DUI Probation Review Hearing

Yesterday I appeared on behalf of a client on a DUI probation hearing. This client was not originally mine, but retained me just for the probation review hearing. When I was a public defender I literally appeared on a couple thousand of these types of hearings. They can be pretty simple or they can be very complicated, depending on the allegations and the underlying offense.

For those of you that don’t know what this type of a hearing is. Basically whenever a person is sentenced in a DUI case, it usually is to a suspended sentence. A suspended sentence means that the Judge will suspend a portion of the maximum jail sentence (for a DUI its 1 year) and hold that over your head for the entire jurisdiction of the case (for a DUI its 5 years). Now during this 5 year period, conditions of the sentence are imposed. For example on a DUI case, a person will be sentenced to jail, fines, alcohol treatment, ignition interlock devices, and usually they have to stay out of trouble for the 5 years.

So whenever a person doesn’t comply with the terms of the sentence or they get in trouble again. A Judge will be notified of this and will schedule a DUI probation review hearing to address these issues. And sometimes the allegations of the sentence violation are so serious the Judge will impose a portion or in some cases all of the suspended jail sentence that was hanging over the persons head. This is what recently happened to Lindsey Lohan on her Reckless Driving charge. One of the conditions of her sentence was that she had to stay out of trouble. Now there is a criminal charge of felony theft and the Judge in her Reckless driving case revoked a portion of her suspended sentence. I think it was 120 days or something like that.

Anyway the DUI probation review hearing case I was retained on, at first glance was a difficult situation. The client had been in front of the Judge many times for other Review hearings. These violations ranged from new charges, and not complying with alcohol treatment. And usually when a person appears in front of Judge so many times, the Judge just gets tired of it. They say to themselves that the defendant isn’t taking this seriously, and there is nothing that can be done other than putting the person in jail. And in this particular case this was the likely outcome.

However in the end I was able to convince the Judge to impose 14 community service hours, in lieu of the remaining suspended sentence. How did I do that, you might ask? Like I said, when I was a public defender I regularly appeared on these types of hearings. And learned early on from another Attorney how to handle the Judges in these particular cases. This particular attorney is a good talker and knows how to smooze. I’ll refer to him as Brabazon.

Anyway Brabazon taught me two things with these review hearings. First he taught me how to highlight all the positives the defendant is doing, but at the same time not minimize the current allegations. For example if a person hasn’t been going to treatment. I might say “its important for the court to note that my client hasn’t been in trouble since this incident, and they haven’t relapsed.” “Although treatment is important, my client is not drinking and driving, my client is not committing new crimes, my client is not falling back into their old ways.” Etc, and etc.

The second and probably greatest thing I learned was how to “land on the grenade” for the client. And yes this term was coined way before the Jersey Shore. What this means is as an attorney you have to know when to take the heat for your client. Lots of times in these Review hearings, the Judges are really pissed off and mad at your clients. And you don’t want them feeling that way when they decide what type of sanction to impose. So right before a Judge is going to impose a sanction, and right when they are at their maddest. I was taught to diffuse them. For example in this latest case, the Judge started to say how my client only does things her way, and how the Judge told her at the last hearing that this was her last chance, and how she was going to put in her jail for a year. I then politely interrupted the Judge. Made a small joke by saying, “I appreciate everything the court is saying, and I know that Im coming into this pretty late in the game.” I then went on to tell the Judge that putting my client in jail wouldn’t benefit anybody. That she was doing everything she could, and etc. The Judge then kind of turned her anger towards me, and told me how big the clients case file was, and how many times she has come before her. I just politely said I know, and continued to smooze the Judge. By the time the Judge got back to me client, I had taken all the heat. And 14 community service hours were imposed.

Long story short, if you’re facing a probation violation on a DUI charge. Its important you hire an attorney that knows how to handle these types of cases. Lots of times, private attorneys don’t have very much experience with probation violations, because all their clients do what they are supposed to do. And thus they never learned these tricks and strategies in representing someone on a probation case. Because I was once a public defender, I have tons of experience handling these types of situations. If you have an upcoming DUI probation hearing, please contact my office for a free 60 minute case consultation.

 

Breathing patterns can affect breath test results

A recent scientific article from Forensic Science International confirms something that Seattle DUI lawyers already know, that breathing patterns can affect the result of a breath test in a big way. In “Influence from breathing pattern on alcohol and tracer gas expirograms—Implications for alcolock use”, the Swedish authors conclude from their studies that the measurement of a breath alcohol result is greatly influenced by the timing of the test and the breathing pattern of the person taking the test. Specifically, shallow breathing or hyperventilation can lead to a lower breath test result. Conversely, deep breathing and holding the breath before blowing can lead to an increased breath test result.
There are a couple of points to be made here. First, the machine is supposed to be giving us an accurate measurement of what a person’s actual breath alcohol content is. It should not be too high or too low based on how the person is breathing, especially since everyone breathes differently, and people who have been arrested are often crying, in shock, angry, etc, and not breathing in their normal breathing pattern. This is more proof that the number that the machine spits out is just a “guesstimation,” at best.
Second, police officers that know this information can use it to manipulate test results (just as a subject could). I am able to obtain and watch a video recording of the breath test in almost every Seattle DUI case, which I handle. It is very common to see police officers demonstrate to the subject to how to take a deep breath and hold it, before blowing in the machine. Whether the officer realizes that this can influence the test result, I don’t know. But, it is very, very common. If nothing else, taking a deep breath and holding it tends to heat up the breath to be expired. The machine is calibrated to assume that the expired breath is 34 degrees Celsius +/- .2c. 34 degrees Celsius is 93 degrees Fahrenheit. The human body is, on average, at a temperature of 98.6 degrees Fahrenheit, or 37 degrees Celsius. Expired breath is expected to cool as it leaves the human body, thus the assumption of the lower temperature by the breath test machine. However, if the breath is warmer than 34 degrees Celsius, the test result will be skewed higher. Holding the breath will make it closer to the 37 degrees Celsius of the human body when it is expired.
The bottom line is that there are dozens of variables that can affect what the breath test result is at any given moment. These variables include breathing patterns, body temperature, partition ratio between the breath and blood, inherent margins of error in the machine, the inherent margin of error in the gas or solution used to calibrate the machine, burping, crying, hyperventilating, interfering chemical compounds, voltage fluctuations in the power supply to the machine, radio frequency interference from police radios, cell phones, etc. Every person’s biology is different, but the machine treats everyone as if they were the same. Every person’s breathing pattern is different, but the machine assumes that everyone is breathing the same. Alcohol in the blood is what makes people intoxicated, not alcohol in the breath. The machine has to make assumptions about the breath, and calculations and conversions based on those assumptions to estimate what the blood alcohol content is. The assumptions and estimates these outdated machines make leave too much reasonable doubt in my opinion as to what a persons actual blood alcohol level is and whether they are actually guilty of a Seattle DUI.

DUI arrest may lead to Facebook shaming in California

Attached is a link to an article I read this morning titled “Drunk Driving May Lead to Facebook Shaming”  The gist of the article talks about how a city councilman in Huntington Beach, CA wants to post a mug shot on Facebook of any individual with more than 2 DUI arrests.  In the article council member is quoted as saying, “If it takes shaming people to save lives, Im willing to do it,” “Im hoping it prevents others from getting behind the wheel and getting inebriated.”

As a Seattle DUI Attorney, I found this article very disturbing.  Am I in support of people drinking and driving, no Im not.  However if someone chooses to make that decision, then they are entitled to all of the same constitutional rights that everyone else is afforded in our country.  Mistakes happen, and sometime good people make bad decisions.  However everyone has been there, everyone has made a mistake at least once in their lives and most people feel horrible about it afterwards.  I have been a DUI Lawyer for quite some time and I have not once had a client who told me they didn’t feel bad for the decision they made, and they didn’t regret it.  So its not like people don’t recognize the mistake they made.

But the real disturbing part of this proposed idea, aside from the privacy issues this would raise, how about the presumption of innocence.  I found it interesting this article didn’t talk about prior DUI convictions, but only DUI arrests.  So basically if a person is falsely accused of a DUI, then they can face the humiliation and embarrassment that this would cause simply because they were arrested.  Un-freaking-believable!

Matthew A. Leyba | Attorney