To subpoena or not to subpoena that is the question

A few weeks back I was retained on a driving while license suspended case.  The client was suspended administratively by the DOL for a Seattle DUI arrest which was handled by a different attorney.  When I sent a subpoena to DOL to request all the driving records, and all the other documents associated with the suspension I also received the ruling from the DOL administrative hearing.

If you follow this blog you know now that when a person is arrested for a DUI they are given the choice of either taking a breath test or not.  If they take the test then they face a minimum 90 day license suspension if its over the legal limit.  If they don't take the test then they face a minimum 1 year license suspension.  If they want to challenge that suspension then they request a DOL hearing which is done over the telephone.

State wide there is around a 25% dismissal rate at these hearings so they are always an uphill battle.  When challenging these administrative suspensions the accused has two options when it comes to the arresting officer.  They can either subpoena the officer or not.  This is up to the discretion of the Seattle DUI Lawyer.

In my clients case the other attorney who represented him chose not to subpoena the arresting officer and instead made a technical argument about the validity of the police report.  Subsequently they lost, and now my client is dealing with a 1 year license suspension.

But reading that ruling got my thinking when should an officer be served a subpoena to appear at the DOL telephone hearing, and when shouldn't they.  I would say in my practice I subpoena the arresting officer 95% percent of the time.  Maybe more.  Very rarely is there going to be some technicality in the police report that will result in the license suspension.

In addition to that even if there is some minor scribners error in the report, or some technicality you have to consider who the DOL hearing officer is.  Believe it or not there are some hearing officers who have lower dismissal rates than others.  In my clients particular case he had one of the toughest DOL officers, one who is known to have an extremely low dismissal rate.  I could have taken one look at who the DOL officer was, and what this technical argument was going to me and predicted it wouldn't be dismissed.

Now Im not one to really second guess what another attorney does.  But in my opinion you better have a clear cut, 100% you know its going to get dismissed winner to argue a DOL hearing without the officer being present.

If not then why not subpoena the arresting officer.  Remember if they don't appear than that also can get the DOL hearing dismissed, and I would say maybe 2 or 3 out of 10 times they don't appear.  But even if they do, you get a free deposition of the arresting officer without a prosecutor being present.  As a Seattle DUI Lawyer, this is a dream.  Think about it you can pretty much ask the arresting officer anything you want within reason, and they have to answer it.

But to each their own I guess.  This is just my opinion.  Remember if you have been arrested for a DUI, and you're looking for a DUI Attorney to represent you.  Give me a call anytime, and I'll gladly go over all your options including what may happen at your DOL hearing.    

New DUI laws in Washington State effective 8/1/12

Once again Washington State DUI laws will be changing.  Some good, some bad.  Below are a few of the highlights, or lowlights depending on how you view this.  On 3/29/12 Governor Gregoire signed the following into law under SHB 2443, and they will become effective 8/1/12.  So without further adieu here you go.

Increased penalties for DUI's where a child is in the vehicle: Under this new law if a child is in the vehicle during a DUI or Physical control then it must be documents by the arresting agency, and Child Protective Services must be notified.  Additionally the definition of a child increased to 16 years old.  Penalties also increased with more fines, and additional 6 months of an ignition interlock device.  So bottom line, if you have a few drinks on a Saturday night dinner with your family, and you get stopped for a Washington State DUI and you have kids in the car.  Be prepared for increased penalties, and a more zealous prosecution.

Eligibility to remove a DUI conviction from your record: If you're convicted of a felony DUI, or Physical Control conviction then you can never have that vacated off your record.  Also if you get a DUI reduced to a lesser offense (i.e., Reckless Endangerment, Reckless Driving, Negligent Driving 1) and it counts as a prior offense then it cannot be vacated if the person has a subsequent alcohol and/or drug violation within 10 years.  It used to be a long shot to get these vacated after 5 years, but now it appears people have to wait 10 years.

Increased cost of Ignition Interlock License: The cost to have this type of license will increase an extra $20 a month to help pay for indigent people

Reckless Driving suspension credit: It used to be that if your license was suspended administratively by the DOL, and then you got the criminal DUI case reduced to a reckless driving there would be an additional 30 day suspension on top of whatever the DOL administrative suspension was.  Now you can get a credit for the 30 days from the administrative suspension.  In this Seattle DUI Attorneys opinion this is a good change of the law.

Electronic home detention conversion: This area of the law used to always be kind of murky, and varied depending on the Judge.  Previously if a person was convicted of a DUI and they faced a mandatory home detention sentence, there was no explicit law that would convert that EHM time to jail, if the person wanted to just serve their sentence in custody.  Now there is.  So if you get a 60 day home detention, then this can be converted on a 15:1 ration.  You now would do an extra 4 days in jail.  This is a good change in the law.

Eligibility for out of state IIL license: It used to be that in order to be eligible for the ignition interlock license you needed a valid Washington State drivers license at the time of suspension.  Now a driver who is otherwise eligible for an ILL, but does not have a Washington state license can now be eligible for the IIL.

Remember if you have been arrested for a DUI, its important to contact a Seattle DUI lawyer immediately to ensure your constitutional rights are protected.  Visit our Seattle DUI Law Firm website to learn more.

Leyba Defense PLLC firm update

For those that follow the blog, I apologize for not making any posts the past couple of months.  Its been very busy, which is good for business, but the downside is I don't have much time for blogging.  It seems like every week, Ive been in court every day.  Or on days when I don't have court I've had jury trials scheduled that I need to prep, so I use that time for putting together my trial notebooks and things like that.

So here are some of the highlights of the past 2 months.  And again this is not meant to toot my own horn.  If you have read this blog before you know that I think Attorneys that have to write up their latest victories are just looking for some ego stroking, and thats not why my firm is about.  But I do think its important to note that every now and then the justice system works, and innocent people are not convicted.

DUI Dismissed: In May the firm litigated a motion in a local Municipal Court.  The issue was whether there was a sufficient basis to pull over the client.  In the end the Judge found the Officer did not observe a traffic infraction and therefore did not have a sufficient basis to pull the client over.  This effectively suppressed all the evidence after the stop including the field sobriety tests, the portable breath test, and the breath test at the station.  And in the end the case was dismissed.  Now regardless of how you feel about DUIs, everybody in this country is protected the Constitution.  And if law enforcement does not follow those protections they need to be called out on it.  

DUI Dismissed: In June I had an interesting case.  It was a relatively low breath test in one of the local District Courts.  The client came to me not wanting anything on her record.  Which is difficult to obtain on any type of case.  Let alone a DUI charge.  But the one thing the client had going for her was my familiarity with the particular Judge and Court her case was in.  A few months prior I had a similar case.  A low breath test in front of a particular Judge. In that case the Judge agreed to a deferred sentence and then dismissed the case right on the spot at the time of sentencing.  So I knew if we could get in front of the same Judge and make the same arguments we had a good chance of him dismissing the case.  Well low and behold after a few court dates we got in front of this Judge.  I made the same arguments as before, and the Judge did the same thing and dismissed the charge.  The client was happy with the outcome, and now she can lawfully say she has never been convicted of a crime.

DOL hearings dismissed: Also in May and June I had a couple DOL hearings get dismissed.  Which is always great news to the client because their license will not get suspended.  But its also great satisfaction personally because the success rate at these DOL hearings is so law due to the nature of them and the legal standard that needs to be met.  In one case the Officer forgot to check a box, which resulted in the suspension being dismissed on a technicality.  In the other case the Officer didn't properly observe the client for 15 minutes prior to taking the breath test, which resulted in the license suspension being dismissed due to an inadmissible breath test (thank goodness for the video in the BAC room, because the Officer denied doing that during testimony).  And we also won a license suspension hearing when the Officer failed to appear.  Now I didn't really do anything in that case, but when the Officers are properly sent a subpoena, they need to appear like everyone else.

And lastly I had a tough verdict in June on a DUI jury trial.  As a Seattle DUI Attorney theses types of cases are always tough when the Prosecution was not offering any kind of plea deal, and my policy in those types of cases is to hold the Prosecution to their burden of proof and make them do their job.  In the end my client received the exact same sentence from the Judge he would have received if he just plead guilty.  But he also has an interesting appeal issue should he choose to move forward with it.

Upcoming I have some interesting cases set for jury trial.  I think they are good cases, and a verdict can go either way.  Which is all you can ask for in a criminal case.  Especially a DUI charge where usually the evidence is stacked in favor of the Prosecution.  So I will keep you posted on how those turn out.  

Remember with the summer in Seattle finally arriving, its important to not drink and drive.  But if you find yourself in the position of being investigated for a Seattle DUI.  Follow these simples rules and you will ensure your constitutional rights are protected.

1. Decline to answer any questions
2. Decline to do any field sobriety tests
3. Decline to do the portable breath test at the scene
4. Ask to speak with a Seattle DUI Attorney prior to submitting to the breath test at the station.