Tag Archives: breath testing

A breath test can be disclosed in a DUI jury trial opening statement thanks to recent decision

April Apr, 2016 Matthew Leyba Leave a comment

Recently the Washington State Court of Appeals Division One expanded on what can be said in an opening statement involving a DUI breath test and to nobody’s surprise it is a very Prosecutor friendly ruling. Traditionally the opening statement by the Prosecution in a criminal DUI jury trial outlines the facts of their case, who and what their witnesses will testify to, and how they will prove the Defendant is guilty beyond a reasonable doubt. In my experience the Prosecutors were never allowed to tell the jury what the breath test reading was because it had not been admitted into evidence yet. Prosecutors would always try and argue they should be allowed to disclose it because it was evidence they reasonably believed would be admitted.

A Breath test can now be revealed in an opening statement

In all the years I have practiced criminal defense I can’t think of a time where a Judge allowed a Prosecutor to disclose the specific alcohol reading to the jury in opening statement. Well that is about to change thanks to a recent Court ruling by the Washington State Court of Appeals in City of Puyallup v. Spenser. In that case a Prosecutor mentioned the defendants breath test was a .11/.12 to the jury in a DUI trial. The Defense Attorney objected and argued for a mistrial. However the Court overruled the objection. The defendant was later convicted of a DUI. The defendant appealed to the Superior Court which reversed the conviction, however the Court of Appeals reversed that decision and here we are.

What happens now in DUI cases with a breath test

So what does that mean moving forward? It means Prosecutors can now tell the Jury what a breath test is in their opening statement. Now is it really a big deal if the breath test became admissible anyway. Maybe not, but that is not the point. It is a big deal because what if the breath test is later found to be inadmissible due to some foundational issue or the Prosecutor just screws up. What happens then? Since the Prosecutor was allowed to disclose this number in the opening statement the Jury is going to know there was a breath test, what that number was, and don’t think for a minute that will not creep into their back of their minds during deliberations. Even if a Judge tells them they are not to consider it, you cannot un-ring that bell, you cannot undue what they heard. And that is the problem with this ruling.

As a criminal DUI defense attorney in Seattle I have litigated well over a hundred jury trials. And in most cases the Prosecutors don’t screw up, and they are able to introduce the breath test ticket as evidence. However I have had cases where the Prosecutors did screw up and they were not allowed to introduce the breath test ticket. In those cases the jury never heard of my clients alcohol level because the Prosecutor was not allowed to disclose that in opening statement. The ruling in the Spesner case no longer affords defendants that benefit. And that is a shame.

Bellevue DUI Laws, DUI Advice

Should there be alternatives for pretrial ignition interlock conditions in DUI cases?

July Jul, 2015 Matthew Leyba Leave a comment

If you have been arrested for a DUI in the Seattle area then you face the possibility of a Judge imposing pretrial conditions at your arraignment. This means the Judge has the authority to require a defendant to follow certain conditions while the case is pending. Typically on DUI cases this involves no drinking and driving, no driving without a valid license and insurance, and no refusal of a breath test. However in some cases a Judge can require a defendant to post bail or install an ignition interlock device until there is a resolution in the DUI.

In Seattle for example if you have a DUI arraignment in the Seattle Municipal Court then there is probably a very good chance you might be required to install an ignition interlock device even on a first offense DUI. This is just how they roll down there nowadays. If you don’t have a car, or the means to get an ignition interlock device installed then you can sign a declaration under penalty of perjury that you will not drive a motor vehicle. If you get caught driving a motor vehicle after you have signed this declaration then chances are you will go to jail unless you can come up with a significant bail amount.

I recently read an article in the Seattle Times about this very issue. The gist of the article was how Washington State lawmakers are proposing a bill that would allow drivers facing DUI charges to avoid a mandatory pretrial condition of ignition interlock by swearing they won’t drive. It sounds like this is modeled after what the Seattle Municipal Court has been doing for years.

To be honest I’m surprised something like this is being proposed, however I think it is an excellent idea and I hope it passes. Often times people cannot come up with the money for an ignition interlock device or they don’t own a car. In those situations Prosecutors will ask the Judge to have the driver sit in jail while the case is going on or make them come up with the money for electronic home monitoring. As a practicing Seattle DUI Attorney I think these current alternative options are just ludicrous.

Look I get it. There really is no way to ensure a person is not going to drive again by signing a declaration. In today’s day and age it is fairly easy to get your hands on a car. Either from a friend, family member, etc. But there has to be an alternative options for those individuals that cannot get an ignition interlock device. Jail is too expensive for the tax payers, and too over populated with more serious offenses. I hope this bill is considered to provide alternative options for individuals in this situation.

If you’re interested in reading the article and checking out the proposed bill, here you go.

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About the author: Matthew Leyba is a DUI Attorney in Seattle, WA. He is the firm owner of Leyba Defense PLLC, a criminal defense law firm focusing on DUI defense in the Puget Sound area.

Blog, DUI Advice, DUI Risk, DUI Tips

What happens if you refuse the breath test following a DUI arrest

May May, 2014 Matthew Leyba Leave a comment

A few days ago I blogged about what happens if a person arrested for a DUI in Washington State takes the breath test at the police station. To follow up on that. I now answer the question what happens if you refuse to take the breath test following a DUI arrest. In my opinion as a DUI Attorney in Seattle some good will happen, and some bad will happen. So here you go.

If you get arrested for DUI first and foremost ask to speak with a lawyer immediately. The law is constantly in flux regarding DUI cases here in Washington State. And this can vary from County to County to Court to Court. For example last fall if you refused the breath test following a DUI arrest in King County there was probably a good chance evidence of that refusal could have been thrown out in Court. A DUI Attorney would have known than and could have advised the driver arrested for DUI of that particular issue.

So what happens if you refuse the breath test. First you face a minimum of a 1 year drivers license suspension or loss of privilege to drive in WA by the Department of Licensing. Just like if you take the breath test and you’re over the legal limit. If you refuse to take the breath test then you face an administrative action from the DOL. Regardless of what your actual alcohol level was.

Secondly you face a minimum of a 2 year drivers license suspension or loss of privilege to drive in WA if you actually get convicted of the DUI or Physical Control criminal case. This particular suspension can vary depending on whether this is a first offense DUI or not. For example if you have prior DUI offense and you refuse the breath test on the new DUI and you get convicted then you face a 2 year license suspension.

Additionally if you refuse the breath test and end up going to trial to fight the DUI then in some cases the Prosecutor could use that refusal against you. The theory behind this is the driver would not have refused the breath test if they didn’t believe they were going to be above the legal limit. It can be a very effective argument during trial and it makes jurors really think.

Lastly if you decline the breath test then you might face a mandatory blood draw at a hospital. For example let’s say you refuse the breath test following the DUI arrest. The police officer then contacts a Judge. Explains why they believe you’re under the influence, and that you declined the breath test. If the Judge grants a search warrant then the police officer can drive you to the nearest hospital and force a need in your arm to draw blood.

Obviously this is not good because on one hand the DUI still has that refusal element to it when it comes to a license suspension, and being used in a criminal trial. But the police now have actual blood test results to use as the scientific evidence. Nowadays refusing a breath test in King County and in particular Seattle means most likely the police officer is going to get a warrant for the blood test. So beware.

About the author: Matthew Leyba is a DUI lawyer in Seattle, WA. He is rated a perfect 10 out of 10 by Avvo.com, and has been repeatedly named a Rising Star in the area of DUI Defense by the Seattle Met Magazine’s annual Best Lawyers in WA publication.

Blog, DUI Advice, DUI Tips

What happens if you take the breath test following a DUI arrest

May May, 2014 Matthew Leyba Leave a comment

08-300x300 One of the most common questions I get asked by anyone and everyone is what happens if I take the breath test if I get arrested for DUI. In fact I was at a great restaurant over the weekend (Brimmer & Heeltap in Ballard) and I started talking with the couple next to me. When they found out I was a Seattle DUI Attorney that was the first question they asked. So it got my thinking why not write a blog post about it. So here you go…

What happens if you take the breath test following a DUI arrest. Well a couple different things can happen:

First if you take the breath test and there is a reasonable amount of alcohol in your system. I would say anything above a 0.03 then you’re getting charged with a DUI. That may actually surprise a lot of you. And in fact I recently wrote a blog post about how you can get possibly arrested and convicted for a DUI with only 1 drink in your system. A 0.03 is about that limit. Now whether you actually get convicted of a DUI with a alcohol level that low is another story. True story: As of writing this post Leyba Defense PLLC has never lost a DUI jury trial where the alcohol level was below a 0.08.

Secondly if you take the breath test and your alcohol level is at or above 0.08 then you’re definitely going to get charged with a DUI. But you’re also going to face a possible administrative action with the Washington Department of Licensing. What this means is if this is a first offense and you have never been arrested for a DUI before and you take the breath test and you blow over the legal limit then you’re facing a 90 day loss of your license or privilege to drive in WA State.

Thirdly if you take the breath test and your alcohol level is at or above 0.15 then you’re facing increased penalties in the criminal case. This would include more jail, more fines, and a longer drivers license suspension. You’re also facing the same administrative action with the Washington State Department of Licensing as if you were below a 0.15 but above a 0.08.

So what to take away from this. If you take a breath test and you’re below the legal limit you most likely will still get charged with a DUI. If you take the breath test and you’re above the legal limit then you most definitely will get charged and you face a separate legal action with the Washington Department of Licensing. Tomorrow I will discuss what happens if you don’t take the breath test at the police station following a DUI arrest.

About the author: Matthew Leyba is a DUI Lawyer in Seattle, WA. He is rated a perfect 10 out of 10 by Avvo.com, and has been repeatedly named a Rising Star in the area of DUI Defense by both the Seattle Met Magazine, and the Super Lawyers Magazine, an honor less than 2.5% of all lawyers receive in their particular area of practice.