Tag Archives: dui case

DUI Advice

So the DUI FST’s are admissible in a trial…now what?

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In a DUI case often times there are several key pieces of evidence the Prosecution rely upon.  The field sobriety tests (FSTs) are one of these and therefore must be challenged by the DUI defense attorney.  Unfortunately the reality is often times these tests are found to be admissible for a trial.  Thus the need to develop creative and unique challenges must be done in order to effectively present a defense in a DUI jury trial.

In my opinion there are 4 ways to effectively challenge these tests in a DUI jury trial.  I have previously created a quick you tube video on how to do this, however here is a more detailed explanation.

Did the DUI Officer administer the FSTs correctly

Challenge the administration of the tests:  This is easier said than done.  However as any good DUI Attorney knows if the tests are not administered according to the NHTSA manual than the validity of the tests can be compromised.  This can include improper administration of the tests, or incorrect instructions.  So what should the DUI Defense Attorney look for.  Probably the best tool to use is any in car or dash cam video of the FSTs.  Listen to each test.  Listen to the instructions provided for each test.  If they do not follow the NHTSA manual to the tee not only can a pretrial motion to suppress the tests be made, but an argument can be made to the jury these tests were not properly instructed and therefore affected the defendants performance on the test.  If a video does not exist then interview the arresting officer.  Carefully walk the officer through each test.  Ask how they instructed and administered the test.  If its possible record this interview for later as possible impeachment material.

Did the defendant have a physical limitation

Challenge the defendant’s ability to perform the test:  This challenge usually arises when there is some physical limitation that impeded the ability to perform the test.  This can happen if the defendant has a physical injury that could affect the test, or if they are of a certain age or weight, or something as simple as their foot ware.  For example I once had a trial where my client had polio when they were younger.  As a result he walked with 2 crutches.  Believe it or not a Judge ruled these tests were admissible despite this and the case ended up going to trial.  During the trial the officers testified they saw the crutches in my clients vehicle, and he informed them of his physical limitations earlier.  They also said they considered this in making their arrest decision.  Not surprisingly they said my client exhibited every clue and in their opinion he was impaired.  Long story short the Jury found my client not guilty and were appalled at the police officers and prosecution for not recognizing the problems with making a guy with polio perform these tests.

Did the defendant actually perform well

Challenge the scoring of the tests:  Lets assume the officer followed all the proper instructions and procedures for the tests and the defendant didn’t have any physical limitations or injuries.  For example I recently had a DUI trial in Seattle where the officer testified on the walk and turn that my client exhibited 6 of 8 clues on the Walk and Turn test.  However a closer look at the test revealed the client actually did well.  The client lost balance and started too soon at the same time after maintaining the instruction stance for well over 1 minute.  The client also stepped offline, stopped walking, raised their arms, and missed heel to toe on the first step they took.  According to the officer this counted as 4 clues.  However on cross examination it was revealed that of the remaining 17 steps my client did not exhibit a single clue.  All the clues that were exhibited occurred on one single step at the beginning of the test.  I felt this was very effective and showed if the jury looked at the totality of the test the performance was 99% perfect.  After speaking with the jury they agreed with me on this point.

Did the environment contribute to the performance

Challenge the environment these tests take place in:  In every DUI case I have ever represented these tests are usually administered on the side of the road on a shoulder or sidewalk area.  Think about it they are typically done in the middle of the night, the subject is usually freaking out and extremely nervous.  The officers explain these tests in one single sentence extremely fast.  The area is not well lit nor is it level.  Cars are whizzing by.  The movements are not normal.  Regardless of what the police, NHTSA, and the prosecution believe these tests are designed for people to fail.  If you can effectively get that across to the jury best case scenario they will disregard the tests or at the very least place little weight on the performance.

Every DUI case is different.  But in my opinion these are the most effective ways to challenge the tests in a Seattle DUI case.

DUI Advice, Seattle DUI Laws

New WA state case expands on reasonable suspicion to stop based on lane travel

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One of the most common reasons drivers get pulled over and ultimately arrested for DUI in Seattle is based on violations of the lane travel statute. In 2008 the case of State v. Prado elaborated on what constitutes a violation of the lane travel statute. Last week the Division One Court of Appeals in Washington state finally ruled on another case that sort of expanded on the Prado case in State v. Jones.

So here is the typical situation where these cases apply. A driver is on Interstate 5 here in Seattle. A Washington State Patrol officer is behind the driver. As the vehicle is driving along it brief crosses into another lane and then corrects itself. Based on this a Trooper will conduct a traffic stop and say based on their training and experience when a vehicle drifts into another lane that is a sign of a possible DUI.

In the Prado case the police stopped a car that had crossed a lane divider line in an exit lane by approximately two tire widths for one second ultimately arrested the driver for DUI. The Officer relied on the lane travel statute which states, “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made safely.” RCW 46.61.140(1).

On appeal, the Court concluded that the language “as nearly as practicable” required an analysis of the totality of the circumstances, which did not justify a stop based on merely a “brief incursion across the white lane line with no erratic driving or safety problems.”

In the State v. Jones case which was decided last week. That driver was observed by the police crossing over the fog line approximately an inch three times, each time correcting its position with a slow drift. Ultimately that driver was stopped and found in possession of a firearm when he was unlawfully allowed to possess one. As in the Prado decision, the Court of Appeals once again found there was insufficient evidence a lane violation had occurred based on the testimony and evidence before the Court.

As a Seattle DUI Attorney, I found this decision interesting in a couple of ways. First the driving in the Jones case was arguably more in violation of the lane travel statute than in the Prado case. Remember in Prado that driver crossed a lane of travel by two tire widths for less than a second. In the Jones case that driver crossed the fog line by an inch 3 times and then slowly drifted back into the lane of travel.

From a reading of the Courts opinion it sounds like the Prosecutor may have dropped the ball during the initial testimonial motion to suppress. During the appeal of the Jones case the Prosecutor relied on a case named State v. McLean. In that case a Trooper stopped a driver after observing him cross the fog line three times. Sounds familiar, right?

Well as the Court pointed out in the Jones case. The McLean case is different because in the case testimony was elicited from the Trooper about his training and experience. How drivers that he typically contacts based on similar behavior end up being a DUI. In the Jones case, the Prosecution never elicited such testimony. All they had to elicit from the Trooper was based on her training and experience she has seen this type of driving before and the majority of drivers she pulls over for this infraction have been drinking.

Anyway so in my opinion as a DUI Attorney this is a favorable case for the Defense.

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About the author: Matthew Leyba is a DUI Attorney in Seattle. He is the firm owner of Leyba Defense PLLC, a boutique DUI firm located in downtown Seattle. He has been repeatedly recognized as one of the best DUI Lawyers in Seattle by the Seattle Met Magazine’s Annual “Best of” Edition. He is also the highest rated DUI lawyer by Avvo.com

DUI Advice, DUI Risk, DUI Tips

When to expect a court date following a DUI arrest in King County

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One of the most common questions I get asked whenever I speak with someone who was recently arrested for a DUI in King County. Is when will my first court date happen? A few years ago this was more difficult to guess due to the delayed filings of DUI cases that routinely happened in King County. However, DUI cases are now being filed more consistently and thus it is easier to tell someone when to expect that unpleasant letter in the mail.

To pinpoint exactly when to expect that first DUI court date. Two things need to be known. First, who was the law enforcement agency that arrested you? Secondly was there a blood test involved. So let’s go over all the possible scenarios.

If you were arrested by the Seattle Police Department. Then the arresting officer will give you notice of your first court date personally. This is typically 2-3 business days following the DUI arrest. Your first hearing will be in the Seattle Municipal Court. This assumes there was no blood test involved. Because a blood sample needs to be analyzed by the State Toxicologist office this can delay the filing 2-3 months. If this applies to you then you will receive a letter in the mail from the Seattle Municipal Court in that time frame informing of your a Court date.

If you were arrested by the Washington State Patrol then your DUI case will be filed in one of the King County District Courts. The Courts that would be applicable to hear the DUI case would be in Redmond, downtown Seattle, and at the Regional Justice Center in Kent. Unfortunately, it can be difficult to expect where the DUI case will be filed if the arresting officer is not known. In other words, let’s say you were arrested in Seattle. Conventional thinking would suggest the DUI case would be in the downtown Seattle court, but that is not necessarily true. Depending on how the arresting officer was it could be in Redmond or in Kent. An experienced DUI Lawyer would be familiar with most of the Troopers who arrest in Seattle for DUI and can give advice on where to expect the DUI charge filed based on prior experience with that Trooper.

Let’s say you were arrested by a local law enforcement agency in the outlining eastside cities. Such as Redmond, Bellevue, Issaquah, Newcastle, Mercer Island, etc. Typically these cases take a little longer to get filed. Usually around 30 days. So expect a letter in the mail informing of that first DUI court date.

Law enforcement agencies in South King County seem to be a little sooner in filing DUI cases. Des Moines, Tukwila, Auburn seem to file DUI charges relatively quickly. Often times seeing a Judge the next day following a DUI arrest.

The law enforcement agencies in North King County typically file within 30 days. So in Shoreline, Lake Forest Park, etc. You will get a letter in the mail much the same way the Eastside cities do it.

Obviously things can vary from jurisdiction to jurisdiction. But if you’re facing a DUI offense in King County speak with an experienced DUI lawyer to help navigate you through the process, explain where your DUI case will be, and when to expect that first court date.

DUI Advice, DUI News, DUI Risk, DUI Tips

Under no circumstances should you try to game an ignition interlock device

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I recently saw a report from KIRO News here in Seattle about a woman who tried to game an ignition interlock device. Apparently, this woman was required to have one installed due to a prior DUI arrest. She then was trying to allegedly game the system by having her boyfriend blow into the ignition interlock device when she should have been. Unfortunately for her most ignition interlock devices have cameras installed to try and prevent this from happening.

As a Seattle DUI Attorney, I have come across all sorts of ways people try to beat an ignition interlock device. In case you don’t know what an IID is and how it can be imposed here you go. Ignition interlock requirements. However in my opinion that is the stupidest thing a person can do and here is why.

Following a DUI arrest most people have to appear in Court to formally enter a not guilty plea on the charge. If the Judge were to impose an ignition interlock device at the arraignment then most likely the Judge also imposed an abstain condition as well. In Seattle, this happens quite regularly, especially in places like the Seattle Municipal Court.

If you try to game the ignition interlock system you most likely will be caught. The ignition interlock company will notify the Court where your DUI case is. The Judge will then set a hearing to address the release conditions. Keep in mind at this hearing that a Judge only needs to find by a preponderance of the evidence the release conditions have been violated. If that is the case then criminal rule 3.2 allows a Judge to amend a release order. If a Judge has ordered an ignition interlock device and an abstain condition, then they will only go one direction in amending that order. This would be an increase in any bail amount, and probably a SCRAM bracelet.

So unless you want to spend the duration of your DUI case in jail, or you want to drop an extra $400-$500 a month on a SCRAM bracelet then just don’t have a drop of alcohol and drive when you have an ignition interlock device in your vehicle. It’s that simple.

Oh and in case you were wondering about that news report on KIRO with the woman who tried to game her IID. She is now in custody after the ignition interlock company notified the Court of her violations. Additionally, the pictures taken from the ignition interlock device show she had a 3-year-old in the backseat. My guess is she and her boyfriend will be facing some new charges. Probably a reckless endangerment or something along those lines. It’s not worth it.

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About the author: Matthew Leyba is a DUI Lawyer in Seattle. He is rated as a 10/10 by Avvo.com when it comes to DUI lawyers in the Seattle area. He has also been repeatedly recognized as a Rising Star in the field of DUI Defense by the Seattle Met Magazine, an honor less than 2.5% of all Lawyers in Washington State receive.

DUI Advice, DUI Risk, DUI Tips

How to be proactive following a DUI arrest

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If you have been arrested for a DUI then time is of the utmost importance. In order to get the best outcome possible a driver arrested for a DUI needs to be proactive when it comes to three aspects of the DUI case. Not only will this help you as the accused in a DUI case, but it will help your DUI lawyer better represent you. To learn what these three aspects are continue reading.

First you need to stop drinking and discontinue use of any other substance (i.e., marijuana, illegal narcotics, etc). Whether this is your first DUI arrest or your second it doesn’t matter. Why do you need to stop drinking alcohol and using marijuana? You will have to get an alcohol and drug assessment. If you test positive during the urinalysis test, or you tell the counselor you have continued to drink following your DUI arrest then the counselor may find you have a problem. That’s bad. Which brings me to the second thing you should do.

Secondly you need to schedule an alcohol and drug assessment. Why? Unless your DUI charge gets completed dismissed, which is very rare. The Judge is going to require you to get one. You might as well get it done ahead of time. Additionally it gives your DUI lawyer more information to present to the Prosecutor about how you are. Remember all the Prosecutor knows about someone who is charged with DUI is that they drank and drive. They don’t know anything else. The more ammunition your DUI lawyer can go into the negotiation with about your character the better it will be for you.

Lastly hire yourself a DUI lawyer. A lawyer that exclusively practices DUI defense. Not one that does it part time, or one that does it occasionally. One that doesn’t do anything else. Why is this important? Let’s take Seattle for example where I practice. I see Lawyers in Court all the time who don’t do this regularly. They don’t know the Judge, they don’t know the Prosecutor, they don’t know the Court procedures, or even the Cops. And in my opinion as a DUI lawyer who practices in Seattle they are a step behind because of this. And that only ruins their clients chances of getting a reduced DUI charge.

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About the author: Matthew Leyba is a DUI lawyer in Seattle, WA. He has repeatedly named a Rising Star in the field of DUI Defense by the Seattle Met Magazine, an honor only a fraction other Seattle DUI Lawyers receive. He is also rated a 10/10 by Avvo.com and listed as a Superb DUI lawyer.

DUI Advice, DUI Risk, DUI Tips

How to schedule an alcohol and drug evaluation in Seattle for a DUI

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If you have been arrested for a DUI in Seattle or really anywhere in Washington State. Then probably the first thing you will want to do after you hire a DUI Lawyer is schedule your alcohol and drug evaluation. Here is how I recommend you go about doing that.

First speak with your DUI lawyer. Most DUI Attorneys including myself have a specific alcohol and drug evaluator we exclusively deal with. If your DUI Lawyer doesn’t have a specific evaluator then you probably hired the wrong person. But if they defend enough DUI cases and has the appropriate amount of experience in this area of law they will be able to point you in the right direction. For example the treatment agency I work with for my alcohol and drug evaluations are honest and I know they are not going to screw over my clients. Additionally I speak personally with the evaluator and we often times come up with a plan that makes sense for my client.

Secondly you probably want to find a place that only does the alcohol and drug evaluation not the treatment portion as well. Why? Well in my years of experience as a DUI Lawyer in Seattle many of the treatment places take advantage of individuals looking for an evaluation especially if they also do the treatment portion of the program. If you think about it this area is ripe to be taken advantage of financially. Let’s say you get a DUI. You decide to go to an alcohol and treatment agency for the DUI evaluation. The counselor says you have a problem and by they way you’re going to have to do 1 year worth of treatment and that will cost you $2500. And by the way you can do it here. I have seen this happen many times in my career and that is why I only work with specific places that do not do the treatment portion.

Lastly you will want to consider doing the evaluation in the County where your DUI case is, sometimes even the City. For example let’s say you get a DUI in King County or Seattle. The treatment agency I recommend does most of their evaluations in King County and specifically Seattle. So pretty much every Judge has heard of this place, they respect their work and will not question it. Why is this important? I have been in Court before and seen other defendants (not my clients) hand forward an evaluation for their DUI and the Judge has never heard of the place and they don’t accept it. Now not only is the defendant going to have to find a new place but they are out of the money they spent on the evaluation that got turned down. And they run the risk of going to a different treatment agency that makes a different finding in terms of treatment and they are stuck with it.

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About the author: Matthew Leyba is a DUI Lawyer in Seattle. He has been named a Super Lawyer Rising Star by the Seattle Met Magazine the area of DUI Defense, only 2.5% of all Lawyers in Washington State receive this honor. Additionally he is rated as a 10/10 and listed as a Superb DUI Lawyer by Avvo.com a national lawyer rating service.