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, 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, 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.

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?

Ethical Advertising Practices for DUI Attorneys.

Attorneys are held to strict compliance in advertising, but there is some subjective nature to certain forms of advertising (radio, television, direct solicitation letters and websites).  However, clearly false and misleading representations in advertising and paying others (non-lawyers) for referrals is specifically precluded. These guidelines are outlined here: Rules of Professional Conduct.

I mention this because I happen to advertise on occasion via my website and have utilized such services as Bing advertising and Google Adwords campaigns.  I recently saw an advertisement of a competitor who claimed in their particular Adwords ad that they had the "Best DUI Dismissal Rate in Seattle."  Okay, some say maybe that is just hyperbole, but I say it is a clear misrepresentation of that firm's success in an attempt to mislead prospective clients 

RPC 7.1 states:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Here, the statement by the attorney that they have the "Best DUI Dismissal rate" is clearly a materially misleading statement because without some sort of checks and balances or foundation for comparison with other attorneys’ dismissal rates, it clearly is a false communication to a prospective client.  

Another popular approach to advertising I have seen is to send direct solicitation letters to persons arrested for various offenses.  Now many of my colleagues find this practice deplorable, but under the rules it is allowed.  It is barely allowed, but allowed.  

RPC 7.3 (a) states: A "lawyer shall not directly or through a third person, by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain..."

Now that seems pretty clear, "a lawyer shall not directly...solicit professional employment from a prospective client..."  However, comment (2) to this rules allows for the mailing of letters.

Comment (2) to RPC 7.3: This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client's judgment.

Again, many of us do not like this approach because of the intimidating language used by these attorneys.  They utilize words such as "you are facing jail" "you could go to jail for a year!" etc.  I believe it is tacky, but allowed.  

The final advertising approach I wanted to address is having others refer business to you; for example, having tow truck drivers give out your card to every DUI arrestee who picks up their car after they are released by law enforcement.  This approach is addressed by RPC 7.2.

RPC RULE 7.2 ADVERTISING (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may (1) pay the reasonable cost of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this Rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

Comment (5) to RPC 7.2: Paying Others to Recommend a Lawyer - Lawyers are not permitted to pay others for channeling professional work. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business- development staff and website designers. See Rule 5.3 for the duties of lawyers and law firms with respect to the conduct of non-lawyers who prepare marketing materials for them.

This means that if a lawyer pays a tow truck driver or tow lot where someone had their car impounded to hand out their card, they are very likely in violation of this rule if they gave anything of value for that potential referral.  

Obtaining DUI clients is extremely competitive in the Puget Sound area and I am all for advertising, but attorneys need to ensure they are abiding by the RPCs when attempting to garner business.  I've had many potential clients ask if I will bend the rules in their case and my answer is always "My bar card is more valuable than any potential client."  The same goes for advertising.

 

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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

 

 

 

 

 

 

 

 

 

 

 

Supreme Court of the United States allows for scorn ex-lovers, jealous neighbors, problem co-workers to call police anonymously and have you stopped for drunk driving!!!! SERIOUSLY!!!!

Recently the Supreme Court of the United States of America (SCOTUS) ruled in Naverette v. California that an uncorroborated 911 call alleging a "drunk driver" was sufficient in and of itself to allow law enforcement to stop the suspected driver.  

This ruling effectively strips away the Fourth Amendment rights of every US citizen. Can you imagine a scorn lover, an envious neighbor or some other person who has some sort of beef with another being able to simply call 911 alleging drunk driving and have law enforcement then stop someone. The Court in Navarette v. California held that the tip alone was sufficient to allow a stop for suspected drunk driving.  The court reasoned the anonymous caller's description was essentially credible because a 911 tipster would not have done so with ill-will, that no one would falsely call 911!  Are they freaking serious???  Without getting into a Fourth Amendment diatribe the Court here has given law enforcement carte blanche to stop anyone based upon BS 911 calls.  Just think of all the hypotheticals you could come up with!

In Washington state however, it will be interesting how this case will be implemented as under Article I Section 7 of the Washington State Constitution citizens are afforded more protection than what is provided under the Fourth Amendment.  One such case I can reference is Campbell v. DOL wherein a similar fact pattern was argued and the court held the anonymous tipster's description of a driver (without some law enforcement corroboration of bad driving) was not sufficient to stop someone for alleged drunk driving. 

We will see how all of this plays out, but it is a really really bad decision by SCOTUS and I believe anyone with a brain would agree.


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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

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

Should I take a field sobriety test (FSTs) if pulled over?

Field Sobriety Tests (aka Standardized Field Sobriety Tests).

I'm always asked whether someone should (or more commonly should have) take field sobriety tests when asked.  My common answer is no!  Now, I have heard of one instance wherein a friend of mine told me he took them (against my advice) and was let go.  That result is an anomaly in my experience.  If you have had anything to drink, or smoked marijuana recently, I would advise you skip these tests.  Why?  Well, the way in which these tests are administered are much different than how they were "standardized."  What I mean by that is the National Highway Traffic Safety Administration (NHTSA) conducted three tests (Horizontal Gaze Nystagmus, One Leg Stand and Walk and Turn) to determine the accuracy of predicting a BAC result based upon the clues observed and reached conclusions with percentages related to accuracy (the officers administered these tests on people who had been drinking, observed the clues, guessed what their BAC would be ultimately and whether they would have arrested the subject - of course these were volunteers at the study locations).  After calculating their results they standardized these three tests, meaning that if all three are administered correctly and the individual exhibits a number of clues, there is a high percentage they would submit a BAC reading above the legal limit (0.08).

Seem legit?  Well no...why you say?  Take for example the subjects who participated in this "standardization."  They were a group of family and friends and co-workers who were dosed with specific amounts of alcohol and asked to take these tests.  The tests were conducted without fear of arrest, so you can take out the anxiousness and nervousness, who were of relatively good health and average age.  So officers did not conduct these on older individuals or those suffering from any physical limitations.  Troopers often testify when they were conducting tests on individuals with physical limitations (i.e., knee injury, etc.), "oh I took into consideration their limitations."  Really, how?  Were they ever trained how to "take the limitation into consideration?"  NO!  Also, consider that the standardization took place in a controlled environment, meaning not on the side of the road, in the cold or rain with cars whizzing by at 70 mph.  How could these tests accurately represent a standardized result?  Simple, they can't and don't.  So when a trooper records clues from these tests, those clues themselves are skewed because the conditions of administration are vastly different than how they were trained. Keep in mind that this is how troopers are currently trained to administer these tests, typically in a high school gym, in controlled temperatures, with no distractions, administered on individuals who volunteered and are not subject to arrest. How standardized is that?  Ha!  Why would anyone want to participate in these feats of balance given the training?

My advice, simply politely decline, inform the trooper you are not impaired but that you have been advised not to participate in them.  Then, if arrested, ask to speak with an attorney at the earliest opportunity.

If you have been arrested for a DUI in Seattle or anywhere in Washington State, give me a call (425) 398-4323.  This is what I do and can help you!

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice 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 Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.

DUI Checkpoints in Washington? Supreme Court has always said no, but push to change that!

Legislator calls for DUI checkpoints.  Even though the Washington Supreme Court finds such checkpoints too invasive upon citizens, this particular legislator wants to overlook that and put it to a vote.  Essentially every time a legislator wants to make a name for his or herself, they promote a hot topic issue which has already been decided.  It is the squeaky wheel gets the oil mentality.  Basically they say to their constituents, "I will carry on about an issue until I get my way despite the constitutional precedent."
Here is an excerpt from King5.com reporting on the issue:

Last week, a Port Orchard man was arrested for drunk driving for the 13th time. It's a shocking case for many of us, but not for state Representative Roger Goodman. While he says this case is an example of the extreme, he believes the state needs to do a much better job tracking repeat drunk drivers and pushing for tougher drunk driving laws. The Democrat from Kirkland pushed hard last session to increase penalties and toughen the state's drunk driving laws. Goodman plans to continue that when the Legislature gets together in January. One of the proposals he will be introducing is the creation of sobriety checkpoints. They would require every driver to stop and be checked for alcohol, "To set up a system in known corridors, mostly on Friday and Saturday nights, we would have law enforcement pulling people over." Right now, these checkpoints aren't allowed under the Washington Constitution. "Our courts in Washington have prohibited these sobriety checkpoints where law enforcement would pull over law abiding people as well drunk drivers," said Goodman. "That's considered too much of an invasion of privacy."

Now all you have to do is a search engine inquiry for "Washington DUI checkpoints" to see that legislators always promote something like this in an attempt to further their career (DUI Checkpoint - Typical Cop Reaction!).  The Washington Supreme Court has already ruled on this issue and bringing it up over and again is not how you "get your way," it is a juvenile tactic.  Don't get me wrong, I don't condone impaired driving, but DUI checkpoints invade an individual's privacy and there is no study which relates DUI checkpoints to reduction of DUIs.
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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice 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 Rated Superb for DUI Defense (10.0 out of 10.0) by Avvo.com.

DUI Checkpoints - How Cops Take Advantage!