Seattle DUI Attorney, Nate Webb, discusses - What are motions in limine?

What are Motions in Limine?
Motions in limine are motions presented to the court prior to the beginning of a jury trial.  The presented motions are presented to the court in an effort to have the court limit or restrict the evidence to be presented by the other party.  Each party may present their proposed motions in limine to the court for review and approval.  The judge determines whether these motions are adequate and should be implemented. The motions can range from excluding witnesses from the courtroom to suppression of particular comments directed to the jury from witnesses.

Why are they important?

Motions in limine are invaluable for both sides.  In the criminal context they assist the court with the natural flow of the case and preclude unwarranted or impermissible comments from either party or the party's witnesses.  It is essential your attorney present applicable and succinct motions to the court to restrict impermissible testimony.

What happens if a party violates a motion in limine during trial?

If a party or a party's witness violates a motion in limine during trial the court may either simply move to strike the impermissible testimony, instruct the jury via a limiting instruction, or may grant a motion for a mistrial brought by the aggrieved party.  Some examples of why a mistrial might be granted would include a witness presenting testimony that was suppressed (for example if a witness mentioned the results of a blood test that had been suppressed due to a protocols violation, etc.).
Having conducted numerous jury trials I am extremely familiar with motions in limine.  It is essential in the DUI context your DUI attorney knows how to both present these and argue them effectively and the tendency of certain judges to exclude particular evidence or restrict how witnesses may testify.

As a Seattle DUI Lawyer I am very familiar with how courts and judges apply these motions.

If you need a DUI Attorney, give us a call today to discuss your case (425) 398-4323 or (844) DUI-GONE.

Seattle DUI Lawyer Nate Webb answers: "Can I get a Judge off my case!"

Can I remove a judge from my case?  The answer is yes, subject to a few conditions. 

Pursuant to CrRLJ 8.9 and RCW 3.34.110 a judge may disqualified for any reason as long as they have not made any discretionary ruling and as long as you have filed the Motion for Change of Judge within the 10 day time period explained below.  

Even if a judge has set conditions at your arraignment (bail and setting of conditions of release), as long as your motion is timely the judge can be removed from your case and would be precluded from making any further decisions with respect to your case.

When charged with a Washington State DUI, it is essential your DUI attorney knows which judges have which particular tendencies and which pro-tem judges to accept or avoid.  This is crucial to your defense and only a seasoned Seattle DUI Lawyer will have this knowledge.

The applicable Court Rule and Statute are outlined below:

DISQUALIFICATION OF JUDGE

(a) Disqualification. In any case pending in any court of limited jurisdiction, unless otherwise provided by law, the judge thereof shall be deemed disqualified to hear and try the case when the judge is in any way interested or prejudiced. The judge may enter an order of disqualification.

(b) Affidavit of Prejudice. The judge shall also enter an order of disqualification under the provisions of this rule if, before the judge makes a discretionary ruling and before the trial is commenced, a party files an affidavit alleging that the party cannot have a fair and impartial trial by reason of the interest or prejudice of the judge or for other ground provided by law. Only one such affidavit shall be filed on behalf of the same party in the case and the affidavit shall be made as to only one of the judges of the court. All rights to an affidavit of prejudice will be considered waived when filed more than 10 days after the defendant's plea is entered or arraignment is waived, unless the affidavit alleges a particular incident, conversation or utterance by the judge, which was not known to the party within the 10-day period. In multiple judge courts, or when a pro tempore or visiting judge is designated as the judge, the 10-day period shall commence on the date that the party has actual notice of assignment or reassignment to a designated judge.

(c) Transfer. Whenever a judge is disqualified, the judge shall immediately make an order transferring and removing the case to another judge authorized by law to hear the case.

 

CrRLJ 8.9.

 

District judicial officers — Disqualification.

(1) A district court judicial officer shall not preside in any of the following cases:

(a) In an action to which the judicial officer is a party, or in which the judicial officer is directly interested, or in which the judicial officer has been an attorney for a party.

(b) When the judicial officer or one of the parties believes that the parties cannot have an impartial trial or hearing before the judicial officer. The judicial officer shall disqualify himself or herself under the provisions of this section if, before any discretionary ruling has been made, a party files an affidavit that the party cannot have a fair and impartial trial or hearing by reason of the interest or prejudice of the judicial officer. The following are not considered discretionary rulings: (i) The arrangement of the calendar; (ii) the setting of an action, motion, or proceeding for hearing or trial; (iii) the arraignment of the accused; or (iv) the fixing of bail and initially setting conditions of release. Only one change of judicial officer is allowed each party in an action or proceeding.

(2) When a judicial officer is disqualified under this section, the case shall be heard before another judicial officer of the same county.

(3) For the purposes of this section, "judicial officer" means a judge, judge pro tempore, or court commissioner.

 

RCW 3.34.110.

 

If you are concerned about what you have heard about a particular judge and want to see if there is still time to have them removed from your case, give the Seattle DUI Pros a call to discuss your DUI arrest today (425) 398-4323 or (844) DUI-GONE.

My friend said I could just get a Deferred Sentence on my DUI, so let's just go ahead and do that! Um, your friend is wrong.

Deferred Prosecution versus a Deferred Sentence

A Deferred Prosecution is a treatment option for individuals charged with a misdemeanor or gross misdemeanor offense in Washington State.  Click to view the applicable statute RCW 10.05.

This is different from a Deferred Sentence under RCW 3.66.067.  When a deferred sentence is imposed by the court, that is when an individual is either found guilty or enters a plea of guilty to a misdemeanor or gross misdemeanor (other than DUI or Physical Control) and the judge defers the sentence, meaning there is a conviction for a period of no more than 2 years then it will be dismissed after the period of probation has run; however, you are subject to the conditions of the guilty finding in the interim (i.e., jail, fines, fees, probation, alcohol classes, etc.).

What a Deferred Prosecution involves is that the individual petitions the court to attend and complete a prescribed treatment program (2 year program for a Washington State DUI involving alcohol dependency) in lieu of challenging the allegation in a trial.
The individual waives his or her right to challenge the evidence and instead opts to complete treatment for one of the following:

(1) alcoholism (2 year program),

(2) mental health (length of program depends upon treatment provider) or

(3) drug addiction (length of program depends upon treatment provider).

 

It is possible to combine treatment under two of the reasons above (i.e., the individual can elect to pursue a mental health deferred prosecution with some alcohol treatment if mental health is the underlying factor and reason for the offense).

If you were charged with an alcohol DUI you can utilize this treatment option in lieu of going to jail.  The same applies for other offenses as well.
In the case of an alcohol dependent deferred prosecution for a DUI charge, if the individual successfully completes the two year program, then after three additional years (a total of 5 years from the date of entry by the court) of continued law abiding behavior, the charge will be dismissed.

There are numerous requirements and conditions to follow for those who elect to enter into a deferred prosecution.  For example, if you were arrested for DUI, you will be required to install an ignition interlock on any vehicle you drive for a minimum period of one year.  This requirements applies to all Deferred Prosecutions wherein the individual was arrested for DUI or Physical Control, regardless of the presence of alcohol (this is imposed by the DOL).

Additionally, in alcohol dependent cases, you will be required to pay probation costs, abstain completely from alcohol for the 5 year probationary period, attend two self-help meetings for the first two years (at a minimum), strictly comply with the treatment providers program and maintain law abiding behavior.

Now on the surface it may seem like a great opportunity to avoid any DUI conviction; however, this option is not recommended for everyone.  First, you must admit you have a problem with alcohol, drugs or have a mental health issue (i.e., you are an alcoholic, drug addict or suffer from mental illness) and that without treatment you are likely to re-offend. Second, (at least in the case of an alcohol dependency program) the treatment program is an intensive outpatient program that lasts for two years.  Lastly, you will still have to be monitored by probation for 5 years and subject to random urinalysis tests. Additionally, you can only petition the court for a Deferred Prosecution once in your lifetime.

For drug cases and mental health cases, the treatment provider must outline a program and it must be accepted by the court.  Again, no matter which you choose, if you were arrested for a DUI or Physical Control charge you will be required to install an ignition interlock device on any vehicle you drive. See RCW 46.20.720.

Typically a Deferred Prosecution should only be considered when the subject truly has either an alcohol dependency problem, drug addiction problem or mental health issues which if not treated would lead to a likely re-offense AND the individual is facing significant jail time on this offense.  This means it is not normal to enter into a Deferred Prosecution on a first offense DUI charge.

Contact the Seattle DUI Pros today if you have been charged with a Washington State DUI and are considering a Deferred Prosecution. (425) 398-4323 or (844) DUI-GONE.

I had a Neg 1 a few years ago so this new DUI is my first offense...not so fast!

Many times I will be asked the question, "I had a DUI arrest a few years ago, but it was dropped to a Reckless Driving, so this new DUI is a first offense right?" Well, the answer may surprise many because it is no!  This new DUI is a second offense even though you were not convicted of the original DUI.

It is a second offense in this scenario because the person was previously charged with a DUI and it was amended to one of the crimes which are considered "prior offenses" under the statute (RCW 46.61.5055 (14)).

What that means is the old DUI reduced to Reckless Driving or Negligent Driving counts against them if they are convicted of this new DUI.  A new conviction will significantly increase the DUI penalties one may face (even if the original charge of DUI was amended to one of the prior offenses, if it was within 7 years from or after the date of the original arrest, it will count against them).

A prior offense means a conviction within seven years for one of the following crimes if the original charge was a DUI or Physical Control:

• A previous conviction for a DUI
• A previous conviction for Physical Control
• A previous conviction for Reckless Driving (if amended down from DUI or Physical Control)
• A previous conviction for Reckless Endangerment (if amended down from DUI or Physical Control)
• A previous conviction for Negligent Driving in the First Degree (if amended down from DUI or Physical Control)
• A completed Deferred Prosecution (even if it was dismissed after 5 years per statute)
• A previous conviction for Vehicular Homicide
• A previous conviction for Vehicular Assault
• A previous conviction for Opertaing a Commercial Motor Vehicle with THC in System
• A previous conviction for Operation of a vessel under the influence of intoxicating liquor, marijuana, or any drug (Boating Under the Influence - BUI)
• A previous conviction for Operating an Aircraft Under the Influence
• A previous conviction for Operating a Snowmobile Under the Influence
• A previous conviction for Operating any non-highway vehicle Under the Influence - Golf Cart, ATV, etc.

If your original charge was Reckless Driving, Reckless Endangerment or Negligent Driving in the in the First Degree and you were convicted, it does not count as a prior offense, only if it was originally charged as a DUI or Physical Control and amended down within or after 7 years from the date of arrest.

For example, if you were previously convicted of Reckless Driving and were then charged with a DUI, that Reckless Driving conviction does not increase sentencing penalties under the statute.

Another issue to note is that if you had a previous DUI within 7 years and were charged with a new DUI that was then amended down to Reckless Driving, Reckless Endangerment or Negligent Driving in the First Degree, that new conviction does not require any enhanced penalties but it would be considered a prior offense for any new DUI and if a Reckless Driving or Negligent Driving you would be subjected to a mandatory imposition of 6 months of Ignition Interlock. See RCW 46.20.720.

Figuring out what a prior offense is can be a difficult task and your Seattle DUI Lawyer needs to know how to apply any past convcitions or to make sure that something is not considered a prior offense when being sentenced for any DUI.
We are your Seattle DUI Attorneys and know all there is to know about DUI charges in Washington State so give us a call today to discuss your DUI or Physical Control case (425) 398-4323 or (844) DUI-GONE.
 

Read about Prior Offenses

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

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

(a) General Provisions.

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

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

each person charged with a crime.

CrRLJ 3.3 (a)(1).

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

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

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

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

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

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

substantially prejudiced in the presentation of his or her

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

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

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

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

call for trial assignment during the cure period.

CrRLJ 3.3 (g).

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

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

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

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

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

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

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

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

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

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

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

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

DUI Blog on Marketing vs. Lawyering

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