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

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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.

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FAQs of a Seattle DUI Arrest

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If you are reading this you have probably been recently arrested for a Seattle DUI or know someone who has, and you have many questions. As an experienced DUI attorney, I have heard all the common questions related to DUI arrests. Continue reading as I cover the frequently asked questions of a Seattle DUI arrest.

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I’ve been arrested for a Seattle DUI. Now what?

You’ve been arrested, given a field sobriety test, taken to the police station, and asked to provide a breath or blood alcohol test. Your vehicle may have been impounded requiring you wait at least 12 hours to get it out and costing hundreds of dollars to do so.

You are probably confused as to what happens next. The first thing you should do is talk with a Seattle DUI attorney. Find an attorney that is experienced in DUIs as well as the the city of the arrest. Having an attorney that is familiar with the court system of your city and knows how to best represent your case can make all the difference in the outcome.

After researching and talking with a few different Seattle DUI attorneys, hire an attorney that best fits your needs. Research attorneys thoroughly but don’t wait too long to hire. It is important that your attorney has plenty of time to research and prepare for your hearing.

After being arrested, you should have received the Department of Licensing (DOL) Administrative Hearing Request Form. You have 20 days from the date of arrest to request your hearing. Working with an experienced DUI defense attorney will increase your chance of beating a license suspension, as well as give you advice on steps to take if your license is suspended.

What are the consequences of a Seattle DUI conviction?

Washington state DUI laws are some of the toughest DUI laws in the country. A DUI conviction carries mandatory penalties including jail time, license suspension or revocation, probation, and possible ignition interlock device use. Along with the mandatory penalties of a DUI conviction comes fines, court costs, and fees.

In Washington State, the mandatory fines are given based on the BAC ( blood alcohol concentration) level, whether there was a refusal to take the BAC, or the number of prior offenses. The penalties will be more severe if the BAC level was above .15 or the BAC was refused. A prior DUI offense within seven years of your arrest date may result in an increased mandatory sentence. Read more about DUI penalties here .

Is a DUI a felony?

In Washington a first offense DUI is not a felony, it is a gross misdemeanor. However, a DUI can be charged as a felony if a driver has 4 or more prior convictions within a 10 year period or if someone is injured or killed in the same incident as your DUI charge, or if the driver has a prior vehicular assault or vehicular homicide offense. Although a first offense DUI in Seattle is not a felony, the penalties can still be very serious, including losing your license, having to report the conviction to employers, and possible jail time.

How do I find a Seattle DUI attorney to help me?

Choosing a Seattle DUI attorney can be an intimidating task. It is important to ensure you choose an attorney that is experienced in DUI cases as well as the court system at which your hearing will take place. When choosing a DUI attorney it is important to ask the following questions:

  • Where did you attend law school?
  • How many years have you been in practice?
  • How much experience do you have with DUI cases?
  • How many cases have you taken to jury trial?
  • What is your assessment of my case?
  • What would be the final outcome of my case?
  • Will you personally be handling my case or will it be someone else?
  • What are your fees?

If you still don’t feel fully convinced that an attorney is right for you, you can ask to talk with previous clients.

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How do I fight the license suspension?

Whether you take a breathalyzer or blood test and register a .08 BAC or greater, or you refuse the take the breathalyzer or blood test, the DOL will initiate license suspension procedures against you. You will be required to request a hearing with the DOL within a required period of time to obtain a hearing and challenge the suspension. If you do not file your hearing request in time, you will lose your right to challenge the license suspension and in turn have your license suspended.

A Seattle DUI attorney can help answer any questions you may have in regards to your DOL hearing, as well as how to best approach your license suspension challenge.

What are Field Sobriety Tests?

Field sobriety tests are standardized tests that test the sobriety of the accused driver. These tests include:

  • Horizontal Gaze Nystagmus
  • Walk and Turn
  • One Leg Stand
  • Portable Breath Test
  • Drug Recognition Examination
  • Non-standardized test (Finger to Nose, Alphabet, Balance Test, Finger Dexterity)

What is a SCRAM device?

A SCRAM (Secure Continuous Remote Alcohol Monitor) device is a bracelet that can detect alcohol from the wearer’s skin. These devices can be an easy and cost effective way to ensure that those accused or convicted of a DUI do not consume alcohol. The ankle bracelets are worn by defendants who are awaiting trial, or those who have already been convicted of a DUI and are on probation.

The SCRAM device is monitored by a company that sends daily reports to probation and law enforcement officials. The bracelets are able to detect a 0.02 alcohol reading through the skin. The device only detects alcohol and does not detect drugs in the wearer’s system.

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Can I enter Canada after a DUI arrest?

Canada considers a DUI or any alcohol related offense stemming from a DUI an inadmissible offense and therefore, you most likely will not be allowed into Canada after you have been convicted of a DUI or even a reduced charge. There are a few ways to work around this restriction; you will either need to be deemed “rehabilitated” or granted a temporary resident permit. A person may be considered rehabilitated if they have no other criminal convictions for a minimum of five years after the DUI conviction.

Should I get an alcohol evaluation?

Alcohol evaluations are conducted by a state certified chemical dependency agency. The evaluations are a series of questions used to determine if a person has an alcohol dependency problem. These evaluations can be scary, but in many cases the evaluations show no alcohol problems in the test taker and will ultimately help with your case.

What is an Ignition Interlock Device?

An ignition interlock device (IID) is a device that requires a breath sample that measures the driver’s BAC before the vehicle can be started. If the test registers a BAC over a predetermined amount, the vehicle cannot be started.

An IID allows a driver to get an Ignition Interlock driver license that allows a driver whose license has been suspended to drive a vehicle that is equipped with an IID.

More Questions?

Being charged with a DUI can be very stressful and confusing. Knowing all the facts and being extremely prepared before your hearing is a must. If you have more questions regarding your Seattle DUI arrest, give Matthew Leyba a call at 206.504.3131 . As an experienced Seattle DUI attorney he would be happy to offer a free 60 minute, no pressure, and completely confidential case consultation.

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Blog, DUI Advice, DUI Tips

Choosing a Seattle DUI Attorney

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Being arrested for driving under the influence (a DUI) in Seattle is a significant and frightening affair. Not only is the whole process complex and detailed, but the outcome of your case can have life altering ramifications. In order to ensure that there is a strong defense and an agreeable outcome to your case, you are going to need an experienced attorney by your side.

The task of choosing a Seattle attorney can seem impossible. With so many qualified and capable attorneys, how do you know when you’ve found the right one?

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Ask Questions

Once you have chosen an attorney, your case is in their hands. But until then, you have complete control over who gets to manage your case. The best way to get information about your attorney candidates is to ask them questions. These questions and how they are answered will reveal their capabilities, tendencies, preferences, and history while allowing you to whittle down your list to a one attorney. Here are some questions you can ask to start getting information about potential attorneys:

1. Where did you attend law school?

This question is meant to provide you with a general look into the kind of school each attorney graduated from, the training they’ve received, and the experience they had there.

2. How many years have you been in practice?

You want to know how much experience your attorney has with handling cases. A good follow-up question is to ask what kind of work they’ve completed during those years. Long-time lawyers with little experience or success are individuals you should steer clear from. On the other hand, a weathered attorney with a full schedule is a sign of a capability and experience.

3. How much experience do you have with DUI cases?

There are many areas of law, each with their own level of complexity and detail. While some attorneys may claim to be capable in multiple fields of the law, good attorneys will focus their attention on only a few. Your highest priority should be to find a Seattle attorney that is highly educated and experienced with handling DUI cases. If they try and stretch themselves across too many fields, it’s time to move on.

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At Leyba Defense, Matthew Leyba is highly experienced in handling DUI cases. Working exclusively with criminal defense and DUI cases, Matthew Leyba has the professional training, experience, and education necessary to help defend your case.

4. How many cases have you taken to jury trial?

Many DUI cases end up going to trial. In order for your trial to play out in your favor, you need an aggressive and experienced attorney who is committed to meeting your needs and defending your side. In order to attain the outcome you deserve from your trial, your attorney must have the experience required for a successful jury trial.

5. What is your assessment of my case?

You may already have a personal assessment of your case, but it is important to get their opinion. What are the challenges they see to your case? Would they have you plead guilty, or would there be a plea agreement? Do they see your case going to trial? What are they expecting to see at various stages of the process?

As you meet with multiple attorneys, compare and contrast their assessments. Is there a common theme, or do they all see your case from different angles? Which attorney demonstrates the best knowledge and experience when it comes to handling your situation?

6. What would be the final outcome of my case?

When everything is all said and done, you want to be sure that the attorney you choose is willing to go the distance. After assessing your case, are they willing to dive in and get their hands dirty to ensure that your rights are protected? Or do they look for the easy way out?

If the attorney’s desired outcome does not match your goals for your case, don’t be afraid to move on. Remember, your case is still in your hands. Don’t give it away to an attorney that is not willing to take your case where it deserves to go.

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7. Will you personally be handling my case or will it be someone else? Can I meet them?

A lot of DUI cases are not directly handled by the attorney, but are instead handed off to an assistant or fellow attorney. You want to be sure that the person your meet and know is going to be the one to carry your case through. If you find out that someone else will be handling your case, ask to meet them too. Don’t trust your case to someone you’ve never met, no matter how fantastic your meeting may seem.

At Leyba Defense, Matthew Leyba is committed to handling all of his cases personally. Without enlisting the help of a secretary or assistant, Matthew Leyba works personally on every case he agrees to take on.

8. What are your fees?

When it comes to rates and fees, every attorney is different. Find out what their general fees are and what they do and do not include in their rates. The total expense can change based on whether they charge a flat or hourly rate. There are even unrelated legal expense that can appear during our case, so getting these questions out of the way early is the best way to avoid future problems.

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Final Questions: For You

At the end of the day, every consultation comes down to your impression of the attorney. It is important to ask yourself the right questions to uncover your real perspective of their experience, education, capabilities, personality, perspective, and goals. Here are some questions that you can ask yourself:

  • What are their strengths? What are their weaknesses?
  • Did they demonstrate confidence?
  • Were they honest?
  • Did they willingly share the information I needed?
  • Were their rates reasonable?
  • Do they have enough experience?

If you still feel unsettled about whether or not an attorney is a good pick, ask to get in touch with some of their previous clients. Few sources will give a more accurate representation of an attorney’s skill than a previous client. Ask them what their initial impression was, how their cases concluded, what their experience was, and if they would recommend said attorney.

Contact Leyba Defense

At Leyba Defense, Matthew Leyba operates as one of Seattle’s most qualified, experienced, educated, and successful DUI attorneys. Matthew’s goal with every case is to ensure that every client is accurately represented and that their rights are always protected. To ensure that clients feel comfortable and informed, Matthew is available 24/7 to answer any questions a client may have about their case.

For more information about Leyba Defense, or to set up a free consultation, call 206.504.3131 or fill out our contact form.

Blog, DUI Advice, DUI Tips

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

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08-300x300One 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.