When to use a Knapstad motion and when not to?

Every criminal defense attorney out there knows about filing a motion to dismiss a case, or filing a motion to suppress evidence. Typically these types of motions really won’t tip off the Prosecution about what the defense theory of the case is. Meaning if you file a motion to suppress drugs for example because of an unlawful search and seizure. If you lose that motion you’re not going to turn around and argue to the jury they need to find your client not guilty because the police officer didn’t have a sufficient basis to search your client.

But in criminal defense practice in Washington state, there is another kind of dispositive motion that can be filed that is not one of the constitutional motions discussed above. It is called a Knapstad motion. This motion, for the most part, is not usually granted. But it can be filed when the defense attorney feels that based on the facts in the report, there is insufficient evidence to meet one of the elements.

For example, lets say a client is charged with Negligent Driving First Degree in Seattle. But the reason the officer pulled the client over was because he was speeding. There were no other vehicles present. There was no chance of getting into an accident with another driver, vehicle, or property. They were simply arrested for Negligent Driving 1 because their alcohol level was less than the legal limit. Well, one way to try and get this charge dismissed is to argue there is insufficient evidence to establish the elements of the crime. Meaning the Prosecution cannot prove the driver was likely to endanger persons or property.

Lots of criminal defense attorneys in Seattle don’t like to file these types of motions for a couple of reasons. First, they are typically not granted, because all the Prosecution has to do is say the facts are in dispute, and we anticipate at trial the facts will establish one of the elements the Defense is arguing we can’t meet. The other reason is that if the defense loses the motion they effectively have tipped off the Prosecution on what their theory of the case is. So in the Negligent Driving First Degree example, the Defense would argue at trial there is no evidence to provide beyond a reasonable doubt the defendant was likely to endanger any persons or property because no observations were made to indicate that.

Sometimes my practice as a DUI lawyer in Seattle, I like to lay in the weeds when one of these issues arise. Meaning I won’t file a Knapstad but instead lay in the weeds at trial and then make a halftime motion to dismiss. Effectively arguing the same thing as a Knapstad motion.

A few weeks ago I did this very thing, and it worked out perfectly for a client of mine. I represented a client charged with Prostitution Loitering in Seattle. Meaning he was accused of soliciting a prostitute. However, based on my investigation of the case I felt there was no intentional solicitation on his part. He never discussed a sex act, no money exchanged hands. Really the only evidence against him was he was talking to an undercover officer posing as a prostitute, and he was in an area of high prostitution.

I thought about filing a Knapstad motion at first. And argue to a Judge pretrial there was insufficient evidence to convict him because there was no evidence of solicitation. But I felt it would be best to not tip off the Prosecution about this defense and proceed to a jury trial. Well as I suspected the Prosecution didn’t have much of a case. After I cross-examined their witnesses there was no evidence of solicitation on the part of my client. I established no sex acts were discussed. No money changed hands. My client didn’t repeatedly drive around trying to beckon any prostitutes. There was no cash found on him, condoms, or any other circumstantial evidence that could establish he was there doing what the Prosecution was.

So after the Prosecutor rested, I asked the Judge for a sidebar. Explained to the Judge that I would like to make a motion outside the presence of the Jury. The Jury was excused, and I proceeded to make a halftime motion. I argued that the Prosecution couldn’t establish a prima facie case against my client. Even if the evidence was viewed in the light most favorable to the Prosecution there was no evidence of intentional solicitation. Which is one of the things that needs to be proven in this type of a prostitution case? The Prosecution wasn’t prepared for this, and it caught them totally by surprise.

Ultimately the Judge agreed with me and dismissed the case. My client walked away a free man. Had I filed a motion earlier to dismiss based on this issue? I don’t think it would have been as successful. But because I laid in the weeds. Didn’t tip off the Prosecution on what my defense was. Then after they rested their case, I made my motion. And as you can see it worked out perfectly. So the moral of the story is. Sometimes you need to lay in the weeds as a defense attorney in Seattle, then pounce when the time is right.

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Matthew A. Leyba is a DUI Attorney in Seattle. His practice focuses on representing those accused of DUI and other serious traffic offenses.

Pot users at risk for DUI even if below the legal limit in Washington State

I just read an article about an issue dealing with the recent marijuana legalization here in Washington state and a DUI. To be honest I hadn’t thought about this particular issue the article raises, but I find it very interesting. Essentially the article discusses how many law abiding citizens of Washington state, who have never tried marijuana are going to go out and purchase it legally now? And of those people how many are at risk for DUI?

You see the general public out there only see one thing when it comes to marijuana and DUI. They see the legal limit as 5 nanograms. What do they have to compare that to? Well the legal limit for an alcohol DUI is .08 blood alcohol level. So the general public sits back and thinks. Well if I can have 2 beers an hour, or a cocktail an hour. Whatever they think they can have to get below the legal limit, they may apply that same line of thinking when it comes to marijuana.

The problem with that line of thinking is marijuana does not have the same effect on a persons body as alcohol does. Figuring out a persons alcohol level is pretty simple math. You take into consideration their body weight, alcohol consumed, over what duration, food, etc. But with marijuana none of that really factors into what a THC level would be. Marijuana may have different levels of potency, it may affect a person differently based on their regular usage. There are many factors that are not known.

The other issue this article discusses is what happens when the THC level is below the legal limit. As a Seattle DUI Lawyer, I see this every day when it comes to alcohol. I can’t tell you how many clients I have represented on a DUI that have had alcohol levels below the legal limit of .08. In fact in my experience most people are shocked to think you can be arrested for DUI below the legal limit, let alone charged with a DUI for it. But it is true, and it happens all the time.

Well the same thing is going to happen with marijuana DUI’s in Washington state. In fact the article mentions a case in King County Superior Court where an individual was charged and convicted of vehicular homicide with a THC level of 1.6 nanograms, which is significantly less than the current legal limit of 5 nanograms. Now that person is in prison serving a 16 year sentence.

So the moral of the story is many people are going to want to try marijuana now that it is legal. Maybe try a joint, or smoke a bowl in a social setting. Much like alcohol is consumed. But what you may not know is you can be charged with a marijuana DUI that is below the legal limit. And there is no way to really know what you marijuana level is, unlike alcohol where you can make an educated guess.

CLICK HERE to see the link to the article.
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Matthew A. Leyba is a Seattle DUI Lawyer in Washington state. His practice focuses on representing those accused of DUI and other serious traffic offenses.

How do you get a copy of your DUI arrest police report

Im a DUI Attorney in Seattle lately I have been getting calls from people asking how they can get their DUI arrest report. Some of these individuals are not happy with their current DUI Attorneys and they are shopping for a new one. Some of these people were recently arrested and want to get a copy of the police report and see what the arresting officer is saying. Others just want a copy for some random reason.

Basically if you have been arrested for a DUI in Seattle then there are three possible ways to get your DUI arrest report.
The first is to make a public disclosure request to the arresting agency. Now depending on the arresting agency you may or may not be able to get this. If you were arrested by the Seattle Police Department and your DUI charge has already been filed, then you will get a response from the SPD saying you are the subject of an ongoing investigation by the City of Seattle Attorney’s office and they cannot disclose any materials and to contact the City Attorney. But if you were arrested by the Washington State Patrol for example then you can contact them through a public disclosure request and they will get you a copy of your police report usually within a month.
The second way to get a copy of your police report is to represent yourself at your DUI arraignment. This is not the smartest thing to do, but everyone has this right. If you have an attorney they cannot disclose to you the police report under the local court rules. If you look at Criminal Rule 4.7 it states the materials received from the Prosecutor are to remain in the exclusive custody of the defense attorney. This means the defense attorney cannot give the client a copy of the police report.
The other way to get a copy of the police report after a Seattle DUI arrest is to request an administrative hearing from DOL to challenge the driver’s license suspension. When you’re filling out this form you can include your name or your attorney’s name. If you include your name then the DOL will send you a copy of the police report. If you include your attorney’s name, DOL will send your DUI lawyer a copy of the police report. Your lawyer can then turn around and give that to you since it is not subject to Criminal Rule 4.7 we discussed above.
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Matthew Leyba is a DUI Lawyer in Seattle, WA. His practice focuses on representing those accused of DUI and other serious traffic offenses. If you have been arrested for DUI feel free to contact our office for a free 60-minute consultation.

New Thermal Imaging System Could Help Detect Drunk People

I recently ran across an article that discusses a new use for old technology when it comes to alcohol, people, and DUI arrests. In a paper that was published by Greek scientists it may be possible in the near future where thermal imaging may be able to detect individuals have has consumed alcohol.

How does this work you ask? Well pretty interesting. Apparently these scientists are in the process of developing new algorithms that will gather date about the blood vessels in an individuals face. You see when a person consumes alcohol often times their face will become flushed, or rosy, or even red faced. The reason this occurs is because the blood vessels in their face are becoming dilated due to the increased alcohol intake through the blood.

What these scientists hope to do is capitalize on these increased blood vessels because this will cause the individuals face to increase in temperature. And thus thermal imaging can detect that increased temperature that is different or higher than the body temperature.

This paper then goes on the describe how this process can be used by police departments. It is silent on exactly what would the police use this for. But as a Seattle DUI Attorney I can only imagine the problems with this. Imaging going to a bar or restaurant. Having a single drink or perhaps even two. Keeping mind it is not illegal to consume alcohol and drive. It is only illegal if your ability to drive is lessened in any appreciable degree or if you are over the legal limit. Then imagine police positioned on street corners shooting these thermal imaging guns at individuals. Seeing the increased temperature in their face. Assuming they are drunk and then pulling people over to investigate for DUI and other alcohol related offenses.

I dont think I need to harp on the potential 4th amendment violations that would occur from these. Here in Washington state, the 4th amendment is afforded greater protections than the federal constitution. So I doubt this would ever occur here, since we don’t even allow checkpoint stops by the police. But it is scary to think this type of technology can be used. Again as a Seattle DUI Attorney, I hope it doesn’t come to this. We have enough issues with unlawful 4th amendment seizures due to overzealous police investigations.

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Matthew A. Leyba is a Seattle DUI Attorney in Western WA. His practice focuses exclusively on representing those accused of DUI and other serious traffic offenses.

To subpoena or not to subpoena that is the question

A few weeks back I was retained on a driving while license suspended case. The client was suspended administratively by the DOL for a Seattle DUI arrest which was handled by a different attorney. When I sent a subpoena to DOL to request all the driving records, and all the other documents associated with the suspension I also received the ruling from the DOL administrative hearing.

If you follow this blog you know now that when a person is arrested for a DUI they are given the choice of either taking a breath test or not. If they take the test then they face a minimum 90 day license suspension if its over the legal limit. If they don’t take the test then they face a minimum 1 year license suspension. If they want to challenge that suspension then they request a DOL hearing which is done over the telephone.

State wide there is around a 25% dismissal rate at these hearings so they are always an uphill battle. When challenging these administrative suspensions the accused has two options when it comes to the arresting officer. They can either subpoena the officer or not. This is up to the discretion of the Seattle DUI Lawyer.

In my clients case the other attorney who represented him chose not to subpoena the arresting officer and instead made a technical argument about the validity of the police report. Subsequently they lost, and now my client is dealing with a 1 year license suspension.

But reading that ruling got my thinking when should an officer be served a subpoena to appear at the DOL telephone hearing, and when shouldn’t they. I would say in my practice I subpoena the arresting officer 95% percent of the time. Maybe more. Very rarely is there going to be some technicality in the police report that will result in the license suspension.

In addition to that even if there is some minor scribners error in the report, or some technicality you have to consider who the DOL hearing officer is. Believe it or not there are some hearing officers who have lower dismissal rates than others. In my clients particular case he had one of the toughest DOL officers, one who is known to have an extremely low dismissal rate. I could have taken one look at who the DOL officer was, and what this technical argument was going to me and predicted it wouldn’t be dismissed.

Now Im not one to really second guess what another attorney does. But in my opinion you better have a clear cut, 100% you know its going to get dismissed winner to argue a DOL hearing without the officer being present.

If not then why not subpoena the arresting officer. Remember if they don’t appear than that also can get the DOL hearing dismissed, and I would say maybe 2 or 3 out of 10 times they don’t appear. But even if they do, you get a free deposition of the arresting officer without a prosecutor being present. As a Seattle DUI Lawyer, this is a dream. Think about it you can pretty much ask the arresting officer anything you want within reason, and they have to answer it.

But to each their own I guess. This is just my opinion. Remember if you have been arrested for a DUI, and you’re looking for a DUI Attorney to represent you. Give me a call anytime, and I’ll gladly go over all your options including what may happen at your DOL hearing.

Don’t just give up at the DOL hearing

I can’t tell you how many people I meet with that just ask whether they should go ahead and accept the administrative license suspension from the DOL. It usually goes something like this, “I met with another attorney they said the DOL hearings are impossible to win, so should I just not challenge it and accept the license suspension.” My response is always, “Who the hell told you that!”

I’ll admit the DOL hearings are always an uphill battle. Especially for Seattle DUI Attorneys. For a couple of reasons really. First its a civil hearing so the burden of proof is less than in a criminal case. Secondly it seems like everything is stacked against the petitioner. The “judge” works for DOL. They also act as opposing counsel or the “prosecutor” if you will. And lastly its really in DOL’s financial interests to suspend a license because they get money when the license needs to get reinstated.

Now proponents of this process will tell you thats not the case. That an individual is afforded all the due process rights, blah, blah. But the reality is in most cases if you’re arrested for a DUI then your drivers license is going to get suspended. I mean statewide there is something like a 25% dismissal rate at these hearings.

What I listed above are just a few factors contributing to that low dismissal rate. In all honesty I think what really contributes to those numbers are attorneys who just phone in the DOL hearing. In other words they think they are going to lose, they don’t spend any time preparing, and they just go through the motions at the hearing itself. Their rationale is, hey Im going to lose this hearing anyway, so why put in the time and effort. I mean after all I think thats just human nature. You get beat down so many times, you just give up.

Well thats not how my firm does it. And I think our results speak for themselves. I put everything possibly into these hearings. I really treat it like a jury trial. My goal is to have as much of the case investigated as possible at this early stage. Meaning all witnesses have been interviewed, all videos have been subpoena’d, I spend several hours preparing for the hearing, another hour or so drafting my cross examination of the officer, another hour drafting my closing argument along with having every case I need handy. Overall its not uncommon for me to spend anywhere between 10 – 20 hours preparing for this hearing. Now some Seattle DUI Lawyers probably think thats crazy, but thats just how I was raised. Not to do anything half ass.

Now obviously I don’t win every hearing. But I feel like I win my fair share, and its above the statewide average. The reason being is not because Im smarter than other attorneys (most yes), or because Im lucky. I think the reason being is because I work harder than most if not all other Seattle DUI lawyers.

If you have been arrested for a DUI and you’re deciding whether or not to go forward and challenge the suspension. Do it. What do you have to lose? Other than $200.