An article was posted in today’s Seattle Times titled, “Ignition-Lock reality,” that discusses some interesting ideas regarding how to enforce and make sure people required to have ignition interlock devices installed in their car actually have them installed. This stems from an incident last week where a man with multiple DUI convictions was driving without a required ignition interlock in Seattle, struck and killed several pedestrians, severely injuring a mother and child. There is an allegation he was over the legal limit and his ability to drive was impaired due to alcohol consumed.

Obviously this is a tragic event and my heart goes out to those families that lost loved ones because of this accident. It particularly hits home for me because my family and I live in that area where the accident occurred, and my wife and I have crossed that street with our young daughter. Now the purpose of making this post is not to discuss what this guy did. I try not to blog about current cases out of respect for the legal process, the defendant, the prosecution, and the victims. But I did want to discuss a point that was raised in this article. Should law enforcement check on every individual required to have an ignition interlock device to make sure they are installed in every vehicle they drive and the individual is in fact using them.

Unfortunately I do not believe this will ever happen. Not because it is a bad idea, or infringes in peoples constitutional rights. But simply due to the cost. I don’t know or have any figures on this. But to dedicate a program where the sole mission is to check on people who have been ordered to install ignition interlock devices would be extremely time consuming and costly. When you factor into the number of DUI arrests that occur in Washington State that require people to have some type of restricted license, that is a lot of cases. I just don’t think something like this would ever be feasible.

The other issue I see in addition to the cost and time is how it would be enforced. Let’s assume someone has the IID installed in their vehicle. But they have several vehicles. A program like I describe above exists. The police check on this person, see they have an IID, and conclude the condition is satisfied and move onto to the next case. That person then uses another vehicle to drive without an IID and nobody ever knows. Or let’s say a person doesn’t own a vehicle so they decide to sit out the license suspension and choose not to drive initially. But one night they get their hands on a vehicle and drive without the ignition interlock device. My point is there is nothing law enforcement can do. If somebody wants to drive without an ignition interlock device they will do it. It is that simple. And in the unfortunate situation where somebody is injured, people are going to wonder why no IID was installed. Because there is just no way to monitor someone 24 hours a day.

Now this article seems to suggest that a majority of people are choosing not to install an IID when required. I can’t speak for that, I can only speak in my experience. In my career as both a public defender, and private Seattle DUI Lawyer I can only think of one or two individuals who did not get the IID installed when required. Maybe there is more and I never knew about it. But over 8 years that is a good chunk of people. The reason I think my clients do what is required, is because they understand all the consequences before agreeing to do something. When they are first arrested I go over every possible scenario, explain what would be expected of them if a particular situation arises, etc. I tend to think that most people in Washington State are responsible citizens of this State and if the DOL or Court requires it they do it. So I’m not sure what this article is getting at, but that is just my opinion.

If you have any thoughts on how to make such police check on IID program work, write a comment. Or if you feel it would be an unconstitutional search let me know.

If you read this DUI blog with any regularly then you know there are two types of sentences imposed when a person pleads guilty.

There is a suspended sentence and there is a deferred sentence. A suspended sentence means the charge imposes a sentence at the time of the sentencing, but suspends all or a portion of the jail and fines and hangs over the defendants head for the period of jurisdiction. At the end of that period the case is closed, but the conviction still exists on the defendants criminal history.

A deferred sentence on the other hand is a much better deal. Essentially the a defendant will still plead guilty but a Judge will not impose a sentence at the time of sentencing, and instead will defer it for a period of time. Then at the end of that period if the defendant has complied with whatever terms the Judge set at the time of the sentencing, the defendant can take back the guilty plea and the charge will be dismissed.

Currently this is one of the best deals out there if arrested for a DUI and the charge gets reduced to the lesser offense of Negligent Driving 1. Most Judges, and Courts do not offer such a deal, but there are some occasions when it can be obtained. In fact in 2012 I had 10 clients who received such a deal where the original charge of DUI was reduced to Negligent Driving 1, and the Judge imposed a deferred sentence.

Now in addition to the benefit of having the charge dismissed. Receiving a deferred sentence on a Negligent Driving 1 does not count as a prior offense. Well it is debatable I guess. Prosecutors will argue it does. Defense Attorneys argue it doesn’t. The RCW spelling out what is a prior offense does not include the language “deferred sentence.” So based on a plain reading of the statute it doesn’t count as a prior offense. Meaning if a defendant successfully completed a deferred sentence on a Neg 1, and then within 7 years received another DUI. That subsequent DUI would be considered a first offense.

However there is currently a bill in the House of the Washington State Legislature proposing a change to this little loophole. HB 1482 proposes amending the language of a prior offense under RCW 46.61 to include deferred sentences. This is an interesting development. I tend to not agree with such a change.

First a deferred sentence is pretty rare. It generally is only granted when it is a first offense, no prior criminal history, low breath test, and the defendant has completed all the assessments, and classes. Secondly even if a Judge grants a deferred sentence, and the defendant completes it, but then gets another DUI. The Judge of the subsequent DUI still has the discretion to treat the subsequent DUI has a second offense, in fact they could impose whatever sentence they want. And if I had a client who was in that boat, I would probably tell them there is a strong possibility the Judge would do that, considering they were already given a break the first time around.

In my opinion the only reason for proposing such a change is purely punitive. Not surprisingly the sponsors of this amendment seem to be very “Prosecutorial friendly” if you know what I mean. Hopefully this bill does not go any further, but I guess we will see at the end of this legislative session.

Matthew A. Leyba is a DUI Attorney in Seattle, WA. His practice focuses on representing those accused of DUI and other traffic offenses.

In case you have not seen or heard about the “Adios girl.”  Here is what happened.  An 18 year old young woman was in custody in Florida on drug possession charges.  She must have been appearing at some kind of first appearance calendar where PC to hold is found, or a bail hearing.  Anyway there is a video of it, and it has become a viral sensation.

Basically the woman appears in front of a Judge.  She is laughing, playing with her hear, and kind of flirting with the Judge in her own weird way.  The Judge takes this as a sign of disrespect, and sets her bail at $5000.  He then says “bye-bye.”  She responds by saying “Adios,” as she is walking away.  The Judge then gets mad over this comment and calls her back in front and doubles her bail to $10K.  He then dismisses her and says, “Adios.”  She gets outraged by this increase in bail, and says F- You to the Judge before flipping him off.  He then calls her back and immediately sentences her to 30 days in custody for contempt in court.

Clearly this woman lacked any kind of manners, or common decency.  I mean I understand you’re pissed off that your in jail.  But it is probably not a good idea to piss off the one person who is deciding whether to keep you in custody or not.  Below is a picture

This spectacle reminds me of case I once saw.  It was back in Seattle Municipal Court.  It must have been 6-7 years ago.  Anyway I remember it was in front of this Judge who was very similar to the one from this video.  Often times he would just go off on defendants.  Impose year long sentences from the stupidest things.  Frankly I don’t know why it took him so long to get voted off the bench.

But anyway I digress.  I remember this incident like it was yesterday.  It was the day before Christmas.  The afternoon calendar.  Nobody was really there, it was pretty light.  The case was where some defendant was trying to fire his public defender because he wanted his misdemeanor charge to be a felony so he could have a twelve person jury instead of six.  I know it sounds crazy, but this is what the defendant really wanted.  Anyway he started to argue with the Judge about the twelve person jury thing.  I remember the Judge took his fingers and put them in his ears and starting singing, “Nah Nah Nah I can’t hear you.”  It was really quite funny.  It was kind of like this Judge was saying, “nener-nener” like a little kid.

The Judge then told the defendant to shut up and he was done talking about this hearing.  As the defendant was being hauled back into custody he said something to the Judge.  I want to say it was an F-bomb, but I cant exactly remember.  The Judge then calls the defendant back into custody and imposes a sentence of 1 year.  Even though the defendant hadn’t plead guilty or anything.  This was still in the pretrial stage.  Both the defendant attorney and prosecutor told the Judge I don’t think you can do that.  But he said I don’t care and stormed off the bench.  It was really bizarre and as everyone in the courtroom was left wondering what the hell just happened.

So what is the point in bringing all this up other than for the humor.  Well the moral of this story is very simple.   Don’t piss off the Judge who is presiding in your case.  Whether you’re at a bail hearing.  Whether you’re at a motion hearing.  Or whether you’re at a sentencing hearing.  Judge’s are human too.  They let things get to them.  Their buttons can be pushed.  And like everyone else they can act irrationally.

As a Criminal Defense Lawyer the first thing I always tell clients before they appear in front of a Judge is to act in a respectful manner.  Judge’s eat that stuff up.  Particularly this is very important before we do a sentencing hearing.  I always tell my clients the same thing.  “After the Judge is done speaking with you about the plea form, they will ask you if you have anything to say regarding sentencing.  You can choose to say something or choose not to.  If you don’t feel like you should be here, or this whole situation is BS.  Then it is probably best to keep those thoughts to yourself and not say anything.  Remember this is the person that can decide whether you stay out of jail or go to jail for a long time. It is best not to piss them off right before they sentence you.”

Someone should have told Ms. Soto this before she appeared in front of that Judge in Florida.  Poor girl now has to sit in custody for 30 days because she was acting like a brat.

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Matthew A. Leyba is a Seattle DUI Attorney in Seattle, WA.  His practice focuses on representing those accused of DUI and other serious traffic offenses.  If you have been arrested for DUI contact our office immediately for a free no hassle consultation.

Now that Marijuana has been legalized in Seattle it was only a matter of time before someone decided to do a “wet lab” in Seattle with Marijuana and publicize the results and findings. If you don’t know what a “wet lab” is. Its a training that police officers do to help with alcohol impairment detection. Basically they go to a location, and some volunteers get drunk. Then the Officers administer the field sobriety tests to the impaired individuals just to get an idea of what it is like investigating people out in the field.

The reason I’m talking about this wet lab stuff is recently a local news station here in Seattle decided to run a little experiment on Green DUIs. They got some volunteers together and had them drive in a closed obstacle course completely sober.  No alcohol, no marijuana. Then they had these people smoke a little marijuana, drive some more, then smoke some, then drive again. I don’t know a lot about marijuana since I don’t smoke it.  But the name of the strand was pretty cool. It was called blueberry train wreck. Each time after the volunteers drove, their blood was taken, and their results from the driving were noted.  Also the news station had a drug recognition expert there to determine in the field the level of impairment.

Some of the results and observations from the “study” were pretty interesting. Remember the legal limit for Marijuana in your system in Washington State is 5 nanograms.  During the experiment there were three drivers. They were tested before driving the course the first time. They were then given marijuana and asked to drive the course a second time. Their results were compared, along with the different levels of marijuana after a blood test. In some cases they were given even more marijuana and asked to drive the course 3 to 4 times.

The first driver was a medical marijuana patient who smoked heavily before the experiment. Before she even started the experiment she was at 16 nanograms from her daily smoking. So FYI if you smoke a lot it takes a long time for you to get Marijuana out of your system and you’re most likely operating at the legal driving limit on a daily basis. I’m talking to you heavy pot users. Surprisingly though the instructor said her driving was fine.  It was until she got to 1.6 grams that she started to show signs of trouble.

The second driver was a casual pot smoker who smoked on the weekends. The initial test showed no marijuana in his system. He was then given three tenths gram of marijuana to smoke. His driving was actually pretty good, not revealing any significant decrease in motor skills. He was then given nine tenths a gram and continued to drive. At the end of the experiment he was 26 nanograms. Towards the end of his driving he showed more and more problems driving. At one point almost hitting a photographer.

The third driver was an occasional pot smoker. He also showed no marijuana in his system during the initial test. He was given the first batch of marijuana and again did not show any decrease in motor skills, although it was noted he was driving a little slow. However like the second driver the more he was given, the more problems in the driving occurred. At the end of the experiment his level was 21 nanograms.

So what do I take from these results. Well to be honest this just affirms the same opinions I had of this so called legal limit when the 502 was initially passed. It is too low.

First if you’re a daily pot smoker, you operate at the so called legal limit every day. Meaning every time you drive chances are you’re over the legal limit and subject to an arrest for a Green DUI.

Secondly based on the driving of the second and third drivers when you’re at the so called legal limit there is not much of a decrease in motor skills. It was not until those individuals were at 4 times the legal limit they showed obvious signs of impairment and difficulty driving.

Lastly, and probably the most interesting is the daily pot smoker, even at higher levels she did not show any signs of impairment from the driving.  In fact the instructor said her driving was fine, and she was borderline whether she would even get pulled over.

If you want to check out the article and see the footage then you can watch, Its titled, How High is Too High

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Matthew Leyba is a DUI Attorney in Seattle, WA. His practice focuses on representing those accused of DUI and other related offenses.

Since the legalization of Marijuana in Washington State approximately 130 DUI arrests have been made for those allegedly impaired by Marijuana and that number is increasing every day. This new DUI charge is now being referred to as a “Green DUI.” If you were arrested for a Washington State Green DUI in December 2012, then chances are you DUI charge is in the pipeline and charges will be filed against you any day. Why does a Green DUI take so long to be filed, when an alcohol DUI can be filed the next day after the arrest? Well the simple answer is it takes time to have a blood sample analyzed.

What is the process for a Seattle Green DUI arrest. As noted above after an arrest for a Green DUI then the suspect is given the opportunity to provide a blood sample. Once provided the sample is sent to the Washington State Toxicology Laboratory and analyzed by a Toxicologist. Those results can take anywhere from 1-3 months to get back. Depending on the volume of cases at the Toxicology lab, and the order the sample is received. Once those results come back they are sent to the appropriate Prosecutors Office.

So let’s say you were arrested on I-5 by a Washington State Trooper in King County. That means your King County DUI would be filed by the King County Prosecutors Office. So after the blood test results come back they are sent to the Prosecutors office. A prosecutor will then review the blood test results, review the police report, and any other evidence submitted by the arresting agency. If the Prosecutors feels they can prove a Green DUI charge beyond a reasonable doubt then they will file charging documents with their records department. The records department then provides that to the Court that would have jurisdiction. The Court then sends notice to the defendant of their arraignment and the criminal process starts.

Defending a Green DUI is drastically different than an alcohol related DUI. Prior to creating a legal limit, Green DUI’s were fairly easy to defend. There were so many different views, and medical opinions on what constituted impairment. For every expert the Prosecutor provided, the Marijuana DUI Attorney would counter with an expert of their own. However with this new per se law a Marijuana DUI is going to be more difficult due to just the legal limit. But like an alcohol related DUI, there are still ways to prepare a defense for this type of charge. Thus it is extremely important to hire an experienced Seattle DUI lawyer to properly prepare a defense.

Matthew A. Leyba is a DUI Attorney in Seattle, WA. His practice consists of representing those accused of DUI and other alcohol related offenses. If you have been arrested for a Green DUI or an alcohol related DUI contact our office immediately to set up a free consultation.

Part of my job as a DUI defense attorney in Seattle is to stay up to date on any changes in the law. This can occur one of three ways. First I like to keep an eye on rulings from the district court trial level. What Judge granted what motion, what Judge denied what motion. How is a specific court handling other issues involving DUI’s. This is fairly simply to do since I am in court almost every day all over the state. Im also a member of some email list serves that often update defense attorneys on the happening in court. The second way I stay up to date is follow the Washington State Legislation. Changes in legislation can have a big impact in my practice. Specifically this last legislation session there were some big changes made, that I have previously blogged about. The last way I keep up to date on issues is by following the Appellate level, and rulings from the Washington State Supreme Court. Recently a ruling that I don’t agree with came down from the State Supreme Court. I feel it is worth blogging about so here is the gist of it.
State of Washington v. Gilberto Chacon Arreola. The facts of the DUI case are the following. Mr. Chacon was driving Mattawa, WA. Earlier a 911 caller called the Mattawa PD to report a possible DUI driver. Officer Validivia responded to the car and located Mr. Chacon. Officer Validivia followed Mr. Chacon for almost a mile and did not observe any signs of possible impairment. There was no weaving within the lane, no swerving or crossing into the other lanes of traffic, no other erratic driving to suggest the driver a DUI. However Officer Validivia continued to follow the vehicle and observed the muffler had been modified. Based on this he decided to stop the vehicle because in his words, he is a member of the community and does not appreciate the sound an altered muffler makes.

So long story short, he stops the vehicle. Observes signs of impairment and Mr. Chacon is arrested for DUI. The heart of the issue is whether this sounds like a pretextual stop. If you remember from a previous blog I wrote. A pretextual stop occurs when a police officer contacts an individual with the intention of investigating an unrelated crime, and justifies the stop by saying some minor infraction occurred. These issues are pretty difficult to prevail on just because deference is usually given to the Officer and if they are smart they can word their report in a way to make it sound like they are just conducing routine traffic patrol, and happen to stop a vehicle that turns into a criminal investigation.

So what did the Supreme Court say. They said this is fine. In fact the holding was, “a mixed-motive traffic stop is not pretextual so as long as the desire to address a suspected traffic infraction for which an officer has a reasonable articulable suspicion is an actual, conscious, and independent cause of the traffic stop.” So in this case because Officer Validivia testified that he routinely stops vehicles for altered mufflers, and that is all he was doing in this case, the stop is justified.

I wish the defense would have looked into how many stops Officer Validivia has actually made for altered mufflers. Because I would venture to guess probably not many, if he has even made one before. So using the altered muffler as an excuse to stop someone is BS in my opinion. But I guess it worked, since it is now okay to do so.
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Matthew Leyba is a Seattle DUI lawyer in Washington state. His practice focuses on representing those accused of DUI and other serious traffic offenses. He has a high success rate in defending DUI’s that routinely result in reduced charges and/or dismissed offenses. If you have been arrested for a DUI in Seattle contact our office immediately for a free 60 minute consultation.