So whats a pretextual stop?  To put it simply its when a police officer stops a vehicle for some kind of minor infraction with the sole purpose of the stop not being the actual infraction committed, but to investigate possible criminal activity.  You see lots of stops like this in DUI cases, especially here in Seattle, Washington, where we have lots of State patrol troopers traveling up and down I5 at night looking for people to pull over and investigate for DUI.

Recently the Court of Appeals Division III in Washington ruled on a case involving a pretextual stop.  In this case a patrol officer followed Gilbert Chacon Arreola’s blue Chevy for over a half mile because it fit the description of a car reportedly driven by a drunk driver.  While watching for signs of impaired driving, the officer noticed an illegally modified muffler, and decided to initiate a stop based on that and nothing more.  In other words the sole basis of the stop being to investigate for a possible DUI.

The Court of Appeals held this was an unconstitutional stop because the Officer’s primary reason for the stop was not to cite the alleged infraction for a modified muffler, but because the officer admitted his primary purpose was to investigate for DUI.  And despite following the vehicle for approximately 45 seconds, no observations indicative of impairment was observed, and therefore this stop was without authority of law.

I meet with many people who tell me the same thing.  They were driving home on I5 or I90 or 520 and they got pulled over for not signaling, for following a car too closely, or some other minor infraction.  When they get contacted by the officer, the officer doesn’t talk to them about the reason for the stop and explain why they are being pulled over, but immediately asks if they have been drinking and if they have then they begin a DUI investigation.  In my opinion this is unlawful and these kinds of unlawful seizures should be challenged.

If you have recently been contacted by law enforcement and you were arrested after allegedly committing a minor traffic infraction contact my officer immediately to ensure your constitutional rights are protected.

Generally, most people who get arrested for a DUI initially get pulled over for a minor traffic infraction.  In order for a police officer to have a sufficient basis to ask the driver to exit the vehicle and begin an investigation for DUI they have to have a reason for doing so.  And no, simply admitting to consuming alcohol, and having an odor is not enough.

A warrantless search of constitutionally protected areas is presumed unreasonable absent proof that one of the few well-established exceptions to the warrant requirement applies State v. Ladson, 138 Wash.2d at 349. These exceptions fall into several categories, including consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view, and Terry investigative stops. Ladson, 138 Wn.2d at 349. The State bears the burden of proving a warrantless search falls within one of the exceptions when a traffic stop becomes a DUI investigation.

In the absence of probable cause to arrest, police may conduct a brief investigative stop known as a Terry stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To satisfy the requirements of the Fourth Amendment and article I, section 7 of the Washington constitution, a Terry stop must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Mendez, 137 Wn.2d at 223 (quoting Terry, 392 U.S. at 21). In evaluating investigative stops, the courts must determine: (1) was the initial interference with the suspect’s freedom of movement justified at its inception? (2) Was it reasonably related in scope to the circumstances, which justified the interference in the first place? Terry, at 392 U.S. at 19-20. Without sufficient justification, police officers may not use routine traffic stops as a basis for generalized, investigative detentions or searches. State v. Henry, 80 Wn. App. 544, 553, 910 P.2d 1290 (1995). The reasonableness of an investigative detention is judged by the purpose of the investigative detention, the amount of physical intrusion, and the length of the investigative detention. State v. Williams, 102 Wn.2d 733, 739-40, 689 P.2d 1065 (1984). If a seizure is unlawful, the result of a consequent search is inadmissible. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). When a police officer uses his/her patrol vehicle’s emergency lights to detain a motor vehicle, a seizure has occurred. State v. DeArman, 54 Wn. App. 621, 624, 774 P.2d 1247 (1989).

The investigatory stop must not exceed the duration and intensity necessary to confirm or dispel the officer’s suspicions; if the stop exceeds these limitations, it can be justified only by showing probable cause. State v. Mitchell, 80 Wn. App. 143, 906 P.2d 1013 (1995). Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person’s license, insurance identification card, and vehicle’s registration, and complete and issue a notice of traffic infraction. State v. Lemus, 103 Wn. App. 94 (2000).

A stop for a traffic infraction can be extended only when an officer has articulable facts from which the officer could reasonably suspect criminal activity and the continued detention must be limited to the length of time needed to investigate the increasingly suspicious circumstances. Wa. Const, art. 1, § 7.; State v. Lemus, 103 Wn. App. 94 (2000) (Emphasis added). The continued detention must be limited to the length of time needed to investigate the increasingly suspicious circumstances. State v. Gonzales, 46 Wn. App. 388, 394, 731 P.2d 1101 (1986). Articulable suspicion is a substantial possibility that criminal conduct has occurred or is about to occur. State v. Kennedy, 107 Wn.2d 1 (1986).

For example, in State v. Tijerina, the Court of Appeals in Division 3 held that the officer did not have any “reasonable suspicion” of criminal activity sufficient to support his continued detention of the motorist after he had decided not to issue a citation. 61 Wash.App. 626 (1991). In Tijerina, the defendant and passenger were pulled over after an officer observed their vehicle cross over the fog line. Id. When the defendant opened the glove box to obtain his registration, the officer noticed several small bars of soap of the kind commonly provided at motels. Id. After checking the defendant’s driver’s license and registration, the officer decided not to issue a citation. Id. The officer then asked the defendant if he had any drugs and asked to search the trunk of the car. Id. The officer opened the trunk and discovered cocaine wrapped in a newspaper next to a case of empty beer bottles. Id.

Generally, when it comes to DUI arrests, Seattle police officers need to make several observations of the driver in order to begin a DUI investigation. In my opinion, the officer needs to notice slurred speech, an odor of alcohol, bloodshot watery eyes, difficulty answering or understanding questions, and finger dexterity issues or coordination problems. If any of those observations are absent then an officer shouldn’t be able to ask a driver to exit the vehicle to conduct an investigation for DUI.

If you have been contacted by a police officer and you don’t believe the officer had a sufficient basis to ask you to exit your vehicle and conduct a DUI investigation, contact my office immediately to set up a free 60-minute consultation.

With Sea Fair weekend around the corner there are going to be many DUI patrols around the Seattle area, and King County. The best advice is not to have a drop of alcohol prior to driving. However if you have been drinking and you get pulled over by law enforcement, its important to remember a few things when investigated for possible DUI. Also if you have had a drop of alcohol and you get pulled over, chances are you’re going to get arrested for a DUI regardless of what the police officer tells you. So do yourself and your DUI Attorney a favor and follow these simple rules

1. Be polite with law enforcement
2. Provide your drivers license, proof of car insurance, and vehicle registration
3. Respectfully decline all field sobriety tests
4. Respectfully decline the portable breath test
5. Ask to speak with a DUI Attorney immediately after being placed under arrest

Please keep in mind the best practice is to have a designated driver. However if you do get contacted and you have been drinking, just follow the above mentioned rules and you’re constitutional rights will be protected.

One of the most important tools every Seattle DUI Lawyer should have at their disposal is the “public disclosure request.” In a DUI case it is important to gather as much evidence as possible in order to prepare a proper and thorough defense. Typically most Prosecutors will hand over a DUI police report, the breath test results, and maybe a CAD report (timeline of events from Police officer). However in many instances there is much more evidence that can be gathered, and the experienced DUI Attorney will be able to find it through different methods of investigation, the use of subpoena’s, and of course the public disclosure request.

So what is a public disclosure request. RCW 42.56 titled the Public Record Disclosure Act states a public record is, “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristic.”

A writing is described as any “means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated”

So what does this mean? Basically in any DUI case a person can request certain “writings” under the Public Disclosure Act, without the need for a subpoena, and it must be produced by the particular agency that has it.

In every DUI case, Leyba Defense PLLC routinely asks for certain items under this act. These include audio/video recordings, additional police reports made by the arresting officer, additional documents from the State Toxicologist concerning our clients breath/blood test results, all booking room photos and/or recordings. As I stated before these things generally are not produced by the Prosecution, and unless they are requested, nobody will ever know about them.

Probably the most important item to obtain under this act is any and all audio/video recordings. In this day and age most law enforcement agencies have in car police video cameras, and video cameras in the breath testing room. Although police officers generally write a report on why an individual was arrested for a DUI, sometimes these reports are biased, and in a few cases, just flat out incorrect. An audio/video recording of the incident is gold in the sense that it will show exactly why a person was contacted by law enforcement, how they were acting during the investigation, and whether the arresting officer properly administered the field sobriety tests and breath tests.

Here are two recent examples of how we used the Public Disclosure Act to our clients benefit. In one DUI case recently we made a request for all audio/video recordings of a client while they were being processed at the police precinct. We received a video of the police officer administering the breath test to our client. Now even though in the police report the arresting officer stated “the breath test was administered properly and all protocols were followed.” This video showed the test was not administered correctly and therefore it was not admissible. As a result of this investigation an excellent plea deal was worked out, and a DUI conviction was avoided.

The other example occurred when we requested the last 25 DUI arrest reports from a particular officer. When we received these reports it was clear the arresting officer was just copying and pasting the same observations, and performance on the field sobriety test for every person they arrested. This officer was not properly documenting every cases individually, but just writing the same thing in every report. As a result of this we were able to impeach the officers credibility during a pretrial motion hearing, and shortly thereafter a dismissal and reduction in charges was offered by the Prosecutor.

Obviously things like this dont happen in every DUI case, but if all investigation is not exhausted completely a proper and complete defense is not being put forward. And in the end, the client will suffer not the attorney. At Leyba Defense PLLC we will explore and exhaust all avenues for investigation, and will always put on the best defense possible. If you have been arrested for a DUI in Seattle or by any other law enforcement agency in Western Washington, please contact us immediately to set up a free 60 minute consultation that is completely confidential.

A couple of days ago a client called me really upset.  This particular client has a very good job, she is well educated, has a nice career with Microsoft, and she has never been in trouble before.  However she has been charged with a DUI in King County that can completely derail everything she has worked so hard for.  She hasn’t told anyone of this situation except her fiance and of course me, her attorney.  She is incredibly embarrassed by this situation, she is nervous and worried about what will happen if her family, friends, and employer find out about it.  She has never been in trouble before, not even gotten a speeding ticket.  Its a really difficult situation for her, as it is for anyone who has been charged with a DUI in King County.

So she called me on my personal cell phone and she sounded really upset.  I was worried something was wrong, maybe something had happened to her or her family.  She then told me that she was out of town for a week or so, and between that time and this phone call she had gotten approximately 20 letters and/or brochures from other attorneys claiming to be a DUI attorney, and offering their legal services (since that phone call she has been getting roughly 2-3 letters a day)

Now this is nothing a new, since I became a lawyer, I have known of 1 law firm that did this.  And this particular firm doesn’t have a good reputation in the community, and I personally think the owner is not a good guy and gives attorneys a bad name.  But thats another topic.  So I was quite surprised when she said she had gotten over 20 letters in the course of a week from 20 different law firms.

After I was able to tell her to ignore these letters and that I consider these attorneys to be the ambulance chasers of criminal defense.  In other words there work is so bad, that former clients never refer them business, and they have to dupe innocent people by sending these arraignment letters and solicit their crappy law firm.  Much like a personal injury attorney follows an ambulance and then asked the injured party if they slipped and fell.  That is what these guys do.  It kind of started to irritate me these guys get away with this.

The Rules of Professional Conduct govern a lawyers behavior and sets certain rules we are supposed to follow.  One thing I never understood is how these arraignment letter attorneys are not in violation of RPC 7.3.  RPC 7.3 states a lawyer shall not, directly, or through a third person, by in person, live telephone, or real time electronic contact solidity professional employment from a prospective client when a significant motive for the lawyers doing so is the lawyers pecuniary gain.

Im not quite how these guys get around this rule.  I guess the State Bar Association feels the wording in these letters is not soliciting business, but some kind of a heads up a criminal charge has been filed, and oh by the way I happen to be a DUI attorney type thing.  I don’t know, and I used to not really care.  But when they are start sending letters to my clients, people who have trusted me to help them in their time of need.  It gets me a little upset that they have to deal with these jerkoffs.

Being charged with a criminal offense is embarrassing enough.  Coming home from a hard day of work and finding 2-3 letters a day reminding you of this incident and soliciting your business is ridiculous.  Im sorry there are people out there who do this. Im sorry there are attorneys out there claiming to be DUI lawyers who don’t care about the privacy rights of my clients and the many other people facing a DUI charge.  And Im sorry these attorneys only view these people as dollar signs, and have no real interest in legitimately caring for them and fighting on their behalf.

I’ve been following this case for quite some time.  When the case first happened in Seattle Municipal Court I was actually present and witnessed former Seattle Municipal Court Judge Charles’s actions.  Since then, this particular case has had a long journey, and a ruling was finally issued from the State Supreme Court last week.  Unfortunately, I think it’s a bad ruling in (2) ways.  First, it sets an unfair precedent that individuals who are in custody are treated differently if it’s a misdemeanor versus a felony; Secondly, it’s going to place an undue financial burden on the taxpayers of this state.

Here is a little background on the case.  Basically, this guy Harris was charged with a couple of crimes in Seattle Municipal Court.  At the time of his arraignment, the Court set bail and imposed a condition of home detention (don’t get me started on this, in my opinion, it’s a clear violation of CrRLJ 3.2).  Harris posted the bail and got the home detention set up.  He ended up serving 5 months on home detention at his own cost and then plead guilty.  Unfortunately for him, former Judge Charles did not give him credit for any of the pre-trial confinement he was on and sentenced him to additional jail.

His Attorney then filed a writ in King County Superior Court and argued this was a violation of his equal protection because felons on pretrial conditions of EHM receive credit towards their sentence.  The Superior Court agreed and sent the order back to SMC.  The City of Seattle then appealed that decision to the Court of Appeals, which reversed the order. Afterwards, the Supreme Court granted review of this case.  And long story short, they agreed with the Court of Appeals.

The interesting thing about this opinion is the Supreme Court finds that people accused of misdemeanors are not similarly situated with people accused of felonies (who can receive jail credit for pretrial home detention).  The Court talks about how giving a misdemeanor Court pretrial EHM can affect a Judge’s discretion at sentencing and tie their hands since misdemeanor maximum sentences are not very long.  They go on to cite other reasons, but that’s the gist of it.  And in my opinion, it is complete B.S.  If you’re interested in reading the entire opinion, here is it.  Harris v. Charles

The other issue I have with this decision is what happens now.  Are more courts going to require people to do EHM prior to trial in lieu of less restrictive options just because they know the person will essentially be punished twice?  An article recently came out in the Seattle Times stating that the Seattle Municipal Court is going to push for more defendants to be on pretrial EHM in lieu of jail.  Now this seems like a fine idea. I mean, anyone would rather be out of custody than in custody.  But the cost of EHM is so ridiculously high that a person is going to pay a substantial amount of money for this option.  In addition to that, what if they get found guilty and they are coming off of a 1-year stint on EHM?  Is a Judge going to sentence them to an additional one year in custody, and we taxpayers are going to have to pay for them to stay in jail.  Last time I checked, the cost of housing a person in the King County Jail was around $125 a day.  Guess who gets stuck with that cost? We, as taxpayers, do.

Remember, if you have an upcoming Seattle DUI arraignment, please contact my office immediately.  Now more than ever it’s important you have an attorney present to argue against these unconstitutional and overly restrictive conditions.