Mistrial after empanelled jury results in reduced charge for my client...

Earilier this month I advised a client to take his case to trial after his Seattle DUI Arrest.

Initially, my client was reluctant to proceed because the client didn't see any issues on which we could prevail at trial.  As I always do in this situation, i.e., wherein the State is not willing to offer any type of resolution for my client, I recommend trial because you never know what will happen during the course of a jury trial.  Well, after we empanelled a jury of six good citizens, did our opening statements and began direct examination of the arresting officer, a mistrial was declared.  A mistrial means that the current jury trial is stopped, but that the State may still try the case again, no double jeaopardy issues arise in this scenario.

However, as a result of the mistrial, the State offered my client a fair resolution and he accepted.  The point of this story being that if you have an attorney unwillng to push for you, you will never have the opportunity for a better resolution of your case.  My client had no criminal history whatsover so this was a win in our minds.

If you have a Seattle DUI Arrest, don't hesitate to call one of Seattle's Best DUI Attorneys, Nate Webb!

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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.

Not Guilty verdict despite deceitful, spiteful, overzealous prosecutor!! Victory and justice!

Yesterday a King County Jury returned a verdict of Not Guilty (acquittal) for my client who was charged with Hit and Run Attended Vehicle after a two day trial.

 

Not to toot my own horn, but I was fairly confident the jurors would see the travesty of justice being presented to them by a very spiteful, bitter, prideful supervising prosecutor.  Both investigating troopers concluded no crime had occurred and that my client had no knowledge of the alleged collision because it was ever so slight contact.  The prosecutor's office initially offered my client an offer to plea to a lesser offense, however, that offer was still a criminal offense.  My client felt he had no culpability and I agreed.  Just before the trial began, both troopers reiterated to me their displeasure at being called as witnesses on a case they basically called ridiculous.  I told the prosecutor responsible for the trial (nice new attorney only doing her job at the direction of her supervisor) she needed to speak with her supervisor about the troopers' position and to her credit she did.  Unfortunately, that supervisor has such an ego, such a terrible disposition, such contempt for defense attorneys she ignored the facts, the opinions of the troopers and essentially, in my opinion. violated the rules of professional conduct (by knowingly proceeding with the prosecution of a case wherein the merits did not warrant a conviction).  

 

After we disclosed the troopers' opinions to the prosecutor, instead of taking appropriate actions and dismissing, she filed several motions to try and prevent the troopers from testifying about their opinions!  Yes, the prosecutor did not want the troopers to be able to present the truth to the jury!  Why?  What was the purpose of proceeding?  It was complete spite, immaturity and blatant disregard for justice!  I am wholly satisfied with the outcome, it was justice!  My client was facing a criminal conviction, a criminal record for something the state's own witnesses (troopers) believed was not a crime.  This was the act of an overzealous prosecutor and the state got what they deserved, a NOT GUILTY!  

 

This case is exactly why I do what I do, when a prosecutor takes it upon themselves to pursue cases without merit, you need someone to stand up for you and I am always ready!  I would try this case again in a heartbeat. 

 

BTW: We had also attempted to compromise this case with the alleged victim who at first seemed reasonable but then sought "pain and suffering" and additional repairs to his vehicle which were not caused by the collision. Essentially these two vehicles barely scraped each other and, despite the alleged victim's testimony he was sideswiped, the investigating trooper (who was specially trained in accident reconstruction) testified that was absolutely not true, that the evidence showed the alleged victim sped up in an attempt to cut my client's vehicle out merging into a lane.

 

Furthermore, she informed the alleged victim she was only going to issue a civil infraction.  Upon hearing that the alleged victim voiced his displeasure, called her supervisor and threatened to file a complaint with the state representative.  The supervising trooper reluctantly relented wholeheartedly expecting the charges would be declined by the prosecutors office. Again, both troopers told the prosecutor they would not support this charge at trial and they proceeded anyway, it was the most ridiculous, unnecessary trial ever.  In my career I have never encountered a more bitter, unreasonable, spiteful, vindictive, unpleasant prosecutor (not the prosecutor who was forced to take the case to trial, but the immediate supervisor) and I'm glad the jury saw the BS. 

 

This prosecutor's tactic is to speak with an attorney about a case in an effort to, supposedly reach a resolution, when in reality her ulterior motive is to use all information you disclose (that is, weaknesses in the state's case) against your client.  It is a disingenuous approach to seeking "justice."  In my opinion this prosecutor does not possess the disposition, maturity, or temperament to hold the position in which she is employed.  She is seconds away from a bar complaint and violation of the rules of professional conduct.  Yes, overzealous, unscrupulous prosecutors are out there and this one is a prime example.  Shame on the State!  When people ask me, "why do you defend guilty people!" I point out cases as this!  Without people like me and my colleagues our government would be able to steamroll defendants and that is not going to happen on my watch.

It is not the government's position to win at all costs, despite the evidence, that is not justice! Pursuing cases despite the evidence in an attempt to garner a conviction is not justice, it is the act of an overzealous prosecutor and that approach always comes back to bite them in the (rear) end!

 

State v. J.T. - Case no: 513009093 (King County District Court)

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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

 

Negligent driving conviction with a prior means 6 more months of IID (no matter if the 2nd was originally a DUI)!

Recently the legislature enacted changes to many DUI laws in our state and I wanted to note one in particular in which there is much confusion, Negligent Driving in the First Degree.  This statute holds that, among other things, anyone who is convicted of Negligent Driving in the First Degree with a "prior" must install an ignition interlock on their vehicle for an additional 6 months (see subsection (4) below):

  (1)(a) A person is guilty of negligent driving in the first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property, and exhibits the effects of having consumed liquor or marijuana or any drug or exhibits the effects of having inhaled or ingested any chemical, whether or not a legal substance, for its intoxicating or hallucinatory effects.

     (b) It is an affirmative defense to negligent driving in the first degree by means of exhibiting the effects of having consumed any drug that must be proved by the defendant by a preponderance of the evidence, that the driver has a valid prescription for the drug consumed, and has been consuming it according to the prescription directions and warnings.

     (c) Negligent driving in the first degree is a misdemeanor.

     (2) For the purposes of this section:

     (a) "Negligent" means the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.

     (b) "Exhibiting the effects of having consumed liquor, marijuana, or any drug" means that a person has the odor of liquor, marijuana, or any drug on his or her breath, or that by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed liquor, marijuana, or any drug, and either:

     (i) Is in possession of or in close proximity to a container that has or recently had liquor, marijuana, or any drug in it; or

     (ii) Is shown by other evidence to have recently consumed liquor, marijuana, or any drug.

     (c) "Exhibiting the effects of having inhaled or ingested any chemical, whether or not a legal substance, for its intoxicating or hallucinatory effects" means that a person by speech, manner, appearance, behavior, or lack of coordination or otherwise exhibits that he or she has inhaled or ingested a chemical and either:

     (i) Is in possession of the canister or container from which the chemical came; or

     (ii) Is shown by other evidence to have recently inhaled or ingested a chemical for its intoxicating or hallucinatory effects.

     (3) Any act prohibited by this section that also constitutes a crime under any other law of this state may be the basis of prosecution under such other law notwithstanding that it may also be the basis for prosecution under this section.

     (4) A person convicted of negligent driving in the first degree who has one or more prior offenses as defined in RCW 46.61.5055(14) within seven years shall be required, under RCW 46.20.720, to install an ignition interlock device on all vehicles operated by the person.

This subsection (4) now requires drivers who are convicted of a new Negligent Driving in the First Degree to install an ignition interlock device (for 6 months).  What many DUI attorneys have been mistakenly informing their clients is that only if the second/subsequent DUI is reduced to Neg 1 will they be required to install an IID.  Well, unfortunately, that is false information.  The Department of Licensing (DOL) will require anyone who has a prior offense as outlined in RCW 46.61.5055 who is convicted of a new Neg 1, whether it was originally charged as a DUI or Physical Control, to install the IID.  That means if someone is arrested for Neg 1 for say a .03 BAC, has a prior offense and pleads guilty, they will require an IID for 6 additional months.  This is the DOL's position!

Now, if a person has a prior, then picks up a new DUI which is reduced to Reckless Driving, they will have to have an IID for 6 additional months, but not if they were only charged with Reckless Driving (i.e., not amended down from DUI or Physical Control).  The lesson is, if you have a new Neg 1, even if it is not amended down, you are facing an additional 6 months of IID, regardless of any breath test! 

If you have been arrested for a DUI, Physical Control, Negligent Driving in the First Degree, Reckless Driving or other offense, call me, Nate Webb, your Seattle DUI attorney for a free consultation. (425) 398-4323

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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

Washington Legislature ready to enact nations strictest DUI laws...

King5.com reported today:

OLYMPIA, Wash. -- Drunk driving laws are changing in Washington state after two high-profile, deadly crashes involving suspected drunk drivers in King County.

Governor Jay Inslee, D-Washington, announced a new package of driving under the influence laws has bipartisan support in Olympia.
“Every accident and every death we see involving a DUI could have been prevented,” Inslee said in a release. “People who choose to get behind the wheel must know that we are done giving them a free pass.”

The proposed legislation would result in several penalty changes.

Police would have to arrest and take the driver into custody after a first DUI offense, according to the Governor’s office. After a second offense, drivers would have to choose between treatment or a mandatory six months in jail.

Drivers convicted of a third DUI would get at least a one-year prison sentence. In addition, a three-time offender will be issues a new driver's license that would prevent them from buying alcohol for 10 years.

Frank Blair, whose daughter was killed by a DUI driver in 2010, said he was pleased with the proposed laws.
"It sends a message, we have to stop this, it's not ok," said Blair.

Judy and Dennis Schulte were run over March 25 by a suspected drunk driver, Mark Mullan, in Northeast Seattle. Mullan is also accused of seriously injuring the Schulte’s daughter and infant granddaughter. He had several prior DUI convictions.

Morgan Williams was killed April 4 by an alleged drunk driver going the wrong way on Highway 520. The driver in that crash, Michael Robertson, was awaiting trial on another DUI charge.

Nate Webb says: These would be the strictest DUI laws in the nation! No one condones drunk driving, but six months in jail or treatment (that is a change from 30 or 45 days to 180 days)! Also, booking everyone arrested for a first offense DUI is ridiculous. I have many clients who are charged yet their cases are never filed, or believe it or not, they are subsequently found not guilty or have their cases dismissed, this is draconian. What the legislature is saying is that even though there is .08 threshold, and it is actually not illegal to have a couple of drinks and drive, if some cop wants to book you regardless of your breath test you are SOL. My colleagues can attest to having clients charged with DUI even when their breath tests are below the legal limit! So even though you were found not guilty or had the case dismissed, you were placed in jail for no good reason. Is that due process, I think not.  This is simply guilty until proven innocent.  Remember, judges, cops, legislators, Supreme Court Justices have all been arrested for DUI in this state and not all were convicted, so is this proposal really justified! 

Ignition Interlock Devices

Seattle DUI Attorney, Nate Webb, explains Ignition Interlock Devices

Ignition Interlock Device - those sound like a pretty bad group of words and most of us want to avoid the restriction when possible.  IIDs, as we refer to them, are commonplace in the area of Washington DUI Defense and are typically imposed by judges at arraignment as a condition of release.  Basically it is a "blow and go" device which requires a breath sample to start your vehicle and periodically (yes while driving) require a sample during operation of the motor vehicle (is this a liability? I think so - apparently the legislature doesn't think it is safe for persons to talk on a cellphone while driving but require persons to submit to a sample of their breath while driving, yes this is true!).  All of these devices now require a camera to ensure the person required to submit a sample is not having someone else do the sampling.

These IIDs are required for drivers convicted of a DUI or Physical Control (1 year on a first offense and up as convictions increase). Also, if an individual wishes to drive during any period of suspension based upon a DUI arrest, they must install a functioning IID on any vehicle they drive.

This Restricted Driver's License requires both the IID and SR-22 Insurance. In addition to mandatory impositions of IIDs upon DUI convictions, if you are charged with a subsequent DUI and/or Physical Control offense and it is reduced/amended to Reckless Driving or Negligent Driving in the First Degree, you will be required to operate a motor vehicle only with a functioning ignition interlock device for an additional 6 months.  A person convicted of DUI or Physical Control must also have an IID for an additional 6 months if they had a passenger under the age of 16 with them.

See the following statutes and codes for further information regarding IIDs.

RCW 46.04.215 Ignition interlock device.
RCW 46.20.720 Drivers convicted of alcohol offenses.
RCW 46.20.740 Notation on driving record — Verification of interlock — Penalty.
RCW 46.20.745 Ignition interlock device revolving account program — Pilot program.
RCW 46.20.750 Circumventing ignition interlock — Penalty.
RCW 46.20.385 Ignition interlock driver's license — Application — Eligibility — Cancellation — Costs — Rules.
RCW 43.43.395 Ignition interlock devices — Standards — Compliance.
WAC 204-50-110 Mandatory requirements for an ignition interlock device.

If you have any questions or concerns regarding an Ignition Interlock Device, please call Nate Webb at (425) 398-4323.

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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

DUI - Physical Control - Can you be arrested even if the officer didn't see you drive?

Did you know you can be arrested for DUI even if the officer failed to witness you driving.  Under the lesser included offense of Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol and/or Drugs (including marijuana).  This statute is the Physical Control Law -  view it here.

Essentially an officer might witness a person passed out behind the wheel or maybe they ran off the road and they are contacted while still seated in the driver's seat.  If you were readily able to control the motor vehicle you can be charged.  There is, thankfully, an affirmative defense, which I have asserted on behalf of many of my clients.  It is called the safely off the roadway defense.  Basically it is up to the trier of fact (jury or judge) to determine whether your vehicle, at the time of contact with the officer was "safely off the roadway."  The legislature wanted to enable persons who began to drive only to realize they were actually impaired an option.  Either they could continue driving or pull safely off the roadway and sleep it off, call a cab, walk, etc.  Therefore, if you were contacted while seated inside the vehicle and the officer did not witness you driving, you have a built in defense. 

RCW 46.61.504 - Physical Control of a Vehicle Under the Influence

(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.

     (2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. 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.

     (3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after being in such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

     (b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after being in control of the vehicle. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense.

     (4)(a) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(c) or (d) of this section.

     (b) Analyses of blood samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in control of the vehicle, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1)(c) or (d) of this section.

     (5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor.

     (6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if:

     (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or

     (b) The person has ever previously been convicted of:

     (i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a);

     (ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b);

     (iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or

     (iv) A violation of this subsection (6) or RCW 46.61.502(6).

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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. 

DUI Checkpoint in West Virginia - man groped!

I recently blogged on one Washington legislator's attempt to re-address DUI Checkpoints in Washington State.  The Supreme Court of Washington had already addressed this proposition in State v. Messiani, wherein the court held such DUI Checkpoints were too invasive given our extensive securities and right to privacy under the Fourth Amendment and Washington State Constitution's Article I Section 7 (where there is more privacy afforded individuals in Washington).

I always find it interesting that other state allow such checkpoints when all they do is give reason to cops to unlawfully search you and your vehicle, whether you have been drinking or not.  Take for example what happened to a West Virginia resident.  He was stopped with his wife at a "DUI Checkpoint" and asked to exit the vehicle.  The officer never even asked him if he had been drinking, according to the lawsuit filed by the gentlemen.  He alleges the officer searched him for weapons after he informed the officer he was legally carrying a firearm, permit and all.  He says the officer groped his personal region (aka testicles) after the gun had been retrieved.  Now, why if this man had not been asked if he had been drinking was he subject to exiting his vehicle and a search?  There is no reason other than intrusive governmental authority.  See the details here: Lawsuit claims man groped at DUI checkpoint. 

You can also search the vast videos on youtube of persons legally exercising their rights at these DUI checkpoints only to face governmental abuse.  In a word DUI checkpoints are a "bad" idea!  Yes, you may find a drunk or two, but you will far exceed the benefits of these checkpoints by offending and invading the privacy of countless citizens who have done nothing wrong.

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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.