I recently read an article from the Seattle Times that discusses how a team at Washington State University is in the process of developing a hand held device that would be used to detect Marijuana on a subject’s breath (such a Coug thing to do). The article states the device would use a technique called ion mobility spectrometry to detect THC in someone’s breath. It’s an interesting article if you want to check it out here you go. Here is my take on it.

Now that marijuana is legalized in several states it is inevitable that there will be an increase in marijuana related DUIs in Seattle or anywhere for that matter. And it is only a matter of time before someone creates some kind of device or portable blood test that law enforcement will be able to use during their investigation for a marijuana DUI.

The problem is the device better be able to provide some sort of level of marijuana in the subjects system. And here is where I think this device described in the article misses. The first line of the article states, “A team at Washington State University is working to develop a breath test that could quickly determine whether a driver is under the influence of marijuana.” Well that is incorrect.

What is described about this device and my understanding is it will only be able to detect whether Marijuana is in the subject’s system. That is great and all, but there are other tests that law enforcement can use to determine whether Marijuana is in somebody’s system. For example the odor of marijuana is a pretty good indicator that Marijuana MAY be in the system.

So here is the problem with a device that only can detect whether marijuana may be in the system. It is not illegal to use marijuana and then drive. Marijuana is legal now in Washington State so there is a legal limit. The fact that this device may be able to detect whether there is marijuana in the system is irrelevant in my opinion and wouldn’t be worth the cost to implement this device out in the field.

Unless it can show a level or even whether the marijuana is active then this will never be put to use when investigating DUIs. Again the article misses the point, technically it is not showing whether a driver is under the influence of marijuana when it comes to a DUI, it is only showing it may be in their system. I do not believe that sole observation would meet any sort of acceptable reliability to justify placing a subject under arrest for a marijuana DUI. Again in Washington State is not illegal to use marijuana and drive.

But when that day comes when a device is created that can provide a level then “ching ching,” there will be some serious dough involved for the inventors. Sign me up as an investor!

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About the author: Matthew Leyba is a DUI lawyer in Seattle. He is rated a 10 out of 10 by Avvo.com among Seattle DUI Lawyers. He has also been named one of the best DUI lawyers in Seattle by the Seattle Met Magazine, an honor less than 2.5% of all lawyers receive.

If you’re currently facing a DUI charge in King County District Court then there is probably a good chance the case will end up being set for a jury trial. However when that case will actually go to trial is another story. How is that possible you ask? When a case is set for trial aren’t all the parties given a court date with the expectation to appear in court and start the trial. Well not necessarily.

You see here in King County criminal cases in particular DUI cases in Seattle are being set for trial left and right. Due to the increase in cases being set for trial the Courts have become back logged with trials. Any given trial week there can be 15-20 different cases set for trial. With only 2-3 cases actually going forward during that week. So what happens to those other 17+ cases?

Good question. After all isn’t there such a thing as a speedy trial period. You know the right that every defendant has to be brought to trial within a certain period of time. If you’re in custody 60 days, if you’re out of custody 90 days. Well those rights don’t exist in King County anymore.

Due to the number of cases that can’t be brought to trial within their speedy trial period, the Courts are implementing a little known local criminal rule which allows a Judge to continue a case 28 days past the speedy trial expiration as long as they can make up some B.S. excuse about court congestion and how they can’t try the case any place else, and as long as there is no prejudice to the defendant than boom. Good bye speedy trial period and welcome to what is called the “cure” period. Basically some term that Courts can use to keep a criminal case in limbo until they can make time to try the case.

It really is unfortunate and this is a direct cause of the lack of plea bargaining that takes place in King County DUI cases. Prior to all this I remember having a trial set and it actually going on the date it was set for. Imagine that. As a Seattle DUI Attorney actually being able to block out a date in my calendar to be in trial was so nice. The client knew what date exactly to take off work. Heck even the police officer knew exactly when to be in court and for how long.

Well it is not like that anymore and it has become an incredible inconvenient to everyone involved not named the Prosecutor. So if you have a criminal case set for trial in King County, I can tell you with almost 100% certainty that case will not be going to trial on that date chosen. In fact you might have to come to Court another dozen or so times only to be told to come back the following week. It’s like groundhog day.

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About the author: Matthew Leyba is a Seattle DUI Attorney. He has been recognized as a Rising Star in the area of DUI Defense by the Seattle Met Magazine, an honor less than 2.5% of all attorneys receive in their respective practice area. Additionally he is rated a perfect 10 out of 10 by Avvo.com

If you have been arrested for a DUI then chances are you were offered the field sobriety tests by the arresting officer. If you follow this blog then you will know that in my opinion these so called “tests” are designed for people to fail. And because of this DUI Attorneys have always advised those facing these tests to politely decline. However due to the recent case of State v. Mecham it seems drivers are damned if they do the tests, and damned if they don’t do the tests.

Here is a refresher on State v. Mecham. In case you forgot that case held that a field sobriety test is an exception to the warrant requirement pursuant to a Terry stop and therefore it is a reasonable search and a warrant is not required. Secondly because a warrant is not required it is not protected by the 4th amendment and therefore a Prosecutor can comment on a defendant’s refusal to perform the field sobriety tests because there is no constitutional right to refuse the test. In other words a Prosecutor can argue in trial the reason a defendant declined the tests is because they knew they were going to fail and guilty. Talk about some BS huh? Well its getting worse.

In the past few months I have had several Judges find that police officers can now use a driver’s refusal as evidence of guilt and subsequently use it justification for probable cause to arrest. Say what you’re asking? Yes that read that correctly, let me paint a picture for you.

Let’s say you get stopped for a DUI in King County, WA and you had a single drink. You exhibit no coordination issues, no slurred speech, no facial color issues, no finger dexterity issues, no signs of impairment. Only the odor of alcohol. The officer then asks you to exit the vehicle and perform some “voluntary” field sobriety tests. You politely decline like any Seattle DUI Attorney would and you get arrested. Seems like there would be a problem with probable cause, right? Well not according to many Judges here in King County. As soon as you exercise this right, after all these tests are voluntary aren’t they, a Judge will find the arresting officer had probable cause to arrest you because only a guilty person would decline these tests. Talk about some bullshit.

So the moral of the story. If you get stopped for a DUI then you’re damned if you do the tests, and you’re damned if you decline the tests. Either way you will get arrested for a DUI, and either way a Judge will find there was probable cause to arrest. Hopefully this State v. Mecham case goes on to the Washington State Supreme Court and gets overturned because I’m sick to my stomach thinking about this case.

Not only can a Prosecutor argue a driver refused the field sobriety tests because they were guilty, but now a Judge can find probable cause if a driver refused the tests based on this silly reasoning.

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About the author: Matthew Leyba is a DUI Attorney in Seattle, WA. He has been repeatedly recognized as a Rising Star in the field of DUI Defense by the Seattle Met Magazine. He is also rated a perfect 10 out of 10 by Avvo.com, a lawyer rating service.

A recent Seattle Times article can out confirming what a lot of DUI Attorneys already knew.  The Washington State Patrol has begun rolling out the new breath test machines in Washington State.  Speaking on behalf of the WSP, Trooper Mel Sterkel confirmed 83 of the new Dräger Alcotest 9510 machines will be placed in police and sheriff’s stations, jails and State Patrol divisions in northeast and southeast Washington.

So what does this mean?  Well nothing at the moment.  Until the training begins with law enforcement the machines will just sit in these breath test rooms.  However once the training starts look for these machines to be put in use.  I bet by the middle of next year they will to be used in certain jurisdictions.  Although look for the old breath test machines to be used as well because only law enforcement that have received training on the new breath test machines will be allowed to use them.

I recently attended a CLE on these new breath test machines.  And I have to tell you I think there are going to be some issues when they start getting put to use.  Specifically how they were stored.  From what I hear these machines were just sitting in boxes in a storage unit and forgotten about.  They were really cared for.

Imagine buying a brand new computer and just putting it in your garage and keeping there for several years without ever opening the box.  I don’t know about you but I would have a little concern about whether it was going to work properly.  And I would have a lot of concern if their reliability and accuracy determined a drivers loss of liberty.  To me it is just one more example of the WSP and the State Toxicologist office in Washington State being lazy and careless when it comes to the liberties of Washingtonians.  Keep an eye out for future blog posts on this topic.

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About the author:  Matthew Leyba is a DUI lawyer in Seattle.  He is the owner of Leyba Defense PLLC a DUI law firm located in the heart of downtown Seattle.