Seattle DUI attorney, Nate Webb, answers the question: "If I wasn't Driving how can I be charged with a DUI?"

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.

Seattle DUI lawyer, Nate Webb discusses: Didn't think you waived your rights during your DUI arrest, think again! Cops are trained to trick you!

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.

Seattle DUI attorney, Nate Webb, discusses the question "If I was arrested aren't I guilty?"

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!

Seattle DUI Attorney addresses those defendants who say, "I have a public pretender...I want a real attorney!"

I want a real attorney, not a public pretender!

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!

Seattle DUI Attorney, Nate Webb, addresses the DUI client who says, "I saw on the internet...."

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

 

 

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.