Persistence is key with any DUI case!

Recently (August 2014) I resolved a client's case regarding a DUI charge.  The significance of this resolution was due to our persistence in litigating this matter. This particular client came to me after having driven his car off the road at Sand Point Way in Seattle, WA.  The client was taken to the hospital for a blood draw which revealed he had a .37 ethanol reading (BAC of .37).  Yes that is extremely high, and in some instances a person can die from a concentration of that amount.

Nevertheless, I took the case on and we litigated this matter over the course of a year and a half. After numerous motions were filed back and forth (between the prosecutor and myself), and we appeared in court at least a dozen times, the case was finally set for an evidentiary hearing the day of trial.  The prosecutor made an offer to my client to plea as charged and they would only recommend 3 days in jail (the mandatory minimum in this case was 2 days in jail), but that if my client proceeded to trial and lost the prosecutor would ask for 10 days in jail.  My client, following my advice, politely declined the offer.

Our arguments at the evidentiary hearing included (1) whether the government could prove my client was the actual driver of the vehicle involved in the accident (corpus delicti) and (2) whether the officer had probable cause to arrest.  The hearing involved an independent witness who heard the accident and found my client face down outside of the car moments later.  There was also testimony from one officer.  The officer testified there were numerous broken alcohol containers outside of the vehicle and some alcohol containers inside the vehicle.  The officer also testified my client had bloodshot, watery, eyes, told others he was the driver, smelled of alcohol, had slurred speech, was incoherent and admitted to consuming ¾ of a gallon of whiskey!

I know a lot of attorneys who would have convinced their client to accept the government's offer based upon the allegations, but I simply have a standard of not pleading anyone as charged unless they insist.  After the hearing, and after my cross examination of the witnesses, prior to the ruling of the court, the government offered a plea deal.  The reasoning was that if the court agreed with my arguments the case could have been dismissed, conversely if the judge agreed with the government my client would have not been able to accept the offer and would have had to take his chances in front of a jury.  Prior to the ruling the government stated it would offer a Negligent Driving in the First Degree and not ask for any jail.  After careful consideration, my client accepted the offer.  After the plea was entered, the judge stated she would have ruled against the defense on our issue, so it was a wise decision by my client.

Now normally I don't necessarily post a Negligent Driving in the First Degree as a victory as many of my competitors do, I only like to post dismissals or not guilty verdicts but in this particular case, a DUI accident with a .37 blood draw reduced down to a Negligent Driving (misdemeanor) was an excellent outcome.  The outcome was only achieved due to the persistence of my client and myself.  It is not to toot my own horn that I post this, but it is to show that as a DUI attorney you have to take on the most difficult of cases and try your best despite the evidence.

I know a lot of attorneys who would have put forth the same effort as I did but there are many out there claiming to be “experienced” DUI attorneys who would have caved at the first hearing and convinced their client to plead guilty and "throw themselves upon the mercy of the court."  

Did you have an experience like that with your so-called “trial experienced DUI attorney?”  My point is, if your attorney was not or is not willing to put in the effort as a truly experienced aggressive DUI attorney, they are likely performing a disservice to their client and should probably exit this particular area of law.

We are truly aggressive, experienced, courtroom and trial tested DUI attorneys and have the results to back it up! Contact us today if that is what you are looking for in your Seattle DUI Attorney (425) 398-4323.

 

 

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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 has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and 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

 

State v. Martines - DUI blood draws are two searches! Here come the suppression orders...

On July 21, 2014, the Washington Court of Appeals, Division One, published its decision regarding an improper warrant for a blood draw of a DUI suspect in State v. Martines.  The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another. 

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

 

A Washington State Patrol trooper arrested Mr. Martines on suspicion of felony DUI and applied for a warrant based upon his observations. The trooper’s affidavit of probable cause included the following language, “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.”  The court concluded that since the trooper’s affidavit failed to mention the blood would be extracted and tested, the results (i.e. blood draw) were to be suppressed.

Obviously the warrant utilized in this particular case is the same one all trooper’s use across Washington State and defense attorneys will inevitably seek to apply the court’s ruling to every blood case wherein a DUI suspect has his/her blood drawn for the purpose of testing it for alcohol or the presence of any drug.  I suspect the State will then seek to obtain another warrant to test the blood held at the toxicology lab (presuming it has been saved) again.  However, this seeking of an additional warrant will obviously be challenged.  Can the State seek an additional warrant to test blood it already obtained based upon a previously invalid warrant?  The court’s will have to decide that issue, but it should be interesting.

One other issue I believe this decision raises is that if a blood draw and subsequent test of that blood are indeed two separate searches won’t this raise issues regarding the Implied Consent Warnings for Blood.  The warnings advise an individual that their blood will be extracted for testing, but the language specifically says “this test…..”  It does not mention “these tests” to clearly indicate the blood will be searched twice (extraction and subsequent testing).  Washington Courts have long held that inadequate Implied Consent Warnings subject the ill-gotten gain (breath or blood test) to suppression. 

The State will argue that once you submit to a test the State can do whatever it wishes, but I disagree because the court in Martines clearly stated, “We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”  This means that even if the blood is lawfully procured, either through a warrant or by consent, the State must obtain a warrant to test the blood. 

Again, the courts will have to decide this issue but it will be interesting.