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.

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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.    

Yet another DUI dismissal! Not only DUI, but Hit and Run, and Reckless Driving!

Today I have a very happy client.  He was alleged to have driven his truck into an electrical box, some bushes, then back up and run over a stop sign while 8 people witnessed the incident.  One of the witnesses called 911 and when police arrived, that witness rode with them to the area the truck was last seen.  The officers found the truck with debris from the bushes and matched the tire tread to the marks left at the scene.  Additionally, the truck's hood was warm to the touch, indicating to them that it had recently been driven.

 

The officers were able to ascertain who the registered owner of the vehilce was by running the plate through dispatch.  They then confronted my client at his home and although he admitted to driving earlier, he was never asked about the incident.  The officers just assumed he had to have been the driver.  The witness was unable to identify who the driver was at the time because it was very dark.  My client was arrested and charged with DUI, Hit and Run of Property, and Reckless Driving.  He was also alleged to have blown a .211 and .217 after his arrest at the station.

 

We had an evidentiary hearing last week to address the issue of corpus delicti (proof of driving) and many other issues (probable cause, admissibility of the BAC, etc.).  Prior to the hearing I attempted to negotiate the case with the prosecutor who flat out laughed at me stating there was no problems with their case.  

 

After a two hour heairng and testimony from two officers the judge (at the King County District Court) advised the matter would be taken under consideration and a written order issued subsequently.  Yesterday I arrived at my office and found that order.  The judge concluded that since no one witnessed my client drive, that his admission to driving was insufficient to place him behind the wheel at the time of driving and dismissed the matter.  

 

This goes to show you that you never know what will happen once you get in there and litigate.

 

 

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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

Overzealous prosecutors v. ethical prosecutors...

As a defense attorney I frequently encounter eager, ready to prove themselves and sometimes arrogant (without any substance or experience to back it up) prosecutors who will do anything to get a conviction.  Today I wanted to comment about a case I had in Seattle Municipal Court and a prosecutor I respect who did the right thing.

It was about a case involving a client who had made the decision not to drive and to sleep off his overindulgence of several beers after a day of finals at a local university.  Suffice it to say, when the security found him slumped over his vehicle's steering wheel, passed out drunk, they were a bit concerned and called the police.  The police showed up, found my client (at this time outside his vehicle) in an extremely intoxicated state.  He was arrested for what is called Physical Control of a motor vehicle while intoxicated (basically drunk behind the wheel but no witness to driving).  He was not very cooperative because of his intoxicated state and ultimately blew very high on the Datamaster (well over the .08 per se level).

Once I interviewed my client I was a bit vexed as to why the case was filed because as any seasoned DUI attorney will tell you, an affirmative defense to Physical Control is that if you have driven your vehicle safely off the roadway prior to being pursued by law enforcement, you cannot be found guilty of the offense.  Well, in my opinion, you cannot better meet this defense than the position in which my client found himself.  I genuinely believe he had no intent of driving and was just "sleeping it off" until he was able to get a sober driver to pick him up.

The City filed the charge nevertheless based upon the security officer's observations coupled with the officer and some alleged statements my client made to the arresting officer.  Once I got the case I knew I had some work to do.  I contacted the originally assigned prosecutor who then turned it over to his supervisor, a gentlemen I truly respect (I also respect the original prosecutor highly as well).  I informed him of the situation, the case law and our position of the legislature's intent regarding the affirmative defense.  At first I met with some resistance, understandably because of the higher breath sample, but after some negotiations my client's case was dismissed due to his proactive measures (that is, because he never intended to drive).

Now the moral of the story is that an experienced prosecuting attorney evaluated the case and deemed the defense to be an accurate representation of the legislature's intent.  Conversely, as I previously blogged about, a younger less-experienced prosecuting attorney pushed a case to trial (on which I ultimately garnered a not guilty verdict for my client) which should also have been dismissed on the merits.  This is the difference between an unethical, immoral, unseasoned, unreasonable prosecuting supervisor and an ethical, respectful one.  It really comes down to the merits of the case and the government's responsibility to do what is right, not seek a conviction at all costs.  I love my job when I can deal with prosecutors such as the one I dealt with at the City of Seattle.  It was the right call and we appreciate it and now my client doesn't have an unwarranted criminal history.

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.