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.
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?
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?
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 theresultsto back it up!Contact ustoday if that is what you are looking for in your Seattle DUI Attorney (425) 398-4323.
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
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.
I'm no scientist, let's get that out of the way right off the bat, but I do have a basic understanding of breath testing principles utilized in garnering results with a BAC Datamaster and Datamaster CDM. Both of these "instruments' (or as I say, machines) are approved for the quantitative measurement of alcohol in a person's breath. SeeWAC 448-16-020. Essentially, the State Toxicologist has approved these machines for use in testing person's breath alcohol concentration when arrested for an alcohol related driving offense in Washington State.
Breath testing for evidentiary purposes in Washington consists of an operator collecting two separate samples of breath independently from an arrested subject. The operator (usually the arresting law enforcement officer) enters some basic information into the machine, such as date of birth of the subject, etc. then just waits 15 minutes or more and has someone blow into the tube attached. Each time a DUI subject blows the operator is to ensure a new mouthpiece is used. After the samples are collected, if everything went right, meaning there were no errors for an invalid sample, samples outside of 10% of the mean, ambient air, radio frequency interference, etc., it will produce a ticket showing two subject samples, that is the two numbers related to the persons breath alcohol concentration. The State of Washington's legislature has made it very simple for prosecutor's to admit these samples (two numbers on the ticket) into evidence and present to a jury. Literally an elementary student could ask the breath test technician the necessary questions for admissibility, I'm not kidding.
Once the prosecution ends its' direct of the
technician, this is where a trained DUI defense attorney needs to pounce.
As an experienced Seattle DUI attorney I have cross examined breath test
technicians on many many occasions when challenging the results of a breath
test document. The prosecutor's job is done once they get the number in
front of the jury, but the DUI defense attorney's is just beginning. What
do I mean by pounce, well you need to hammer home to the jury that the alleged
numbers are really a probability fraught with uncertainty and the technician
will have no choice but to admit the numbers are not perfect. Any
measured value has uncertainty, as I understand it, that is how science works!
No scientifically produced value is perfect and each measured "subject
sample" could be much lower or much higher given uncertainty. Why
didn't the prosecutor ask the technician about that and disclose it to the
jury? Well, of course they want that precious numbered to be free from
any speculation. That is why it is absolutely necessary to discuss that
with the technician on cross and to make sure and point out in summation that
the prosecutor essentially hid that information from them.
Once you
discuss uncertainty, make sure and then discuss what a partition ratio is with
the technician. The jury needs to know everything about how these measured
values are based upon presumptions. A partition ratio is, in layman's
terms, an assumed value that it utilized to compare blood to breath. The
dumbed down version is this, the ratio assumes that 2100 mL of breath
contains the same amount of alcohol as 1 mL of blood. However, just by
doing some minimal research on partition ratio's will reveal numerous treatises
wherein scientists, medical students, doctors, etc. have concluded the 2100:1
value is incorrect and can have vast ranges, meaning that someone's measured
breath test on a Datamaster presumes this 2100:1 value but if the partition
ratio is actually lower or higher, as has been concluded by these treatises,
the actual breath test result is vastly skewed. Make sure you bring this
out of technician and discuss the revelation to the jury. Again, a great
point to make in summation is "why didn't the prosecutor inform you of
this presumption when they presented their case?" It shows that the
prosecutor doesn't want the jury to speculate on things that are clearly
speculative!
One
additional argument I commonly make is that the presumed temperature of the
simulator is also based upon skewed conclusions. The simulator solution
is a mixture of ethyl alcohol and some type of distilled water to simulate a
known value, e.g. .04, .08. 10 or .15. The toxicology lab prepares a
simulator solution to be approximately .08 for use in the datamaster. The
mixture is tested by several toxicologists an certified for use. The measured
value also has an uncertainty and that should also be exposed to the jury,
especially if the simulator solution is closer to the .072 to .088 ranges (that
is the allowable range of a simulator solution for use with the datamaster).
The mixture, for use in the datamaster, must be heated to a known value
and the common value is 34 degrees Celsius plus or minus .2. In between a
subject's sample, the simulator solution runs into the datamaster for an
"external" check to make sure the datamaster is reading a .08 mixture
(although if the reading is anywhere between .0-72 and .088 it is acceptable?
Really? Anyway, that is an argument for another day). Why is that
34 degrees value important? Well that is the presumed temperature of a
person's mouth when exhaling. Again, there are many treatises and experts
who agree that 34 degrees is not the correct average temperature of every
person, and technician's and toxicologists who testify in DUI trials must
agree, there is too much proof to the contrary and science simply doesn't
support we are all the same. Here is where it is necessary for your DUI
attorney to expose the speculative nature of breath testing. If someone's
mouth temperature is lower or higher, invariably the breath test measured on
the datamaster will be either lower or higher. Again, in summation it is
essential your DUI attorney points out this non-disclosure of information to
the jury.
At the end
of the day, a trained DUI defense attorney can show that these alleged measured
values are fraught with speculation, yet when determining the guilt or
innocence of a citizen the government has no problem with presumptions.
There are numerous other situations in which a trained Washington State
DUI attorney can expose speculative breath tests results to a jury.
If you
find yourself in need of a renowned, trial tested DUI Defense attorney, look no
further than the Webb Law Firm. Call today (425) 398-4323
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
Every July 4th (and every holiday for that matter) the Washington State Patrol and other police agencies conduct DUI Emphasis Patrols in anticipation of an increased number of DUI drivers. Don't be one of those persons stopped for DUI.
Take a cab, call a friend or find some other form of public transportation to get you safely home if you have been drinking. Remember, as I always say, it isn't against the law to drink and then drive, but with these DUI patrols the law enforcement person who may contact you will arrest you if they smell any alcohol.
What do you do if stopped and you have had something to drink? Read my advice on whether to take field tests or not at http://www.webbattorney.com/field-sobriety-tests. Also, always contact an attorney at the station before you submit to any breath test, even if it is a public defender, they can provide the proper advice in these circumstances and can then be a useful witness if your case is filed.
Also, if you are out on a boat and are stopped for a "wake violation" and charged with Operating a Vessel While Under the Influence or BUI as we commonly refer to it, give us a call to discuss your options (or visit - http://www.webbattorney.com/bui-boating-dui.php).
Remember the best way to avoid a DUI is to not drink and drive, but if you or a loved one, or an acquaintance is stopped and arrested for DUI, have them contact our attorneys for immediate assistance at (425) 398-4323.
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
