would making a fourth offense DUI a felony be a good idea.  Of course it would.  Despite being a DUI Attorney in Seattle, if a driver doesn't learn their lesson by the third time then chances are nothing is going to help them.  At least that is my opinion.  Perhaps facing a lengthier jail sentence would cause a multiple repeat DUI offender to reconsider their choices.  

The problem with this legislation is how will the bill be implemented financially.  It is not as simple as saying okay your fourth DUI is now a felony.  There are costs that need to be factored.  Probation, jail, and monitoring fees are just a few off the top of my head.  

If you're interested in an article about this new legislation here you go.  I would be surprised if this bill passed.  Again not because it is not a good idea, but we still don't have any money here in Washington State.  

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About the author:  Matthew Leyba is a DUI Lawyer in Seattle.  He has been repeatedly recognized as one of the best Seattle DUI Attorneys by the Seattle Met Magazine, and is currently the highest rated Seattle DUI Lawyer by Avvo.com 

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.   

Interesting article from American Bar Assoc Journal on DUI cases and McNeely

The American Bar Association recently posted an article in the April edition discussing the future of DUI laws in light of the McNeely ruling.  It's not too often that the ABA journal takes up issues in DUI defense and/or prosecution, so as a Seattle DUI Lawyer I had to check it out.  Additionally it has been making its way around the Prosecutors office as well, so that was another reason I wanted to read it.  

In case you're not familiar with the McNeely ruling by the US Supreme Court.  The Court held police officers may not take blood samples from drivers who refuse to provide them voluntarily, unless they have a warrant or some kind of "exigent circumstance" exists.  The Court also went on to state that the dissipation of alcohol from the drivers blood is not an exigent circumstance, although it is a factor to consider.  

The ABA journal discussing some interesting insight into the future of DUI cases and how the McNeely ruling may affect DUI laws going forward.  The article started off discussing a DUI case in King County, WA (where I happen to practice).  Basically the Prosecutors in that case decided not to offer the defendants blood test in their case and chief due to the McNeely ruling and reached a plea deal to a misdemeanor down from a felony. 

The article then went on to discuss possible ramifications with States that have implied consent laws and whether or not they would be valid still.  Since some DUI Attorneys believe States won't be able to make waiving that right a condition of driving privileges.  And if that is the case then Prosecutors won't be able to use a drivers refusal as a consciousness of guilty and argue to a jury the reason they refused the test was because they knew they were over the legal limit.  

The article then went on to discuss issues like the time it takes to get a warrant.  Whether some jurisdictions have the resources to actually get the warrants, what happens if they do and done.  Some of the hurdles these jurisdictions will have to overcome, etc.  

Overall I thought it was an interesting article.  Another interesting topic it raised was Marijuana DUI cases and how the warrant requirement would affect those cases.  The Prosecutors interviewed from the article discussed how Marijuana exists an individuals blood stream relatively quickly assuming they are not a regular user.  Additionally the Prosecutors said most people don't immediately use marijuana and then get into their car, but wait several hours.  

I think the Marijuana portion of the article was kind of BS.  But you can read it yourself.  Here is a link to the article and if you get the ABA journal it will be in their April edition.

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About the author:  Matthew Leyba is a DUI lawyer in Seattle.  Rated as one of the best Seattle DUI Lawyers by Avvo.com and repeatedly recognized as a Rising Star in DUI Defense by the Seattle Met Magazine, an honor only 2.5% of all Lawyers in Washington State receive.  You can check out his 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.   

Should Washington state lawyers be allowed to smoke pot

We all know that marijuana is legal in Washington State.  You can smoke marijuana, you can grow it, heck you will soon be able to by it at local stores.  However one issue that was never fully determined when the passage of I502 and subsequent legalization of marijuana happened was whether Washington State lawyers can use it.

You see State rules disallow local Washington State attorneys from committing a "criminal act," and despite the passage of I502, marijuana is still illegal federally.  Last week however, the King County Bar Association asked the Washington State Supreme Court to let Washington State attorneys use marijuana without punishment.  The KCBA proposal would add language clarifying that attorneys do not violate state ethics rules if their federal transgressions are specifically permitted under state law.

So what does this mean?  If you're a practicing Seattle Attorney for example technically you can't smoke Marijuana like the rest of Washington state residents.  If you do then you would be committing a "criminal act" and you risk losing your license to practice law.  As a practicing DUI lawyer in Seattle it should be interesting to see how the WSBA goes and whether they change this ethical provision.

Now on a related but unrelated note, I have been seeing more and more marijuana or green DUI's come through my office.  Just because marijuana is legal does not mean you can go out and drive if you're still under the influence of it.  Unlike alcohol, marijuana stays in your system longer.  And even though you may not feel the effects of it, if you're a regular user than you might constantly be at the legal limit of 5 nanograms (which is not very much).  

If you're a regular follower of this blog then you know I was not in favor of the passage of this bill.  Not because I have any problem with the actual legalization, but what we were giving up in exchange for that.  In my opinion as a DUI lawyer in Seattle this legal limit is probably equivalent to a very small amount of alcohol.  But those that were hell bent on this passage never considered this, and now people that need this drug for medicinal purposes are constantly driving "over the legal limit."  

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About the author: Matthew Leyba is one of Seattle's best DUI trial attorneys in Western, WA.  His practice focuses on representing those charged with DUI and other related offenses.   

Another DUI Prosecutor arrested on a DUI case

Another DUI Prosecutor has been arrested for a DUI in Washington State.  Last week I blogged about a Prosecutor who pleaded guilty in their own DUI case.  Not to embarrass that particular Prosecutor due to the arrest, but to show what someone experienced and knowledgeable in DUI law would do when it comes to the field sobriety tests and the breath test.  Decline them.  

The purpose of this post regarding this recent DUI Prosecutor facing a DUI charge is not to embarrass, or even show what they did regarding the tests, but to show you a DUI arrest can happen to anyone.

I'm a DUI Attorney in Seattle for a couple of reasons.  First DUI Defense is an area of the law I thoroughly enjoy.  It has the criminal aspect which usually invokes constitutional issues that I dig, but it also has a scientific component that I find challenging.  Secondly I enjoy trial work.  You don't litigage over 100 jury trials unless you love going to trial, and DUI defense affords me that opportunity.  Lastly a DUI arrest can happen to anyone.  Unlike other criminal cases, most people charged with a first DUI are generally very good people who happen to make a mistake, not a hardened criminal.   

Which brings me to my point.  This DUI Prosecutor made a mistake.  Obviously they are more familiar with the DUI laws than the general public.  So maybe they should have known better and known there is no such thing as a legal limit when it comes to drinking and driving.  But nevertheless they made a mistake and now they are facing a DUI charge.  They are now in the position of the very people they Prosecute that has to be tough situation to be in.  Again my point is if a DUI Prosecutor can get arrested for a DUI, than anyone can.  It doesn't mean they are a bad person, they just simply made a mistake.

And by mistake I don't mean anything egregious by that.  Sometimes people just have a glass or two of wine at dinner, a beer watching a football game and they don't realize they are at the legal limit or even below it and they get arrested for a DUI.  Heck sometimes people are seated inside their vehicle waiting for a cab and they don't realize this is potentially illegal and they get arrested for a Physical Control.  People make mistakes sometimes not even realizing what they are doing is illegal.     

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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 has been rated as a Top DUI Attorney in Seattle by Avvo, and is named a Rising Star in DUI Defense by Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive. 

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. 

DUI laws about to get a whole lot tougher in Washington State

Some new legislation is being pushed through the State Capital this before the legislative session ends.  Proponents of these bills are hoping to capitalize on some horrific incidents involving drunk driving recently here in the Seattle area.  The chief proponent behind this legislation is Governor Inslee who calls these proposed bills "the most aggressive, the most ambitious change to State laws ever."  Keep in mind this is also the same guy who compared a first time DUI offender as a terrorist with a ticking time bomb in their trunk.

Here are some of the highlights of this bill

• Automatic booking into custody after DUI arrest
• Requirement of ignition interlock device to get vehicle out of impound after DUI arrest
• Second offense DUI penalty is 6 months in jail
• Third offense DUI penalty is 1 year in jail.
• Individual accused of third DUI would be required to have special license that would not allow any alcohol to be purchased or served for 10 years
• DUI charges to be filed within 48 hours

In case you don't know I'm a DUI lawyer in Seattle, WA.  My practice focuses on representing those accused of DUI and other driving related offenses.  But at the same time I am not deaf to the horrific accidents that recently took place, and I in no way condone killing or injuring another person by drinking and driving.  

But some of these charges are over the top excessive.  As it stands right now if you have never been in trouble before and for the most part cooperate with the arresting officer you will not get booked into custody.  Generally you will be released at the station or I have ever had some Seattle DUI arrest cases where my client was taken back home.  Under this legislation regardless if you have never been in trouble before you will have to spend the night in jail.  

The other proposal that I think is excessive is requiring somebody to get an ignition interlock device installed in their vehicle to get it out of impound.  First of all in King County it takes 3-6 months and in some cases up to 2 years to get a DUI charge filed.  So the person is supposed to have the ignition interlock on their vehicle the entire time.  If it is not important to the Prosecutors office to file the charge, and they don't deem the individual a community safety risk then why the ignition interlock.  There area already measures in place to prevent a person from getting behind their wheel of their vehicle after a DUI arrest, and that is Hailey's law which mandates a 12 hour hold after a DUI arrest.

The real scary thing to come from these tragedies is not the toughening up in DUI laws (although that is scary) but the public backlash that has arisen.  Just take a look some of the comments in the Seattle Times.  Some of these remarks are completely nuts.  1 year in jail for a first DUI.  $30,000 fine for a first DUI.  No alcohol for life are just a few.  And that is not the scary thing, the scary thing is these are the people that compromise jury pools.  Imagine getting wrongly arrested for DUI.  Fighting your case all the way until a jury trial.  Then getting a bunch of these crazies judging your fate.  Unfortunately nowadays there is no way anyone can get a fair trial in King County on a DUI case.  Now that is scary!

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About the author: Matthew Leyba is a Seattle DUI lawyer in Washington State.  He is currently rated as a Top Seattle DUI lawyer by Avvo, and was recently named a 2013 Rising Star in the area of DUI defense by Super Lawyers Magazine.  This is an honor less than 2.5% of all Attorneys in Washington State receive.

Prepaid "liquor stickers" hope to decrease Seattle DUI arrests

Wow what a brilliant idea by the Seattle Nightlife Initiative and the Road Safety Action plan.  Why am I just hearing about this now?  Liquor stickers have been placed on every meter in Seattle, essentially allowing an individual to prepay for 2 hours of parking the next morning.  Why what you want to do that you ask?  Well what is the most common reason people have when they decide to drive home after a night of drinking and risk a Seattle DUI arrest.  I don't want to leave my car downtown and have it get towed in the morning because Im not going to wake up at 7 am to go get it.  

This idea essentially eliminates that reasoning, and under the initiative will hopefully decrease the number of Seattle DUI arrests, because people will decide to take a cab home, and come back in the morning to retrieve their vehicle

Now I'm a Seattle DUI lawyer, and I have never heard of this program before.  And it has been put in place for the past 2 years, and only used 45,000 times.  What does that tell you?  There is not a lot of talk about it, I'm even willing to bet a good majority of people think it is some kind of a scam.

I recently found this article on Kiro 7 discussing one of the major problems with this initiative.  And that is nobody knows what it is.  The gist of the article is nobody knows what these stickers are, and they are hard to find if you do.  The news reports makes an excellent point.  Anybody who has ever lived in Seattle, or used a parking meter knows there is a bunch of crap all of these meters.  From graffiti, to other stickers, to posters, etc.  The reporter points out that nearly at the bottom of the meter is the liquor sticker idea saying what to do.  Problem is it just looks like any of the other garbage on the meter, and not necessarily official.  

So what does the City plan to do about it?  According to the article, absolutely nothing.  Because 45,000 people have decided to use it, that is somehow indicative this initiative is working.  Call me a pessimist but I don't think 45,000 over the course of 2 years is that great.  Plus how do we know these 45,000 people are in fact using the liquor sticker for what it is intended.  I bet a good majority of these people park their car regularly on City of Seattle streets, and are just using it so they don't have to wake up first thing in the morning to move their car on the weekend.

But kudos for the City of Seattle thinking of this idea.  I honestly can't say I have ever seen or noticed one of these stickers.  And I park regularly downtown and use meters when I go to Court, or picking something up at the downtown mall area.  But I will definitely check it out next time I'm at a meter, and I suggest you do as well.     put in place by the Seattle Nightlife Initiative and the Road Safety Action plan.  Why am I just hearing about this now?  

So what is it?  Liquor stickers have been placed on every meter in Seattle, essentially allowing them to prepay for 2 hours of parking the next morning.  Why?  Well what is the most common reason people have when they decide to drive home after a night of drinking.  I don't want to leave my car downtown and have it get towed in the morning because Im not going to wake up a 7 am to go get it.  

This is idea essentially eliminates that reasoning, and under the initiative will hopefully decrease the number of Seattle DUI arrests, because people will decide to take a cab home, and come back in the morning to retrieve their vehicle

As you know I'm a Seattle DUI lawyer, and I have never heard of this program before.  And it has been put in place for the past 2 years, and only used 45,000 times.  What does that tell you?  There is not a lot of talk about it, I'm even willing to bet a good majority of people think it is some kind of a scam.

I recently found this article on Kiro 7 discussing one of the major problems with this initiative.  And that is nobody knows what it is.  The gist of the article is nobody knows what these stickers are, and they are hard to find if you do.  The news reports makes an excellent point.  Anybody who has ever lived in Seattle, or used a parking meter knows there is a bunch of crap all of these meters.  From graffiti, to other stickers, to posters, etc.  The reporter points out that nearly at the bottom of the meter is the liquor sticker idea saying what to do.  Problem is it just looks like any of the other garbage on the meter, and not necessarily official.  

So what does the City plan to do about it?  According to the article, absolutely nothing.  Because 45,000 people have decided to use it, that is somehow indicative this initiative is working.  Call me a pessimist but I don't think 45,000 over the course of 2 years is that great.  Plus how do we know these 45,000 people are in fact using the liquor sticker for what it is intended.  I bet a good majority of these people park their car regularly on City of Seattle streets, and are just using it so they don't have to wake up first thing in the morning to move their car on the weekend.

But kudos for the City of Seattle thinking of this idea.  I honestly can't say I have ever seen or noticed one of these stickers.  And I park regularly downtown and use meters when I go to Court, or picking something up at the downtown mall area.  But I will definitely check it out next time I'm at a meter, and I suggest you do as well.    

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

Extra DUI patrols to hit the Seattle streets for St. Patty's Day weekend

Added DUI patrols will hit the streets of King, Snohomish, & Pierce counties this weekend for St. Patrick's Day celebrations.  If you go out and drink, don't drive under any circumstances.  Even if all you have a single pint of Guinness or a single Irish car bomb (yum).  There is no such thing as the legal limit here in Washington state.  You will get arrested regardless of how you do on the field sobriety tests, regardless of what you breath test, or regardless of how much you drink.  

If you are investigated for DUI.  Remember these 3 simple rules

• Ask to speak with an attorney before answering any questions
• Don't agree to perform any field sobriety tests
• Don't take a breath or blood test without speaking with an attorney

If you follow those rules then you will ensure that you have protected yourself as much as possible, and limited any incriminating evidence the police may gather.  Below are the cities involved in the extra DUI patrols.  This list was taken from the Seattle Times this morning.

"Law enforcement agencies participating in the added DUI patrols include police from Arlington, Auburn, Bellevue, Black Diamond, Bonney Lake, Bothell, Burien, Clyde Hill, Covington, Des Moines, Duvall, Edmonds, Enumclaw, Everett, Federal Way, Fife, Fircrest, Gig Harbor, Granite Falls, Issaquah, Kent, Kirkland, Lake Stevens, Lakewood, Lynnwood, Maple Valley, Marysville, Mercer Island, Mill Creek, Milton, Monroe, Mountlake Terrace, Mukilteo, Newcastle, North Bend, the Port of Seattle, Puyallup, Redmond, Renton, Sammamish, SeaTac, Seattle, Snoqualmie, Steilacoom, Sumner, Tacoma, Tukwila, Tulalip Tribal, University Place, and Woodinville."

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

  

IID required for ORL in Washington State? DOL says yes

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

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

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

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

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

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

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

RCW 46.20.391 (emphasis added)

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

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

In fact I pulled this off the WA DOL website

You’re not eligible if:

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

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

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

RCW 46.20.385

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

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

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

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

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

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

Bureaucracy at its best I guess!

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

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

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

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

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

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

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

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

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

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

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.