Tuesday, March 18, 2014

Somedays you are the windshield and sometimes (a lot of times) you are the bug in DUI Defense, but today it went our way!!!

A cliché but some days you are the windshield and sometimes you are the bug.  Today my client was the windshield as her DUI charge was dismissed with prejudice after an evidentiary hearing. 

Last Monday I argued to a judge in King County District Court that my client's right to have a private conversation was denied and that, additionally, due to the police department's policy of "purging" (i.e., destroying) video after 60 days it was impossible for her to have a fair trial because it would be her word about that denial of a private conversation with her attorney prior to submitting to a breath test against that of a Washington State Patrol trooper of 24 years.  After hearing testimony from my client after the Trooper, the judge took the argument under advisement, then issued a written ruling declaring, among other things, that my client's testimony lent credence to her account the trooper could overhear her conversation and that she was unable to ask the attorney the questions she needed to in order to make an informed decision.

I will tell you from experience, dismissals of DUIs don't often occur but this was the correct call by the judge.  Regardless of how someone might feel about the result, justice was served because the court essentially put the onus on the State to show the defendant wasn't prejudiced after she testified.  This is precisely why I fight the fight folks!  I have a very satisfied client today.   

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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

Advertising for DUI attorneys.

With the increased use of social media, it is imperative attorneys utilize those services to ensure a web presence.  Facebook and Twitter are of course, integral to a firm's web presence but more importantly a web presence on search engines is a necessity.  There are several well-known search engines but lesser services where the client is able to further evaluate potential attorneys more closely are popping up.  Thumbtack is just one that comes to mind.  It is a service wherein a potential client can search a specific location, specific area of law and search through numerous profiles of potential attorneys for their review. 

I have utilized many avenues to display my services, but potential clients must be mindful of the skill of the attorney in the courtroom NOT their advertising prowess.  It is irrelevant to an attorney's skill level if they have the number one position on a search engine all that says is that (a) they are either great at marketing and Search Engine Optimization (SEO) or (b) they have hired someone who is.  It says nothing about their abilities as an attorney.  Yes placement helps with potential client's abilities to research, but the better mode is to compare and then ask around for personal references.  You can check out my thoughts on "Who To Hire" on my website.  That article will give you many decision making ideas when you begin your research for your next DUI attorney.  If you ever have questions about a DUI arrest, call Nate Webb at (425) 398-4323 for your always free consultation. 

Tuesday, March 11, 2014

Do I have to install an Ignition Interlock Device on my car if I enter into a Mental Health Deferred Prosecution?

Now many of the attorneys practicing law in Washington state may shout out, NO! Absolutely not!  However, the short answer is yes, according to DOL.

Now all Seattle DUI attorneys know that in any alcohol dependency case the petitioner is required under the applicable statute (RCW 10.05.140) to drive only a motor vehicle with a functioning ignition interlock device (IID) for a minimum period of a year.  Many of my colleagues and I believe the imposition of a IID is not required on a Mental Health or Drug problem petition for a Deferred Prosecution.
The applicable statute is as follows:
RCW 10.05.140
As a condition of granting a deferred prosecution petition, the court shall order that the petitioner shall not operate a motor vehicle upon the public highways without a valid operator's license and proof of liability insurance. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490. As a condition of granting a deferred prosecution petitionon any alcohol-dependency based case, the court shall also order the installation of an ignition interlock under RCW 46.20.720. The required periods of use of the interlock shall be not less than the periods provided for in RCW 46.20.720(3). As a condition of granting a deferred prosecution petition, the court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160. To help ensure continued sobriety and reduce the likelihood of reoffense, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for alcoholism or drugs, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution program upon violation of the deferred prosecution order.
Recently, the Department of Licensing has implemented its' own "policy" to require the imposition of an IID on ANY deferred prosecution case, even if it is solely based upon Mental Health issues or Drug problems if it was originally charged as a DUI (RCW 46.61.502) or Physical Control (RCW 46.61.504).

Here is the policy:


Policy


 


Effective immediately ( January 29, 2013) all Deferred Prosecutions: Alcohol, Drug and Mental Health will require the appropriate 1, 5, or 10 year IID requirement as established under RCW 46.20.720.



RCW 46.20.720 holds:


(1)  The court may order that after a period of suspension, revocation, or denial of driving privileges, and for up to as long as the court has jurisdiction, any person convicted of any offense involving the use, consumption, or possession of alcohol while operating a motor vehicle may drive only a motor vehicle equipped with a functioning ignition interlock. The court shall establish a specific calibration setting at which the interlock will prevent the vehicle from being started. The court shall also establish the period of time for which interlock use will be required.  (2) Under RCW 46.61.5055 and subject to the exceptions listed in that statute, the court shall order any person convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to comply with the rules and requirements of the department regarding the installation and use of a functioning ignition interlock device installed on all motor vehicles operated by the person. The court shall order any person participating in a deferred prosecution program under RCW 10.05.020 for a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to have a functioning ignition interlock device installed on all motor vehicles operated by the person.


Now the statement that the court "shall order" an ignition interlock infers the court must impose the ignition interlock for any person participating in a deferred prosecution.

Now here is where it gets tricky, RCW 46.61.5055 5(a) holds:

The court shall require any person convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to comply with the rules and requirements of the department regarding the installation and use of a functioning ignition interlock device installed on all motor vehicles operated by the person.
In the particular case I was referencing with the DOL, the court actually did order the imposition for a IID but only for 3 months, not one year as is required for any alcohol dependency based DP under RCW 46.20.720 (3) and RCW 10.05.140.  However, the DOL's reliance upon RCW 46.20.720 I believe is misplaced RCW 10.05.060 indicates that when a person is granted a Deferred Prosecution, the entry is not a conviction under RCW 46.61.5055.



RCW 10.05.060
Procedure Upon Approval of Plan

If the report recommends treatment, the court shall examine the treatment plan. If it approves the plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, if able to do so, or arrange for the treatment, an entry shall be made upon the person's court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan shall be filed with the court. If the charge be one that an abstract of the docket showing the charge, the date of the violation for which the charge was made, and the date of petitioner's acceptance is required to be sent to the department of licensing, an abstract shall be sent, and the department of licensing shall make an entry of the charge and of the petitioner's acceptance for deferred prosecution on the department's driving record of the petitioner. The entry is not a conviction for purposes of Title 46 RCW. Upon receipt of the abstract of the docket, the department shall issue the petitioner a probationary license in accordance with RCW 46.20.355, and the petitioner's driver's license shall be on probationary status for five years from the date of the violation that gave rise to the charge. The department shall maintain the record for ten years from date of entry of the order granting deferred prosecution.

Well, where does this leave us?  The only way to address this issue is to take the Department of Licensing up on a Writ to Superior Court.  Be aware when considering a Mental Health or Drug Deferred Prosecution petition, because accordingly the DOL will require an IID for one year.
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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com
 

Friday, March 7, 2014

Denial of right to counsel - suppression, dismissal or neither?


Today I appeared in King County District Court to address an issue in a client's case wherein the client was denied the right to speak to an attorney.  The gist of the case involved a DUI wherein my client was arrested and after being read his constitutional rights and presented with a waiver of those rights he invoked his right to speak with an attorney.  The problem is, he was never afforded the right to speak to an attorney prior to the administration of the breath test.  In our case today the court held the proper remedy was suppression of the evidence, i.e., inadmissibility of the breath test results.

Each denial of counsel case can have different scenarios ranging from outright denial to counsel to a reasonable effort made by law enforcement to put someone in touch with counsel to a lack of reasonable effort to get in touch with counsel.  In our case, the trooper did make a reasonable effort to put my client into touch with counsel, but her efforts were in vain as both public defender agencies failed to respond to her inquiries.  These calls to the public defender’s office (attorney's on-call) went unanswered and put the trooper in a predicament not normally found.  That is, she then had to wait 45 minutes until making up her mind to present the client with the opportunity to blow or decline.  Ultimately the court held the court also had a responsibility to make counsel available as the public defender agencies were contracted through the court and had an obligation to respond.  Since no one did, the proper remedy, due to no fault of the trooper or my client was suppression of the "tainted" evidence, the breath test.  

In other scenarios, for example, when a trooper fails to provide the defendant with requested counsel the court's have discretion to dismiss a case.  See, State v. Myhre, State v. Pierce, City of Spokane v. Kruger and CrRLJ 3.1  All of these address the right to counsel.  Now, other times a defendant may be the cause of the "denial of right to counsel" by actions, such as being obstinate and not picking up the phone, fighting with officers, etc. and very likely those cases will have no action taken by the court (via dismissal or suppression).  

All that being said, it is always best to ask to speak to an attorney and not to waive your right to remain silent. On a side note, when presented with a document titled "constitutional rights" be aware the Washington State Patrol has authored this form and has purposefully made the "waiver" portion of the form ambiguous, so much that the word "waiver" is intentionally left out, even though officers testify all the time "when I presented him with waiver portion, he agreed" etc.  This is because they want you to inadvertently waive your right and the courts have held the language utilized in the form is sufficient for a proper waiver.  Here is the form's "waiver":

I understand my constitutional rights. I have decided not to exercise these rights at this time. Any statements made by me are made freely, voluntarily, and without threats or promises of any kind.

See how the word "waiver" is conspicuously absent, that is intentional!

The best advice is to just always say as soon as you are arrested, I would like to speak with my attorney!   
___________________________________________________________________
About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.