Tuesday, September 30, 2014

Seattle DUI attorney, Nate Webb, discusses the question "If I was arrested aren't I guilty?"

Just reading and watching the news today about Michael Phelps DUI arrest (click here to read about it) I was wondering how many people out there who could be potential jurors might conclude that just because he was arrested he might also be guilty before having his day in court.

I hear it all the time from prospective jurors when they are asked by a prosecutor during voir dire, does anyone think Mr. or Mrs. so and so is automatically guilty and they all say, "oh no of course not" then I follow up with a question like, "let's pretend we just walked in here off the street and sit in the back and see the accused sitting in his chair here, don't you think we might nudge each other and say to ourselves 'I wonder what he did'".  Someone in the jury pool always says "well of course because he is here" and I say "well would you want someone to say that about you if you had entered a plea of not guilty?"  Usually the response is "oh I see what you are saying."

In closing argument (summation) it is essential that your Seattle DUI attorney points out the defendant simply being charged is evidence of nothing, him being arrested is not evidence of guilt and that he doesn't have to show you anything to disprove the government's allegations.
I always remind jurors that beyond a reasonable doubt is the highest burden that exists in our judicial system and thate it is the same for all defendants, whether they are charged with rape, murder, or driving without a licnese or DUI.

So, in a nutshell, an arrest is certainly not evidence of guilt and in fact, many judges will dismiss a case if the arresting office failed to have probable cause in the first place.  So it is absolutely necessary your Seattle DUI Lawyer points this out to jurors!

Tuesday, September 16, 2014

Seattle DUI Attorney addresses those defendants who say, "I have a public pretender...I want a real attorney!"

I want a real attorney, not a public pretender!

On too many occasions to note I have heard the expression, "I have a public pretender..." along with some sort of complaint about how they aren't doing anything and that the defendant wants a "real attorney."  I will preface this blog with this note, I was never a public defender nor a prosecutor but I can tell you public defenders work extremely hard for some extremely difficult clients, many of whom believe they are entitled to one attorney working solely on their case even though they aren't paying anything for that representation. 

To answer the reference of wanting a "real attorney," I've got news for those defendants, your public defender is very much a real attorney, they are extremely experienced in all facets of criminal law and have very likely done more jury trials than most private attorneys.  I have too often seen brand new attorneys with no experience (especially those with no trial experience) attempt to represent their clients in very complex DUI cases and who are clearly inept get treated with more respect than seasoned public defenders and that is simply a shame.

Public defenders work tirelessly for their clients with little or no gratitude in return.  I stand up for their work because every time I'm in court I see how difficult their jobs are and the scenarios they have to endure. 

Many private attorneys don't have near the experience in DUIs as the so called "public pretenders" because many private attorneys don't go to jury trial.  If your private attorney has not done at least 20  jury trials, they simply can't compete with a public defender. Many public defenders do dozens upon dozens of trials each year, some more than that!

The main difference between a private attorney and a public defender, at least in the DUI context, is that a private attorney gets to choose his or her case and also maintain a manageable caseload.  A public defender is given anything that is thrown their way and must handle hundreds of cases at once. 

The next time a defendant is overheard saying "I want a real attorney" when referencing a public defender, keep in mind the person spouting off is probably a repeat offender who has no regard for anyone but themselves.  Keep it up public defenders, you are doing great work!

Wednesday, September 10, 2014

Seattle DUI Attorney, Nate Webb, addresses the DUI client who says, "I saw on the internet...."

I’ve done my research, so I just want to hire you to get my case dismissed, it will be easy because the cop lied and it should be dismissed!

Okay, now I’m not doubting that you may have some issues in your case.  Sometimes there are issues which may possibly result in a dismissal of your DUI or at the very minimum suppression of evidence.  That being said, the vast majority of DUI cases are not dismissed, it is probably less than 5% that are dismissed (and I don’t mean by way of a Deferred Prosecution).  What I mean is a dismissal due to some evidentiary issue (very likely the stop was invalid or there was no probable cause for arrest).  The great majority of DUIs are reduced to lesser offenses than what was originally charged. 

When you talk about the research you have done, be very leery about websites spewing stories about a person’s friend’s uncle’s cousin’s case where the judge threw out the case.  Many times those sites and stories are simply hyperbole and, sadly, many times they are just complete fabrications. I’ve had numerous people come in to meet me at a consultation and will say things such as, “I looked it up and if the cop didn’t have a reason to stop me, the case has to be dismissed.”  I typically say, yes that is true, but I would highly doubt the cop will admit he just pulled you over because he saw you leave a bar, there will be more to his story. 

(I did not produce the video below and don't conduct myself like this with clients but just put it on here as an example of the reality of DUI defense - sometimes we don't always remember the facts correctly) 

People wisely are utilizing the internet to research defenses to their DUI charge, but nothing, I repeat, nothing will take the place of an experienced DUI attorney.  The truly skilled DUI lawyer will prepare your case, find out what applicable strategies and defenses there are and be able to effectively utilize those either in negotiations or in court. 

My point is that no amount of research is going to take the place of a seasoned DUI attorney analyzing and applying argument in front of a court regarding your issues.  Sometimes the court will agree and sometimes (most of the time) the court will not.  The reality is, a lot of judges are hesitant to dump a DUI even if, legally, it is the right thing to do.  I personally believe in those situations some judges want to make the defendant have to appeal the case and spend the time, money and effort to get what is rightful.  That is an awful thing to conclude, but alas it is a reality.  Of course, contrarily there are many respectful judges who have the integrity to do what is right.  This is also a reason why you need a DUI attorney familiar with the judges in each court, no amount of research will help you there.  Without that knowledge you may be speaking to a brick wall. 

So, in summary, even though you may have done your research, effectively applying your theory of the case and defense to your issue(s) requires skilled DUI representation. 
If you need truly trial experienced call us today!  We have the results to back up what we say, period! (425) 398-4323 or (844) DUI-GONE



Tuesday, September 9, 2014

Seattle DUI Attorney, Nate Webb, discusses - What are motions in limine?

What are Motions in Limine?
Motions in limine are motions presented to the court prior to the beginning of a jury trial.  The presented motions are presented to the court in an effort to have the court limit or restrict the evidence to be presented by the other party.  Each party may present their proposed motions in limine to the court for review and approval.  The judge determines whether these motions are adequate and should be implemented. The motions can range from excluding witnesses from the courtroom to suppression of particular comments directed to the jury from witnesses.

Why are they important?

Motions in limine are invaluable for both sides.  In the criminal context they assist the court with the natural flow of the case and preclude unwarranted or impermissible comments from either party or the party's witnesses.  It is essential your attorney present applicable and succinct motions to the court to restrict impermissible testimony.

What happens if a party violates a motion in limine during trial?

If a party or a party's witness violates a motion in limine during trial the court may either simply move to strike the impermissible testimony, instruct the jury via a limiting instruction, or may grant a motion for a mistrial brought by the aggrieved party.  Some examples of why a mistrial might be granted would include a witness presenting testimony that was suppressed (for example if a witness mentioned the results of a blood test that had been suppressed due to a protocols violation, etc.).
Having conducted numerous jury trials I am extremely familiar with motions in limine.  It is essential in the DUI context your DUI attorney knows how to both present these and argue them effectively and the tendency of certain judges to exclude particular evidence or restrict how witnesses may testify.

As a Seattle DUI Lawyer I am very familiar with how courts and judges apply these motions.

If you need a DUI Attorney, give us a call today to discuss your case (425) 398-4323 or (844) DUI-GONE.

Friday, September 5, 2014

Seattle DUI Lawyer Nate Webb answers: "Can I get a Judge off my case!"

Can I remove a judge from my case?  The answer is yes, subject to a few conditions. 

Pursuant to CrRLJ 8.9 and RCW 3.34.110 a judge may disqualified for any reason as long as they have not made any discretionary ruling and as long as you have filed the Motion for Change of Judge within the 10 day time period explained below.  

Even if a judge has set conditions at your arraignment (bail and setting of conditions of release), as long as your motion is timely the judge can be removed from your case and would be precluded from making any further decisions with respect to your case.

When charged with a Washington State DUI, it is essential your DUI attorney knows which judges have which particular tendencies and which pro-tem judges to accept or avoid.  This is crucial to your defense and only a seasoned Seattle DUI Lawyer will have this knowledge.

The applicable Court Rule and Statute are outlined below:

(a) Disqualification. In any case pending in any court of limited jurisdiction, unless otherwise provided by law, the judge thereof shall be deemed disqualified to hear and try the case when the judge is in any way interested or prejudiced. The judge may enter an order of disqualification.
(b) Affidavit of Prejudice. The judge shall also enter an order of disqualification under the provisions of this rule if, before the judge makes a discretionary ruling and before the trial is commenced, a party files an affidavit alleging that the party cannot have a fair and impartial trial by reason of the interest or prejudice of the judge or for other ground provided by law. Only one such affidavit shall be filed on behalf of the same party in the case and the affidavit shall be made as to only one of the judges of the court. All rights to an affidavit of prejudice will be considered waived when filed more than 10 days after the defendant's plea is entered or arraignment is waived, unless the affidavit alleges a particular incident, conversation or utterance by the judge, which was not known to the party within the 10-day period. In multiple judge courts, or when a pro tempore or visiting judge is designated as the judge, the 10-day period shall commence on the date that the party has actual notice of assignment or reassignment to a designated judge.
(c) Transfer. Whenever a judge is disqualified, the judge shall immediately make an order transferring and removing the case to another judge authorized by law to hear the case.
CrRLJ 8.9.
District judicial officers — Disqualification.
(1) A district court judicial officer shall not preside in any of the following cases:
(a) In an action to which the judicial officer is a party, or in which the judicial officer is directly interested, or in which the judicial officer has been an attorney for a party.
(b) When the judicial officer or one of the parties believes that the parties cannot have an impartial trial or hearing before the judicial officer. The judicial officer shall disqualify himself or herself under the provisions of this section if, before any discretionary ruling has been made, a party files an affidavit that the party cannot have a fair and impartial trial or hearing by reason of the interest or prejudice of the judicial officer. The following are not considered discretionary rulings: (i) The arrangement of the calendar; (ii) the setting of an action, motion, or proceeding for hearing or trial; (iii) the arraignment of the accused; or (iv) the fixing of bail and initially setting conditions of release. Only one change of judicial officer is allowed each party in an action or proceeding.
(2) When a judicial officer is disqualified under this section, the case shall be heard before another judicial officer of the same county.
(3) For the purposes of this section, "judicial officer" means a judge, judge pro tempore, or court commissioner.
RCW 3.34.110.
If you are concerned about what you have heard about a particular judge and want to see if there is still time to have them removed from your case, give the Seattle DUI Pros a call to discuss your DUI arrest today (425) 398-4323 or (844) DUI-GONE.

Thursday, September 4, 2014

My friend said I could just get a Deferred Sentence on my DUI, so let's just go ahead and do that! Um, your friend is wrong.

Deferred Prosecution versus a Deferred Sentence

A Deferred Prosecution is a treatment option for individuals charged with a misdemeanor or gross misdemeanor offense in Washington State.  Click to view the applicable statute RCW 10.05.

This is different from a Deferred Sentence under RCW 3.66.067.  When a deferred sentence is imposed by the court, that is when an individual is either found guilty or enters a plea of guilty to a misdemeanor or gross misdemeanor (other than DUI or Physical Control) and the judge defers the sentence, meaning there is a conviction for a period of no more than 2 years then it will be dismissed after the period of probation has run; however, you are subject to the conditions of the guilty finding in the interim (i.e., jail, fines, fees, probation, alcohol classes, etc.).

What a Deferred Prosecution involves is that the individual petitions the court to attend and complete a prescribed treatment program (2 year program for a Washington State DUI involving alcohol dependency) in lieu of challenging the allegation in a trial.
The individual waives his or her right to challenge the evidence and instead opts to complete treatment for one of the following:
(1) alcoholism (2 year program),
(2) mental health (length of program depends upon treatment provider) or
(3) drug addiction (length of program depends upon treatment provider).
It is possible to combine treatment under two of the reasons above (i.e., the individual can elect to pursue a mental health deferred prosecution with some alcohol treatment if mental health is the underlying factor and reason for the offense).

If you were charged with an alcohol DUI you can utilize this treatment option in lieu of going to jail.  The same applies for other offenses as well.
In the case of an alcohol dependent deferred prosecution for a DUI charge, if the individual successfully completes the two year program, then after three additional years (a total of 5 years from the date of entry by the court) of continued law abiding behavior, the charge will be dismissed.

There are numerous requirements and conditions to follow for those who elect to enter into a deferred prosecution.  For example, if you were arrested for DUI, you will be required to install an ignition interlock on any vehicle you drive for a minimum period of one year.  This requirements applies to all Deferred Prosecutions wherein the individual was arrested for DUI or Physical Control, regardless of the presence of alcohol (this is imposed by the DOL).

Additionally, in alcohol dependent cases, you will be required to pay probation costs, abstain completely from alcohol for the 5 year probationary period, attend two self-help meetings for the first two years (at a minimum), strictly comply with the treatment providers program and maintain law abiding behavior.

Now on the surface it may seem like a great opportunity to avoid any DUI conviction; however, this option is not recommended for everyone.  First, you must admit you have a problem with alcohol, drugs or have a mental health issue (i.e., you are an alcoholic, drug addict or suffer from mental illness) and that without treatment you are likely to re-offend. Second, (at least in the case of an alcohol dependency program) the treatment program is an intensive outpatient program that lasts for two years.  Lastly, you will still have to be monitored by probation for 5 years and subject to random urinalysis tests. Additionally, you can only petition the court for a Deferred Prosecution once in your lifetime.

For drug cases and mental health cases, the treatment provider must outline a program and it must be accepted by the court.  Again, no matter which you choose, if you were arrested for a DUI or Physical Control charge you will be required to install an ignition interlock device on any vehicle you drive. See RCW 46.20.720.

Typically a Deferred Prosecution should only be considered when the subject truly has either an alcohol dependency problem, drug addiction problem or mental health issues which if not treated would lead to a likely re-offense AND the individual is facing significant jail time on this offense.  This means it is not normal to enter into a Deferred Prosecution on a first offense DUI charge.

Contact the Seattle DUI Pros today if you have been charged with a Washington State DUI and are considering a Deferred Prosecution. (425) 398-4323 or (844) DUI-GONE.

Wednesday, September 3, 2014

I had a Neg 1 a few years ago so this new DUI is my first offense...not so fast!

Many times I will be asked the question, "I had a DUI arrest a few years ago, but it was dropped to a Reckless Driving, so this new DUI is a first offense right?" Well, the answer may surprise many because it is no!  This new DUI is a second offense even though you were not convicted of the original DUI.

It is a second offense in this scenario because the person was previously charged with a DUI and it was amended to one of the crimes which are considered "prior offenses" under the statute (RCW 46.61.5055 (14)).

What that means is the old DUI reduced to Reckless Driving or Negligent Driving counts against them if they are convicted of this new DUI.  A new conviction will significantly increase the DUI penalties one may face (even if the original charge of DUI was amended to one of the prior offenses, if it was within 7 years from or after the date of the original arrest, it will count against them).

A prior offense means a conviction within seven years for one of the following crimes if the original charge was a DUI or Physical Control:
  • A previous conviction for a DUI
  • A previous conviction for Physical Control
  • A previous conviction for Reckless Driving (if amended down from DUI or Physical Control)
  • A previous conviction for Reckless Endangerment (if amended down from DUI or Physical Control)
  • A previous conviction for Negligent Driving in the First Degree (if amended down from DUI or Physical Control)
  • A completed Deferred Prosecution (even if it was dismissed after 5 years per statute)
  • A previous conviction for Vehicular Homicide
  • A previous conviction for Vehicular Assault
  • A previous conviction for Opertaing a Commercial Motor Vehicle with THC in System
  • A previous conviction for Operation of a vessel under the influence of intoxicating liquor, marijuana, or any drug (Boating Under the Influence - BUI)
  • A previous conviction for Operating an Aircraft Under the Influence
  • A previous conviction for Operating a Snowmobile Under the Influence
  • A previous conviction for Operating any non-highway vehicle Under the Influence - Golf Cart, ATV, etc.
If your original charge was Reckless Driving, Reckless Endangerment or Negligent Driving in the in the First Degree and you were convicted, it does not count as a prior offense, only if it was originally charged as a DUI or Physical Control and amended down within or after 7 years from the date of arrest.

For example, if you were previously convicted of Reckless Driving and were then charged with a DUI, that Reckless Driving conviction does not increase sentencing penalties under the statute.

Another issue to note is that if you had a previous DUI within 7 years and were charged with a new DUI that was then amended down to Reckless Driving, Reckless Endangerment or Negligent Driving in the First Degree, that new conviction does not require any enhanced penalties but it would be considered a prior offense for any new DUI and if a Reckless Driving or Negligent Driving you would be subjected to a mandatory imposition of 6 months of Ignition Interlock. See RCW 46.20.720.

Figuring out what a prior offense is can be a difficult task and your Seattle DUI Lawyer needs to know how to apply any past convcitions or to make sure that something is not considered a prior offense when being sentenced for any DUI.
We are your Seattle DUI Attorneys and know all there is to know about DUI charges in Washington State so give us a call today to discuss your DUI or Physical Control case (425) 398-4323 or (844) DUI-GONE.

Read about Prior Offenses