In November of 2013, a bad DUI case came out for the DUI Defense community in Washington State.  State v. Mashek, 117 Wash.App. 749. It had to do with a breath test suppression and what is required of a law enforcement officer when it comes to actually observing the defendant prior to the administration of the breath test. I have been meaning to review this case since I read it in December. My apologies for the delay, but that’s what a newborn will do.  Here is my analysis…..

A little background on this case. The defendant was charged with a felony DUI because she had previously been convicted of vehicular assault. At a motion hearing, the defendant moved to suppress the breath test because the police officer did not continuously observe her prior to the administration of the breath test. The picture above is courtesy of my good friend and fellow DUI lawyer, William Maze. Check him out at http://www.michigan-drunk-driving.com/

Specifically, there was a three-minute span where the law enforcement officer’s body was positioned away from the defendant while he was setting up the breath test machine. The defendant argued this was not a proper 15-minute observation period because the officer did not continuously observe her. FYI in order for a breath test to be admissible, an operator needs to observe the subject for at least 15 minutes prior to the administration of the breath test to make sure they do not vomit, eat, drink, or smoke.

The trial court granted the defense motion to suppress the breath test finding the officer did not observe the defendant for a three-minute span. The State appealed, and the Court of Appeals for Division 2 overruled the trial court. Finding the observation period does not require a fixed or visual observation; rather the observation period is satisfied if an officer uses all their senses, not just sight, to determine the subject does not eat, drink, smoke, or put any foreign substances in their mouth at least 15 minutes prior to the test.

Obviously, this is a bad case for the Defense. One of the basic arguments DUI Attorneys make to suppress the breath test is the observation period was not satisfied.  Especially when the officer is not paying attention, turns their back to the defendant, etc. However, I still believe this case leaves open other challenges based on improper observation.

For example, let’s say the defendant puts their hand over their mouth. This was one of the issues raised in the Mashek case; however, the trial court nor the Court of Appeals ruled on it.  The ruling was specifically related to the 3-minute span when the officer had turned away from the defendant. If a Judge can be convinced of the difference, or the defendant had some sort of foreign substance that was introduced into the mouth region.  That might be a way to distinguish it from the case and get the breath test suppressed.

About the author:  Matthew Leyba is a practicing DUI Lawyer in Seattle, WA.

I previously blogged about what takes place at a free initial consultation with a DUI Attorney as well as the types of questions to ask when interviewing a DUI Attorney. The post deals with what qualities to look for during this initial consultation. In my opinion there are several to consider and look for during this meeting. However the bottom line is whomever you decide to hire you need to feel comfortable with. After all hiring a DUI Attorney is not only a necessity but it is an important investment in your life, especially considering the dire consequences DUI’s carry in Washington State.

Professionalism: You want a DUI Attorney who is a professional. To me that is more than someone who simply wears a suit and has an office in downtown Seattle. It is someone who is going to shake your hand and look you in the eye. It is someone who takes the time to listen to you and takes notes on your case. It is someone who does DUI Defense for a living and has all the credentials and respect from fellow defense attorneys, prosecutors, and judges. It is someone who takes their job seriously.
Honesty: You want a DUI Attorney who is honest. The other day I met with a prospective client. This person told me they had spoken with a different DUI Attorney and that person told them how they were getting to get win the DOL hearing, get this piece of evidence thrown, get that piece of evidence thrown out, etc. Frankly if an Attorney tells you they are going to win your DOL hearing or get your breath test thrown out with looking at the police report, interviewing the police officer, review all the discovery then they are lying to you. Unfortunately this is a dirty business. There are lots and lots of DUI Attorneys in the Seattle area. Sometimes certain Attorneys resort to this in order to convince a client to sign with them. I don’t agree with it, especially if the Attorney can’t live up to the promise, but to each their own.
Confidence: You want a DUI Attorney who is confident in their abilities. Now this can border between what I described above, and sounding confidently when describing the game plan that will be executed during the course of a DUI case. There is nothing wrong with a confident DUI Attorney, especially if they know what they are doing. But to flat out promise things that is not confidence but deception. There is a difference.

Those are just three personal qualities I think are important for a DUI Attorney to have. Obviously they need to have the experience, the result history, and the knowledge to get the best outcome possible for the client. But the bottom line is this. When meeting with a DUI Attorney if you don’t immediately feel comfortable speaking with them then move on. That is the most important connection to have. After all a DUI case is no joke. There are some serious consequences nowadays, especially with DUI cases in Seattle.

_
About the author: Matthew Leyba is a DUI Lawyer in Seattle. He has been repeatedly recognized as one of the best DUI Attorneys in Seattle by the Seattle Met Magazine. He is also rated a perfect 10 out of 10 by Avvo.com, a lawyer rating service.

Last week in Olympia a man convicted of his 7th DUI was sentenced to 1 year in jail, but allowed to serve that time on Work Release in Thurston County, WA. The sentence received by this guy has drawn outrage among many in Olympia due to the sentence he received. Although Im sure most of the backlash has to do with notion he got off because he was rich. As a DUI Attorney in Seattle who has practiced in this court let me tell you why this thinking is flawed.

First of all unless you have read the police report, reviewed all the discovery, interviewed the witnesses, and was privy to the negotiations between the Prosecutor and the Defense Attorney then you have no idea about this case. Simply reading about it in the newspaper does not mean anything.

Let me tell you how things work from the Prosecutors end. They reviewed this case. If they made the offer to this guy then there most likely was severe proof problems. Do you think for one minute that they would ever give someone with 6 prior DUIs a break. Especially in the day in age. The answer is no. So there must have been some proof problems with the DUI in order for the Prosecutors office to offer the reduced plea they did.

Secondly a year in jail is the maximum penalty for a DUI. For all those people saying he should have gotten more. He couldn’t have. A gross misdemeanor. Which is what a DUI is. Carries a max penalty of 364 days in jail and a $5000 fine. A Judge cannot exceed the max penalty it is statutory. Now I get that some are upset because he got work release.

Let me tell you this. Work release is a common program when people are in custody for lengthy periods of time. This was not offered because this guy was rich. Heck I have see homeless people get offered work release, whether they qualified as a different story. But 90% of the people who are doing some serious time in jail get offered work release.

Now the only part of this story I kind of can see why people are getting upset about. Which you can read here. Was this guy was allowed to go see the Super Bowl. Apparently the Judge signed an order modifying his release conditions. Maybe he was on home detention or some sort of daily breath testing. That seemed a little odd to me, but I have no idea what the facts of the case were so I will not hold judgement against the Judge or Prosecutor in this case.

Lastly I want to leave you with this. This guy pleaded guilty as charged to a DUI. It’s not like he got off scott free. He pleaded guilty and is doing the max penalty allowed by law. I don’t see anything wrong with the sentence he received.

_
About the author: Matthew Leyba is a DUI lawyer in Seattle.