Seattle DUI Attorney, Nate Webb, represented a client in Upper Kittitas County District Court (Cle Elum) and acquired a Not Guilty verdict from a jury on November 13, 2014. State of Washington versus C.H.
Facts: The trooper alleged my client was speeding well in excess of the posted limit, had bloodshot, watery eyes, slurred speech, the odor of alcohol, continually swayed throughout their contact, had continually unsteady balance, failed to follow simple directions, he also alleged the client failed three field sobriety tests, took a portable breath test and was deceptive while doing it, and refused a breath test after arrest at the station. Further, the trooper testified that there were at least three open containers in the vehicle.
The State presented two witnesses, one was the trooper who made the above allegations and the second was a toxicologist from the Washington State Patrol Toxicology Lab. Mr. Webb was able to succesfully impeach the trooper's testimony via the State's own witness, the toxicologist. The trooper, an apparent 16 year veteran of the Washington State Patrol, testified as to the proper administration of the field sobriety tests pursuant to the National Highway Traffic Safety Administration standards and protocols only to be contradicted by the toxicologist after Mr. Webb challenged the trooper's conclusions.
The jury returned a verdict of Not Guilty.
State v. C.H. (Cle Elum - Upper Kittitas County District Court - November 2014).
The Washington State Patrol implements "new" breath test machines across the state, problem is they aren't "new!"
Today an article was published by a local news agency which discussed the implementation of the new breath test machine in Washington state for sampling of breath when persons have been arrested for DUI. It is called the Draeger Alcotest 9510 and is set to replace the DataMaster and DataMaster CDM.
The news article did seem to omit a very interesting fact however; this "new" machine has actually been sitting at the Washington State Patrol's impaired driving unit section (Roanoke Station) for approximately 4 years.
Interestingly, I recently cross-examined one of the Washington State Patrol breath test technicians during a jury trial and we openly discussed the fact the Washington State Patrol had 86 Draeger Alcotest 9510s just sitting around, in fact, she admitted they had been sitting around for approximately 4 years and that it, the WSP, was waiting until it acquired a total of 200 machines before implementing them statewide. That conversation was less than one week ago, on the record, under oath in King County District Court (West Division), then lo' and behold we have an article published which informs the public 83 of the 86 machines are being implemented.
Either this breath test technician lied under penalty of perjury or she was poorly uninformed about the breath test section's plans for implementation of the Draeger. Regardless, the fact of the matter remains that these "new" machines are not new by any stretch of the imagination and since they have been literally sitting around not being used on a daily basis, I personally am curious to know how long the intricate interior workings of the machine have been maintained and whether there has been deterioration.
Only time will tell how these "new" machines hold up, but rest assured, your Seattle DUI attorneys at the Webb Law Firm will always challenge the government's evidence because it continues to use old methods of testing based upon outdated testing principles.
If you or someone you know has been arrested/charged with a Washington State DUI, contact us today for immediate DUI help (425) 398-4323 or 1-844-DUI-GONE.
About the author: In his 10 plus years of practice, Seattle DUI Attorney, Nate Webb, has been repeatedly named a Super Lawyer Rising Star by Washington Law and Politics Magazine and a Top Attorney for DUI Defense by Seattle Metropolitan Magazine and has numerous Not Guilty DUI verdicts and dismissals under his belt.
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.
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.
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!
On too many occasions to note I have heard the expression, "I have a public pretender..." along with some sort of complaint about how they aren't doing anything and that the defendant wants a "real attorney." I will preface this blog with this note, I was never a public defender nor a prosecutor but I can tell you public defenders work extremely hard for some extremely difficult clients, many of whom believe they are entitled to one attorney working solely on their case even though they aren't paying anything for that representation.
To answer the reference of wanting a "real attorney," I've got news for those defendants, your public defender is very much a real attorney, they are extremely experienced in all facets of criminal law and have very likely done more jury trials than most private attorneys. I have too often seen brand new attorneys with no experience (especially those with no trial experience) attempt to represent their clients in very complex DUI cases and who are clearly inept get treated with more respect than seasoned public defenders and that is simply a shame.
Public defenders work tirelessly for their clients with little or no gratitude in return. I stand up for their work because every time I'm in court I see how difficult their jobs are and the scenarios they have to endure.
Many private attorneys don't have near the experience in DUIs as the so called "public pretenders" because many private attorneys don't go to jury trial. If your private attorney has not done at least 20 jury trials, they simply can't compete with a public defender. Many public defenders do dozens upon dozens of trials each year, some more than that!
The main difference between a private attorney and a public defender, at least in the DUI context, is that a private attorney gets to choose his or her case and also maintain a manageable caseload. A public defender is given anything that is thrown their way and must handle hundreds of cases at once.
The next time a defendant is overheard saying "I want a real attorney" when referencing a public defender, keep in mind the person spouting off is probably a repeat offender who has no regard for anyone but themselves. Keep it up public defenders, you are doing great work!
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
