Somedays you are the windshield and sometimes (a lot of times) you are the bug in DUI Defense, but today it went our way!!!

A cliché but some days you are the windshield and sometimes you are the bug.  Today my client was the windshield as her DUI charge was dismissed with prejudice after an evidentiary hearing. 

Last Monday I argued to a judge in King County District Court that my client's right to have a private conversation was denied and that, additionally, due to the police department's policy of "purging" (i.e., destroying) video after 60 days it was impossible for her to have a fair trial because it would be her word about that denial of a private conversation with her attorney prior to submitting to a breath test against that of a Washington State Patrol trooper of 24 years.  After hearing testimony from my client after the Trooper, the judge took the argument under advisement, then issued a written ruling declaring, among other things, that my client's testimony lent credence to her account the trooper could overhear her conversation and that she was unable to ask the attorney the questions she needed to in order to make an informed decision.

I will tell you from experience, dismissals of DUIs don't often occur but this was the correct call by the judge.  Regardless of how someone might feel about the result, justice was served because the court essentially put the onus on the State to show the defendant wasn't prejudiced after she testified.  This is precisely why I fight the fight folks!  I have a very satisfied client today.   

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

Advertising for DUI attorneys.

With the increased use of social media, it is imperative attorneys utilize those services to ensure a web presence.  Facebook and Twitter are of course, integral to a firm's web presence but more importantly a web presence on search engines is a necessity.  There are several well-known search engines but lesser services where the client is able to further evaluate potential attorneys more closely are popping up.  Thumbtack is just one that comes to mind.  It is a service wherein a potential client can search a specific location, specific area of law and search through numerous profiles of potential attorneys for their review. 

I have utilized many avenues to display my services, but potential clients must be mindful of the skill of the attorney in the courtroom NOT their advertising prowess.  It is irrelevant to an attorney's skill level if they have the number one position on a search engine all that says is that (a) they are either great at marketing and Search Engine Optimization (SEO) or (b) they have hired someone who is.  It says nothing about their abilities as an attorney.  Yes placement helps with potential client's abilities to research, but the better mode is to compare and then ask around for personal references.  You can check out my thoughts on "Who To Hire" on my website.  That article will give you many decision making ideas when you begin your research for your next DUI attorney.  If you ever have questions about a DUI arrest, call Nate Webb at (425) 398-4323 for your always free consultation. 

Do I have to install an Ignition Interlock Device on my car if I enter into a Mental Health Deferred Prosecution?

Now many of the attorneys practicing law in Washington state may shout out, NO! Absolutely not!  However, the short answer is yes, according to DOL.

Now all Seattle DUI attorneys know that in any alcohol dependency case the petitioner is required under the applicable statute (RCW 10.05.140) to drive only a motor vehicle with a functioning ignition interlock device (IID) for a minimum period of a year.  Many of my colleagues and I believe the imposition of a IID is not required on a Mental Health or Drug problem petition for a Deferred Prosecution.

The applicable statute is as follows:

RCW 10.05.140

As a condition of granting a deferred prosecution petition, the court shall order that the petitioner shall not operate a motor vehicle upon the public highways without a valid operator's license and proof of liability insurance. The amount of liability insurance shall be established by the court at not less than that established by RCW 46.29.490. As a condition of granting a deferred prosecution petitionon any alcohol-dependency based case, the court shall also order the installation of an ignition interlock under RCW 46.20.720. The required periods of use of the interlock shall be not less than the periods provided for in RCW 46.20.720(3). As a condition of granting a deferred prosecution petition, the court may order the petitioner to make restitution and to pay costs as defined in RCW 10.01.160. To help ensure continued sobriety and reduce the likelihood of reoffense, the court may order reasonable conditions during the period of the deferred prosecution including, but not limited to, attendance at self-help recovery support groups for alcoholism or drugs, complete abstinence from alcohol and all nonprescribed mind-altering drugs, periodic urinalysis or breath analysis, and maintaining law-abiding behavior. The court may terminate the deferred prosecution program upon violation of the deferred prosecution order.

Recently, the Department of Licensing has implemented its' own "policy" to require the imposition of an IID on ANY deferred prosecution case, even if it is solely based upon Mental Health issues or Drug problems if it was originally charged as a DUI (RCW 46.61.502) or Physical Control (RCW 46.61.504).

Here is the policy:


Policy

 

Effective immediately ( January 29, 2013) all Deferred Prosecutions: Alcohol, Drug and Mental Health will require the appropriate 1, 5, or 10 year IID requirement as established under RCW 46.20.720.

RCW 46.20.720 holds:

(1)  The court may order that after a period of suspension, revocation, or denial of driving privileges, and for up to as long as the court has jurisdiction, any person convicted of any offense involving the use, consumption, or possession of alcohol while operating a motor vehicle may drive only a motor vehicle equipped with a functioning ignition interlock. The court shall establish a specific calibration setting at which the interlock will prevent the vehicle from being started. The court shall also establish the period of time for which interlock use will be required.  (2) Under RCW 46.61.5055 and subject to the exceptions listed in that statute, the court shall order any person convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to comply with the rules and requirements of the department regarding the installation and use of a functioning ignition interlock device installed on all motor vehicles operated by the person. The court shall order any person participating in a deferred prosecution program under RCW 10.05.020 for a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to have a functioning ignition interlock device installed on all motor vehicles operated by the person.

Now the statement that the court "shall order" an ignition interlock infers the court must impose the ignition interlock for any person participating in a deferred prosecution.

Now here is where it gets tricky, RCW 46.61.5055 5(a) holds:

The court shall require any person convicted of a violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance to comply with the rules and requirements of the department regarding the installation and use of a functioning ignition interlock device installed on all motor vehicles operated by the person.

In the particular case I was referencing with the DOL, the court actually did order the imposition for a IID but only for 3 months, not one year as is required for any alcohol dependency based DP under RCW 46.20.720 (3) and RCW 10.05.140.  However, the DOL's reliance upon RCW 46.20.720 I believe is misplaced RCW 10.05.060 indicates that when a person is granted a Deferred Prosecution, the entry is not a conviction under RCW 46.61.5055.

RCW 10.05.060 Procedure Upon Approval of Plan

If the report recommends treatment, the court shall examine the treatment plan. If it approves the plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost thereof, if able to do so, or arrange for the treatment, an entry shall be made upon the person's court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan shall be filed with the court. If the charge be one that an abstract of the docket showing the charge, the date of the violation for which the charge was made, and the date of petitioner's acceptance is required to be sent to the department of licensing, an abstract shall be sent, and the department of licensing shall make an entry of the charge and of the petitioner's acceptance for deferred prosecution on the department's driving record of the petitioner. The entry is not a conviction for purposes of Title 46 RCW. Upon receipt of the abstract of the docket, the department shall issue the petitioner a probationary license in accordance with RCW 46.20.355, and the petitioner's driver's license shall be on probationary status for five years from the date of the violation that gave rise to the charge. The department shall maintain the record for ten years from date of entry of the order granting deferred prosecution.

Well, where does this leave us?  The only way to address this issue is to take the Department of Licensing up on a Writ to Superior Court.  Be aware when considering a Mental Health or Drug Deferred Prosecution petition, because accordingly the DOL will require an IID for one year.

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

 

Denial of right to counsel - suppression, dismissal or neither?

Today I appeared in King County District Court to address an issue in a client's case wherein the client was denied the right to speak to an attorney.  The gist of the case involved a DUI wherein my client was arrested and after being read his constitutional rights and presented with a waiver of those rights he invoked his right to speak with an attorney.  The problem is, he was never afforded the right to speak to an attorney prior to the administration of the breath test.  In our case today the court held the proper remedy was suppression of the evidence, i.e., inadmissibility of the breath test results.

Each denial of counsel case can have different scenarios ranging from outright denial to counsel to a reasonable effort made by law enforcement to put someone in touch with counsel to a lack of reasonable effort to get in touch with counsel.  In our case, the trooper did make a reasonable effort to put my client into touch with counsel, but her efforts were in vain as both public defender agencies failed to respond to her inquiries.  These calls to the public defender’s office (attorney's on-call) went unanswered and put the trooper in a predicament not normally found.  That is, she then had to wait 45 minutes until making up her mind to present the client with the opportunity to blow or decline.  Ultimately the court held the court also had a responsibility to make counsel available as the public defender agencies were contracted through the court and had an obligation to respond.  Since no one did, the proper remedy, due to no fault of the trooper or my client was suppression of the "tainted" evidence, the breath test.  

In other scenarios, for example, when a trooper fails to provide the defendant with requested counsel the court's have discretion to dismiss a case.  See, State v. Myhre, State v. Pierce, City of Spokane v. Kruger and CrRLJ 3.1  All of these address the right to counsel.  Now, other times a defendant may be the cause of the "denial of right to counsel" by actions, such as being obstinate and not picking up the phone, fighting with officers, etc. and very likely those cases will have no action taken by the court (via dismissal or suppression).  

All that being said, it is always best to ask to speak to an attorney and not to waive your right to remain silent. On a side note, when presented with a document titled "constitutional rights" be aware the Washington State Patrol has authored this form and has purposefully made the "waiver" portion of the form ambiguous, so much that the word "waiver" is intentionally left out, even though officers testify all the time "when I presented him with waiver portion, he agreed" etc.  This is because they want you to inadvertently waive your right and the courts have held the language utilized in the form is sufficient for a proper waiver.  Here is the form's "waiver":

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.

See how the word "waiver" is conspicuously absent, that is intentional!

The best advice is to just always say as soon as you are arrested, I would like to speak with my attorney!   

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.

With this Valentine's day and three-day President's Day weekend come DUI arrests...how can you avoid one?

While President's Day isn't considered an especially important holiday to most, it does create a three-day weekend and this year it is coupled with a Friday Valentine's Day to kick it off.  Undoubtedly, the prompting of cupid's arrow and with love in their eyes couples will likely go out to a restaurant to dine and those couples will probably consume a glass or two of wine or champagne.  This leads to the decision as to whether or not the driver should make that decision to operate a motor vehicle after those couple of glasses of their favorite libation.

I know most persons will make an intelligent decision and not drive if they feel impaired but this scenario presents a precarious proposition.  Alliteration aside (ha ha) many will face a situation in which they feel that after a couple of glasses of wine it is fine to drive, and guess what, the legislature of every state in the nation agrees with you!  This is precisely why you see .08 plastered on signs all around our communities because it is legal to drink and drive.  Yes I said it, it is legal to drink and drive.  In Washington State, it is illegal to have an alcohol concentration above .08 within two hours of driving or to be under the influence of or affected by what you have consumed.  That second phrase is where decisions to drive become more tricky. 

What DUI attorneys commonly refer to as the "affected by" prong of the DUI statute (RCW 46.61.502) creates a very subjective situation for officers.  Picture this, if you have had those two glasses of wine, beer, whatever and are stopped and actually admit to drinking you will, in all likelihood, be asked to participate in field sobriety testing and if you decline will most certainly be arrested.  Then think further, you are arrested are anxious, nervous and upset and now the officer wants you to take a breath test!  Oh my good Lord, what do I do, I mean I don't feel impaired or over the .08 threshold but don't know what to do.  Let's say you are advised to refuse, now you are in a situation wherein the officer is going to elaborate in his or her report regarding the observations they made with respect to their contact with you and those observations will certainly include bloodshot, watery eyes, a flushed face, dexterity problems, maybe some balance issues and for sure slurred speech.  What, slurred speech!  But I only had two drinks!  I know, I know, but the officer will testify at a subsequent trial, "they all say two but in my opinion she/he was impaired by alcohol"!!! This scenario presents itself time and again and people are genuinely shocked that the police report alleges observations not consistent with reality.  Why, because the officer knows you had at least two (hell you admitted as much) and that they don't have any other objective evidence to support their decision to arrest, so they must elaborate.  Now I'm not saying every officer is going to just make up outright lies, but you can bet your bottom dollar there will be "observations" they made which you, the now defendant, dispute.  Why?  Because no matter what the legislature says law enforcement agencies have an unwritten rule that drinking and driving is a no-tolerance offense. 

Well, crap, what should I do you say?  The easiest and best decision in this day and age is to take a cab or don't drive after drinking anything.  I don't necessarily think there is anything wrong with drinking a beer and driving home and neither does the state legislature, but if an officer doesn't get what they want on the side of the road when they ask, despite all of it being voluntary, you are going to find yourself charged with a DUI!  So again, just take a cab or don't drink at dinner, just wait to have some champagne at home, trust me you will be in no mood for Valentine's activities with your partner if you just bailed out! 

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.

Inconsistent rulings on CDL (Commerical Driver's License) issues...

Over the past few weeks I have argued an issue that has arisen for two clients who were CDL holders.  These individuals were driving in their non-commercial motor vehicles (i.e. personal vehicles) and arrested for suspicion of DUI.  Now both of these individuals were presented with the same form, required by the Washington State Patrol in any DUI investigation, that form is called the Implied Consent Warnings (ICWs) for Breath.  Essentially when you obtain a driver's license in Washington it is implied you will submit to a test of your breath if stopped for suspicion of DUI and the same applies for CDL holders.  The issues in these two cases was that neither of the individuals arrested were informed there would be any impact to their CDL whether they submitted to a test or refused.  The ICWs inform any driver arrested for DUI that they face at least a 90 days suspension of their personal driver's license if their blood or breath test is over .08 and that if they refuse they face at least a one year driver's license suspension. 

In the cases I'm discussing the ICWs have an additional piece of language directly related to CDL holders which informs them they face a possible suspension of their CDL even if they are not driving a commercial motor vehicle.  Neither of my clients were read this additional portion when presented with the ICWs.  To their credit during cross examination, both WSP Troopers admitted that they either forgot to read the additional language related to CDL holders or that they didn't know they had to read it.  Surprisingly the first time I argued this to a King County District Court judge, that particular judge found no error since the driver was told he would lose his license for at least a year if he refused.  If a CDL holder is convicted of a DUI, even in their non-commercial motor vehicle, they face a minimum one year CDL suspension. 

This particular judge said that by warning my client of the effects of a refusal on his personal license (that is, at least a one year suspension) that somehow satisfied the warnings regarding his CDL and he was not prejudiced!  What!!!! 

I again argued this same issue to a separate King County District Court judge who did find it to be an issue and suppressed the breath test results.  It is amazing the inconsistency we often find when judges at the same level (District Court in this case) reach differing opinions on obvious violations of Due Process which prejudice drivers, in this case, specifically CDL drivers. 

The moral of the story is, if at first you don't succeed, try a different judge!

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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.

Overzealous prosecutors v. ethical prosecutors...

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

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

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

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

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

If you have been arrested for a DUI in Seattle or anywhere in Washington State, give me a call (425) 398-4323.  This is what I do and can help you!

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.