Are Blood Draws for Marijuana indicative of impairment?

I have always stated that the Washington State Marijuana DUI Per Se limit is baseless and does not have an iota of analysis to back it up.  The per se limit in Washington state is 5 ng/mL of whole blood of active THC.  That means if you are caught driving after smoking marijuana and have a blood level of 5 ng/mL of whole blood you are automatically (per se) guilty of DUI.

Recently a study was completed basing the results of some DREs (Drug Recognition Exams) and their correlation to blood draws when THC was used.  The researchers concluded, " Based on this analysis, a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported." Basically the research shows the per se limit in Washington of 5ng/mL of whole blood is baseless or as they say, "it went up in smoke."

One interesting note was that in this study, on the walk and turn test (one of the standardized tests used to assist officers in making an arrest decision) 55.5% of the people who had not smoked at all passed it while only 6% of the marijuana smokers did, those that were drug free.  (Note: this means the 44.5% of sober people couldn't pass the walk and turn).  When the researchers compared the results to the various levels of THC found in the blood of those individuals who did smoke, there was no correlation to people with lower or higher THC levels doing better or worse.  Essentially they determined the roadside tests are superfluous when making a determination as to the impairment of someone suspected of smoking or ingesting marijuana and driving.

You can read the article here for further information.

Call us today if you have been arrested for a DUI in Washington State. (425) 522-4200.

If the facts of the crime charged don't meet the elements of the crime, should the charge be dismissed?

Many times I see people charged with crimes ranging from Theft to, of course, DUI and the facts alleged in the police report simply don't add up to the elements of the crime charged. Take for example a recent case I had wherein a client was charged with Hit and Run of an Attended Vehicle (RCW 46.52.020) in addition to DUI.  The victim stated to police the individual who struck her acknowledged he hit her vehicle and invited her to follow him to his business, which was just a few feet away from the accident, to exchange information.  Moments later, the police went inside the business location and arrested the individual for DUI and Hit and Run.  We filed motions to suppress based upon the ruling in State v. Knapstad and the court granted the dismissal of the Hit and Run (click here to see press write-up).  Our preliminary motions filed assisted this client in having one of the charges dismissed.  

When the facts don't add up to the charge, it is essential your attorney is skilled and knowledgeable enough to know what to file and when.  Here it saved this client a further license suspension and potential for jail.

The ruling in State v. Knapstad essentially stands for the proposition that even assuming the facts in the police report are true, it doesn't establish a case under the charged crime.  So in the example above, Hit and Run, the individual did not knowingly strike someone and leave the scene without leaving information, quite the contrary, as the judge concluded, he invited her into his business just a few feet away after acknowledging the accident.

Call us today! (425) 522-4200 to speak with Seattle's Best DUI Attorney.

About the author:

In his 10 plus years of practice, Seattle DUI Attorney, Nate Webb, has been repeatedly named Super Lawyer Rising Star by Washington Law and Politics Magazine and a Top Attorney in the State of Washington by Seattle Metropolitan Magazine.  He has garnered numerous Not Guilty Verdicts and dismissals for clients charged with criminal offenses.    

Are defense attorneys deserving of the stigma placed upon them?

No one condones driving while impaired, it is a foolish proposition to assume a DUI defense attorney would want someone on the road who has the potential to harm others due to their impairment.  What we, as DUI Defense attorneys, and defense attorneys in general, are really doing is defending liberty and ensuring we don't have a police state wherein all accused persons are automatically found culpable.

Think about it: What kind of world would we live in if just because the government were to allege some offense it would be good enough.  Even when police officers, judges and attorneys are accused of DUI, they enter a plea of not guilty at arraignment, why?, because there is a process and the government has an obligation to prove its case.

I hear all the time "well the State wouldn't have charged him if he did nothing wrong." It is a difficult thing sometimes to get that bias out of the minds of jurors.  I've conducted numerous jury trials and the bias towards the actions of the government comes up, my response is always, have you heard of the Duke LaCrosse case, have you heard of the thousands of people acquitted/released from improper findings due to subsequent DNA tests, what about rouge DUI cops trying to garner an award for most arrests (this happened)?

So it is our job as defense attorneys to represent the best interests of those accused of a crime, even DUI.  DUI defendants have less rights than your average criminal: they don't have a right to a private conversation with an attorney, in King County there really is no speedy trial right (right to a trial within a certain amount of time) and there is no defense to signing something and agreeing to somethign you didn't intend to or were coerced into signing when you could not be in a position to know what you were doing - so DUI are tough to defend, but I do it, I do it because everyone deserves a defense, even those who snear when I tell them what I do for a living.

I see moms, sons, daughters, sisters, CEOs, lawyers, police officers, etc. come into my office because they are accussed of a crime.  Are they automatically guilty in my eyes, of course not!  That is because I have seen all kinds of charges which were unsubstantiated.

The next time you get into a conversation about whether defense attorneys are defending guilty people, remember that anyone, anyone can be charged with an offense which has no merit.  Nelson Mandela, Dr. King, Duke LaCrosse, O.J. (yes O.J.! - the state didn't prove its case), etc. etc. etc.

So the next time you think about making some sort of negative statement about defense attorneys remember, you never know when you may need one....ponder this as well: did you cheat on your taxes, did you speed, did you hit that parked car and didn't leave a note, did you get home safe after drinking too much and driving, did you take that extra bit of money for something at work (a bribe, no matter how small), if you did, then you could be in the need of the services of a defense attorney. We are moms, dads, fathers, mothers and helpers, mostly we are helpers, ensuring thousands of people's rights are protected daily.   And you know what: we are here when you need us regardless of how you feel about defense atotrneys at this very moment!

Can Police just take my blood if arrested for DUI?

This is a common question and the answer depends upon the circumstances.  If you were arrested for an alcohol related DUI and you are capable of providing a breath sample (i.e., not injured as the result of an accident or incapable due to some ailment like emphysema) the officer must first offer you the opportunity to submit a sample of your breath.  If you refuse then the office may apply for a search warrant to obtain your blood and if approved the officer can obtain that blood by necessary means.  This means you could literally be strapped down onto a hospital bed and your blood could be drawn.  Now that is an extreme circumstance, but I have seen it happen.

Another situation in which the officer can take blood is when you consent to a blood draw.  The officer may simply ask you if you consent to a blood draw by presenting you with a consent form and if you agree, it is feasible the State would be able to utilize that blood draw in a subsequent trial.

In the instance wherein the officer suspects you have been consuming or ingesting some type of drug other than alcohol, for example, marijuana or cocaine or oxycontin, then the officer may again apply for a warrant and if approved, your blood may be drawn and ostensibly used as evidence at a trial.

The bottom line is that unless you readily consent to a blood draw, the officer must obtain a warrant.  It is always advisable to ask for an attorney immediately upon arrest to preserve your right to challenge any subsequently obtained evidence in a DUI case or any criminal case for that matter.

The rule is: ask for an attorney and do not speak with police after an arrest, it is a very basic premise and one anyone arrested should exercise but the capacity to adhere to that can prove challenging, especially if one is under the influence.  There is a line from a Shrek movie that goes something like this:

                       Donkey: I have the right to remain silent!
                       Shrek: Yes Donkey you have the right, what you lack is the capacity...

So, don't consent to any search and always ask for an attorney.

As always, please feel free to call us at the Webb Law Firm for advice and a free consultation for any DUI arrest.

Seattle DUI Attorney, Nate Webb, discusses the common question: "How can I beat the breath test?"

Seattle DUI Attorney, Nate Webb, answers the question: "How can I beat the breath test?"

Quite frequently when I am at a dinner party or some other function and disclose that I am a DUI attorney, I'm inevitably asked the question, "what do I do if I get stopped" which then turns into "how can I beat the breath test?"  Well, the smart alec answer is "don't drink and drive" and of course that is true, but what about the person who has consumed alcoholic beverages responsibly and is now faced with a breath test?

Well, that person knows in their mind they don't feel affected or impaired but have no idea how this machine measures breath.  There are known variances which automatically raise your level which I've previously blogged about but here is another tip for those concerned with being near the per se ("legal limit") threshold of .08 and blowing over after drinking.

TIP: When you are taking a breath test, the machine (DataMaster) will record a proper sample at approximately 5 seconds and most assuredly at 8 seconds so your best bet is to blow only for that period.  The officer or trooper will coach you and demand you blow much longer, but that minimum is all that is necessary for the machine to record a result.  The reason this is important is because there is much research which indicates that the longer you blow the higher your result will be.  Troopers regularly testify that when you blow longer it just records a "more accurate" sample but the truth is the longer you blow the "higher" your result, not more accurate.  Law enforcement is trained on this concept and typically demand a 20 second or longer blow from a subject thereby increasing the sample.  Meeting this minimum level will be recorded in the online database and probably won't make the officer happy due to their training to get you to blow longer, but the fact is if you submitted a proper blow and it was recorded, you complied with the request.  Also, the result will be much lower than if you actually blow 20 seconds or more.  

Some people will say that you should suck on a penny or some other object to skew the results, but I have not ever found that to be an accurate or advisable method.

A seasoned Seattle DUI Lawyer will know how to challenge the results provided and present the known variances and presumptions in breath testing when a jury trial occurs, but this is just one tip.

Also, if you did submit to a breath test, always, I repeat, always ask for an independent blood draw.  You cannot be denied that opportunity.  If it was denied because you were booked into jail then the breath test results should be suppressed by the court.

If you or someone you know has been arrested for DUI, call today for immediate assistance from one of the "Top Attorneys" in Washington State for DUI Defense and Super Lawyer Rising Star and Superb rated DUI attorney (Avvo.com).  Hundreds upon hundreds of satisfied DUI clients.

Call today (425) 398-4323 or visit our site: www.webbattorney.com

Seattle DUI Attorney, Nate Webb, Marijuana DUI Lawyer discusses: Is one puff too many, two puffs, three puffs?

Recently I had an individual come and see me about a possible Marijuana DUI charge.  Hypothetically if an individual admitted to use, which is legal in the State of Washington, but was adamant they were not impaired by their "one" puff prior to driving and that the use was for therapeutic reasons can they still be convicted?.  Typcially I would assure an individual that one puff wouldn't get them close to the per se limit of 5 ng/mL of whole blood.  But it does beg the question, how many puffs are too much given the 5 ng/mL standard?

When the legislature enacted the per se limit of 5 ng/mL of whole blood as a per se "impaired" limit it essentially relied upon other state's per se limits.  There is no definitive research out there which establishes that ever person who had a whole blood concentration of 5 ng/mL is impaired to the degree that they cannot operate a motor vehicle.

So when someone is a regular user, much like a regular consumer of alcohol, how does that individual know how much is too much?  There is simply no way to tell given the quality of the herb, the potency of the particular varietal they smoked or consumed.  It is a very slippery slope that people are not encountering.  When in doubt, don't smoke and drive but if you are therapeutic user for example you would be well-advised to have your blood checked a few times after you normal use to determine where you are on the spectrum of ng/mL measurements.

Personally I believe it isn't fair for the therapeutic users to be subjected to arrest simply because some overzealous trooper or officer smells marijuana and automatically thinks they have someone impaired when they typically have very limited ability to determine impairment using roadside test which were implemented to gauge impairment of drivers who consumed alcohol.  This area is ripe for litigation given law enforcements limited ability to tell if someone is impaired or under the influence of marijuana.

Just look at NHTSA's own description of use of marijuana, it is so vague I wonder if the Washington State Legislature really did any research at all.  Also, see this resource which says that marijuana use doesn't significantly impact driving abilities as well as a University of Washington study which says it still needs more research to definitively say whether there is any impact on driving.

If you or someone you know has been arrested for a DUI, including a Marijuana DUI, call today to speak with a highly experienced DUI attorney, Seattle Marijuana DUI Lawyer, Nate Webb at (425) 398-4323.  

Seattle DUI Attorney, Nate Webb, discloses how everyone's alleged breath test result is elevated by 6.5% automatically!

For the last 15-20 years or so the Washington State Patrol has utilized a machine to test, via breath samples, for an estimate of ethanol in a subject's system named the BAC DataMaster and BAC DataMaster CDM.  Why do I say it is an "estimate" of a person's ethanol level? Because the principles utilized are just that, an estimate.  For example, as stated in the title of my post, every single person who submits to a sample of their breath, who has consumed any alcohol at all, will have an increased ethanol estimate of 6.5%. 

The reason is that the Washington State Patrol utilizes an old theory of internal checks via what is called a simulator solution to check that the machine is reading a .08 mixture (prepared by the Washington State Toxicology Lab).  The Tox Lab prepares this mixture and it is heated up to 34 degrees Celsius to simulate the mouth temperature of all persons on earth.  The problem with this assumption is that the figure 34 degrees Celsius is based upon a small sample study conducted in the 1940s wherein it was concluded that the mean temperature of persons (only in that sample group) mouth was 34 degrees Celsius.  A more recent study with a much larger sample size concluded that the average temperature is actually 35 degrees Celsius. 

This means that every single person who submits to a sample of their breath on the DataMaster who has consumed any alcohol recently will automatically have an increased estimate of their breath based upon this outdated theory the government still utilizes to this day!  Seem unfair?  Of course it is but they don't care.  It is only when I cross examine the State's "expert" in breath testing (really only a glorified button pusher) that this revelation is made to the jury. 

We at the Webb Law Firm make it a priority to keep up with the most recent studies and treatises on breath testing, especially how it relates to physiology and biology, in defense of those accused of a DUI.  Call today to find out more about how the government's machine is being used in a false manner each and every time. 

Call us today! (425) 398-4323 to speak with Seattle's Premier DUI Defense Attorney.

About the author: In his 10 plus years of practice, Seattle DUI Attorney, Nate Webb, has been repeatedly named a Super Lawyer Rising Star by Washington Law and Politics Magazine and a Top Attorney for DUI Defense by Seattle Metropolitan Magazine and has numerous Not Guilty DUI verdicts and dismissals under his belt.

Seattle DUI Lawyer, Nate Webb, acquires another Not Guilty Verdict for a DUI client!

Seattle DUI Attorney, Nate Webb, represented a client in Upper Kittitas County District Court (Cle Elum) and acquired a Not Guilty verdict from a jury on November 13, 2014. State of Washington versus C.H. 

Facts: The trooper alleged my client was speeding well in excess of the posted limit, had bloodshot, watery eyes, slurred speech, the odor of alcohol, continually swayed throughout their contact, had continually unsteady balance, failed to follow simple directions, he also alleged the client failed three field sobriety tests, took a portable breath test and was deceptive while doing it, and refused a breath test after arrest at the station. Further, the trooper testified that there were at least three open containers in the vehicle.

The State presented two witnesses, one was the trooper who made the above allegations and the second was a toxicologist from the Washington State Patrol Toxicology Lab.  Mr. Webb was able to succesfully impeach the trooper's testimony via the State's own witness, the toxicologist.  The trooper, an apparent 16 year veteran of the Washington State Patrol, testified as to the proper administration of the field sobriety tests pursuant to the National Highway Traffic Safety Administration standards and protocols only to be contradicted by the toxicologist after Mr. Webb challenged the trooper's conclusions.  

The jury returned a verdict of Not Guilty.

State v. C.H. (Cle Elum - Upper Kittitas County District Court - November 2014).

Seattle DUI Attorney, Nate Webb, discusses the implementation of supposedly "new" breath test machines by the Washington State Patrol.

The Washington State Patrol implements "new" breath test machines across the state, problem is they aren't "new!"

Today an article was published by a local news agency which discussed the implementation of the new breath test machine in Washington state for sampling of breath when persons have been arrested for DUI.  It is called the Draeger Alcotest 9510 and is set to replace the DataMaster and DataMaster CDM.

The news article did seem to omit a very interesting fact however; this "new" machine has actually been sitting at the Washington State Patrol's impaired driving unit section (Roanoke Station) for approximately 4 years.

Interestingly, I recently cross-examined one of the Washington State Patrol breath test technicians during a jury trial and we openly discussed the fact the Washington State Patrol had 86 Draeger Alcotest 9510s just sitting around, in fact, she admitted they had been sitting around for approximately 4 years and that it, the WSP, was waiting until it acquired a total of 200 machines before implementing them statewide. That conversation was less than one week ago, on the record, under oath in King County District Court (West Division), then lo' and behold we have an article published which informs the public 83 of the 86 machines are being implemented.

Either this breath test technician lied under penalty of perjury or she was poorly uninformed about the breath test section's plans for implementation of the Draeger.  

Regardless, the fact of the matter remains that these "new" machines are not new by any stretch of the imagination and since they have been literally sitting around not being used on a daily basis, I personally am curious to know how long the intricate interior workings of the machine have been maintained and whether there has been deterioration.

Only time will tell how these "new" machines hold up, but rest assured, your Seattle DUI attorneys at the Webb Law Firm will always challenge the government's evidence because it continues to use old methods of testing based upon outdated testing principles.

If you or someone you know has been arrested/charged with a Washington State DUI, contact us today for immediate DUI help (425) 398-4323 or 1-844-DUI-GONE.

About the author: In his 10 plus years of practice, Seattle DUI Attorney, Nate Webb, has been repeatedly named a Super Lawyer Rising Star by Washington Law and Politics Magazine and a Top Attorney for DUI Defense by Seattle Metropolitan Magazine and has numerous Not Guilty DUI verdicts and dismissals under his belt.

Seattle DUI attorney, Nate Webb, answers the question: "If I wasn't Driving how can I be charged with a DUI?"

How can I be charged with a DUI when I was just sitting in my car? There is a specific statute that allows for the charging of a DUI case wherein there is no proof the officer actually say you driving.  It is called Physical Control of a Vehicle Under the Influence (RCW 46.61.504).  The applicable statute says this:

1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:

(a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or

(b) The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or

(c) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(d) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

What is Actual Physical Control (non-driving DUI)?  There is no jury instruction on what actual physical control is, the only instruction given from the court instructs the jurors as to the following:

A person commits the crime of being in actual physical control when he or she has actual physical control of a motor vehicle while he or she is under the influence of or affected by intoxicating liquor or while he or she has sufficient alcohol in her body to have an alcohol concentration of 0.08 or higher within two hours after being in actual physical control shown by an accurate and reliable test of the person's breath. WPIC 92.01

So how can I be convicted?  The prosecutor is going to somehow have to convince the jury you had control over the vehicle and the defense will have to convince the jury you did not.  Either way, it is always and interesting argument.

Safely Off the Roadway - An Affirmative Defense

If you have been charged with Physical Control of a Motor Vehilce While Under the Influence of Alcohol or any Drug (RCW 46.61.504) there is one well-known defense to the charge.  It is an affirmative defense known as "safely off the roadway." Even the cops know this defense, so they always, I repeat always claim you weren't safely off the roadway, but guess what, that is up to the jury to decide. 

As a seasoned Seattle DUI Attorney, I have utilized this defense numerous times for persons charged with a Washington State DUI.  What the statute says about the defense is this:

"No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway."

RCW 46.61.504 (2).

Now the law enforcement office undoubtedly knows about the defense to the charge so I have seen reports written which say something like "I observed the vehicle pulled to the shoulder of the road but the exterior side mirror was protruding into the lane of travel and cause a significant risk to passing motorists."  What does that mean, even though you pulled your car over and stopped driving as the legislature intended, if you had been drinking the cops want to bust you, they don't care there is an applicable defense.  I've literally had a prosecutor tell a jury (after my client was found not guilty) that "I don't believe in safely off the roadway."  Yes this is a from a person who took an oath to seek justice under the law.

Seattle DUI Pros owner, Nate Webb knows how to apply this defense effectively. I have had numerous cases dismissed when applying this defense and not guilty verdicts when presented to a jury.

If you weren't driving and were still arrested for DUI (Physical Control), call today to discuss your case (425) 398-4323 or (844) DUI-GONE.

Seattle DUI lawyer, Nate Webb discusses: Didn't think you waived your rights during your DUI arrest, think again! Cops are trained to trick you!

Did you "Waive" your rights when you were processed for DUI?  

You probably did and didn't know it.

Be aware that cops are not on your side once you have been arrested. For example the supposed "waiver" of your rights portion of the Constitutional Rights form presented to every DUI client in Washington purposefully omits the word "waiver" from the advisement.

It reads:
"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."

The form is written in this fashion so that you don't realize you are in fact waiving your rights! That is also why the first sentence says "I understand my Constitutional Rights." The cops know most people who have been arrested are scared, anxious, nervous and just want to get the process over, that is why the form is created in this fashion, they figure if they just say you are acknowledging your rights in the same sentence as the supposed "waiver" it will fool the defendant, and sadly they are correct. 

That being said, call the Webb Law Firm (425) 398-4323 if you or anyone you know has been accused of DUI or any other misdemeanor offense in Washington State, we know what we are doing, we have helped literally hundreds upon hundreds of persons with their criminal cases with fantastic results.

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!

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!

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

 

 

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.

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:

DISQUALIFICATION OF JUDGE

(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.

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.

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

A Travesty of Justice is Happening in the King County District Court of Seattle!

In the past several years I have seen an increasing number of DUI cases proceed to jury trial, even on a first offense.  Prosecuting attorneys across the state are becoming more stringent with negotiating DUI cases, even more so than serious felony offenses such as rape, assault, sex crimes, etc.  Essentially the government has taken the position that DUI defendants in Washington are nearly equivalent to defendants having been charged with a serious sex crime!  Does that seem like an exaggeration, well it isn’t.  For example, the King County District Courts in Seattle are so backed up with DUI cases that have not been resolved, that the judges are implementing a little know provision under the speedy trial rule that other judges in the state have never even heard of, it is called the cure period.  The time for trial is regulated by CrRLJ 3.3 and the very first provision of that rule states:

(a) General Provisions.

(1) Responsibility of Court. It shall be the responsibility

of the court to ensure a trial in accordance with this rule to

each person charged with a crime.

CrRLJ 3.3 (a)(1).

Now when a defendant cannot be brought to trial under the normal provisions of 3.3 then the court may, notice I did not say shall, but may, in its discretion add up to an extra 28 days of time.  Here is what the time for trial cure period provision says:

(g) Cure Period.  The court may continue the case beyond the

limits specified in section (b) on motion of the court or a party

made within five days after the time for trial has expired.  Such

a continuance may be granted only once in the case upon a finding

on the record or in writing that the defendant will not be

substantially prejudiced in the presentation of his or her

defense.  The period of delay shall be for no more than 14 days

for a defendant detained in jail, or 28 days for a defendant not

detained in jail, from the date that the continuance is granted.

The court may direct the parties to remain in attendance or be on-

call for trial assignment during the cure period.

CrRLJ 3.3 (g).

Now does the court adding time a defendant’s time for trial happen often, the answer is a resounding yes!  It happens every single day in King County District Court Seattle.  This addition of time is now the norm, it is not really even utilized as a discretionary ruling at this point it is being utilized by the court to accommodate the fact the King County Prosecuting Attorney’s Office has purposefully backlogged their caseload to the point of overwhelming congestion.  Defendants and their attorneys on a DUI will normally appear about a dozen times even if they are simply trying to get out to trial.  The court is implementing this portion of the time for trial rule in an abuse of discretion in my opinion.  CrRLJ 3.3 (g) clearly states that the court “may” continue the case beyond the time periods for up to 28 days.  The rule states further that the continuance shall not be for more than 28 days (for those out of custody). 

The court in Seattle is now imposing an automatic 28 day period, it is not implementing the rule correctly, that is, to place a case on standby and see if a courtroom opens up.  The reason the rule is being implemented is due to the backlog of cases, directly related to the prosecuting attorney’s office’s policy of now not negotiating even the most minimal of DUI cases.  For example a person charged with a DUI and with a BAC of below .08 is now being forced to jury trial in an effort to resolve their case.  There are no more first bites of the apple for a DUI defendant.

I’m a defense attorney and some might assume I condone drunk driving, I clearly do not.  But I also understand that not every single DUI defendant deserves to have to go through a jury trial when the legislature quite clearly created an avenue for the resolution of cases under RCW 46.61.5055.  For example, a DUI case can be amended to Reckless Driving or Negligent Driving in the First Degree.  In both of those instances, there are restrictions on a person’s liberty and they are under the jurisdiction of the court for up to 24 months.  The defendant must also pay fines and fees to the court, obtain an alcohol/drug evaluation, at a minimum attend an alcohol class or further treatment and a DUI victim’s panel.  A person convicted of a Reckless Driving is also subject to a 30 day license suspension and requirement for SR-22 (high-risk) insurance for three years.  In both cases, the State typically asks the defendant to complete at least one day of jail which is either converted to a day of work crew or community service.  So, the DUI defendant is not getting away scot-free.  The reductions are also considered prior offenses, meaning that if the individual is again charged with a DUI in the next 7 years (from date of violation) and are convicted they face increased penalties (at least 30 days in jail and 60 days of electronic home detention). 

The policy of the King County Prosecuting Attorney’s Office doesn’t really make sense because clearly every DUI case cannot be taken to trial, and believe it or not, some defendant’s cases result in not guilty verdicts.  The KCPA is basically taking the position that if the jury finds the defendant not guilty then it is on the jury and the office essentially washes it hands of any “responsibility” for the end result.  Is that really the case, no it isn’t.  With a Not Guilty, the jury concludes that the KCPA had such a weak case that it should never have been brought in the first place.  Remember all six jurors must agree unanimously.  When six people unanimously agree that a DUI didn’t occur, then quite clearly that case should have been dealt or never even filed in the first place. 

The point of this article is that the Court, in collusion with the King County Prosecuting Attorney’s Office, is improperly extending the time for trial of DUI Defendants due to the backlog of cases created by the KCPA’s policy of not dealing any DUIs.  The legislative history of the “cure period” portion of the time for trial rule did not envision this particular use.  I believe the Washington State Supreme Court will be appalled at the court’s activities of extending speedy trial under these conditions once it is finally addressed.  The rule was meant to be implemented when some extraordinary circumstance caused a case to extend beyond speedy trial.  It was not meant to be applied “just because” there are no courtrooms to hear a case on the day speedy trial expires.  When speedy trial expires, if there is no good reason for that happening (more so that just court congestion due to an uncompromising prosecuting attorneys’ office), the case must be dismissed under the rule.  It is a shame when judges cave to the demands of the KCPA.  No one condones DUIs, but in reality many criminal cases of all sorts are amended to reach a resolution, that is reality. 

I’ll leave you with this fact, a defendant in Kirkland, WA was charged with First Degree Murder for sneaking into a neighbor’s home and stabbing her to death.  The KCPA charged that individual with First Degree Murder but then amended it to Second Degree murder.  The murder suspect got a deal, plain and simple, but anyone charged with DUI (a misdemeanor by the way) will get no reduction.  Isn’t that a bit out of touch with reality?

Good marketing versus Great Lawyering - who do you want standing with you in court?

In this day and age of social media, easy access to hundreds of potential lawyers, doctors, plumbers, etc. marketing a business is extremely valuable and necessary.  However, in the context of what is a good law firm or doctor, etc. versus what is a snappy marketing campaign the user/client can become sucked into the hype. 

A great marketer is going to make that businesses ROI shine but a great marketer does not make a great lawyer or doctor or plumber or restaurant.  How many times have you been to a restaurant based upon the advertising of that restaurant?  What about choosing a professional service such as a doctor or lawyer?  Would you really select a professional service based upon a clever website, a letter sent to your home, or catchphrase you hear on the radio?  Is that smart?  Does that indicate the professional service has integrity or has produced positive results.  Of course it doesn’t.

I have heard professional services advertising using snappy 1-800s on the radio but that snappy number and advertisement does not mean you are going to receive competent and articulate service.  I have a 1-800 number but it doesn't in an of itself tell a client I'm a great DUI attorney does it?  What does is Results, period!

It is really amazing how our minds can be influenced by simple phrases or marketing gimmicks, but that is how advertising works.  The internet is a valuable asset for a professional service but good old fashion word of mouth is really a key element when selecting a professional.  I know I wouldn’t choose an eye surgeon because he or she had a great 800 number catchphrase, so should you choose a great lawyer based upon snappy, witty, clever advertising or based upon results.  It’s obvious what you should do when selecting an attorney, look at their results.

My suggestions is that you be very cautious about getting roped into clever advertising when you are looking for someone to assist you with a criminal case.  I 800 DISMISSED or something similar doesn’t for one minute mean the lawyer on the other end of the phone is competent, it just means he/she is an effective marketer.  Do you want a good marketer standing in court in front of a jury or a great lawyer?

DUI Blog on Marketing vs. Lawyering