Tag Archives: dui arrests

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

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.

Do law enforcement agencies have a DUI arrest quota system?

One question I have always wondered as a Seattle DUI Attorney is whether law enforcement agencies have a DUI arrest quota system in place.  I recently came across an article apparently confirming they do in Tennessee which makes you wonder.  Is it really that far fetched to think other law enforcement agencies around the Country have similar policies in place?

When I was 16 years old I was pulled over for speeding.  Back in Utah they used to have this program where if you attended a traffic course the ticket wouldn’t be forwarded to your insurance company and wouldn’t even be filed.  I never told my parents about the ticket and just paid for the class and nobody was the wiser.

Basically the class was just a police officer talking to a bunch of people.  It was pretty informal and I assumed was just a way for the City to make more money by charging people for this class in exchange for the traffic ticket going away.  The only thing I remember from that class was the police officer basically confirmed there was a ticket quota in place when somebody asked him.

When I got into DUI Defense as an Attorney in Seattle I always wondered if there was a similar quota in place for DUI arrests.  I imagine all the programs throughout the Country like what we have called Target Zero here in Seattle are based on funding.  And the legislature is not going to fund a program if they don’t see results, that is just common sense.

The article I came across about Tennessee had several anonymous troopers and one retired trooper basically say an unwritten policy on DUI quotas was in place.  If you didn’t have a certain number of DUI arrests you were punished.  From being forced to work night shifts to losing out on overtime opportunities to even being transferred to other districts.

Now I’m not in law enforcement but I would think something like this would be pretty easy to enforce from the higher ups.  An unwritten policy has no paper trail.  And other than transferring a cop to another district all these “punishments” seem like there could be other explanations given that would all seem legit.

Anyway here is the article if you’re interested.  Linky.  Just some food for thought on a cloudy Monday morning here in the beautiful Pacific Northwest.

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About the author:  Matthew Leyba is a DUI Lawyer in Seattle, WA.  He has been repeatedly recognized as one of the best DUI Attorneys in Seattle by the Seattle Met Magazine.  He is also the highest possible rated DUI Lawyer in Seattle according to Avvo.com, a lawyer rating service, which a 10 out of 10 rating.

Is it possible to get a DUI on a Washington State ferry?

If you live in Western Washington than chances are you have taken a ferry in your life.  Whether you live on one of the islands and you needed to come to Seattle, or you just want to take a day trip.  The Washington State ferry system is incredibly convenient and can be like a mini vacation.  Which brings me to the question I posed in the title, “Can you get a DUI on a Washington State ferry?”

There are probably two instances when they may come up.  Either an individual drives onto the ferry and they have consumed alcohol or a driver decides to have a few drinks while on the ferry and then gets into their car when it ports.  Can either one of these scenarios result in a DUI arrest?  The answer is absolutely yes it can.

How is that possibly you ask?  The Ferry is on water, doesn’t a DUI have to occur on a roadway.  Yes, typically a DUI does occur on a roadway.  However the Prosecution can get around the two scenarios I provided above fairly easily in order to provide a DUI or DUI related offense.

For example let’s say one of the traffic control workers directing traffic onto the ferry witnesses some poor driving indicative of alcohol impairment.  The traffic controller witnesses this driving as the vehicle is boarding the ferry.  Simply seeing the driver on the road as the vehicle boards the ferry would be enough to prove the driving occurred on a road.

Secondly let’s say a driver gets onto the ferry.  While the ferry is on the water they head up to the top deck and have a couple of drinks.  A ferry worker observes the driver pounding a few too many beers, stumbling around, and gets inside their vehicle.  The ferry worker could contact the State patrol and have the driver contacted as soon as the ferry docks.  Arguably this would be enough evidence for that driver to be arrested for DUI/Physical control simply for sitting in the vehicle and being in physical control if it meaning they had the capability to operate the vehicle.

So what happens if a ferry worker doesn’t see the vehicle board the ferry.  But after the vehicle is on the ferry as the driver is being directed where to park signs of impairment is exhibited (i.e., a collision occurs). Could this person be arrested for a DUI?  After all these observations were made on the water not a an actual roadway.  Unfortunately the Washington State legislature is determined that all State ferry routes are part of the highway system under RCW 47.39.020.  So a Prosecutor could argue under that statute this driving occurred under the highway system and therefore a DUI can occur.

Now these are a just a few examples I could think of off the top of my head for purposes of this blog post.  It doesn’t mean a driver would be convicted of a DUI or there aren’t any legal defenses that could be asserted such a safely off the roadway, etc.  If you find yourself in one of the above scenarios it would be best to contact an experienced DUI attorney for advice.

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About the author:  Matthew Leyba is a Seattle DUI Attorney.  He has been named one of the top 40 under 40 criminal defense lawyers in Washington State by the American Society of Legal Scholars.  Additionally he has been repeatedly named a Rising Star in the area of DUI Defense by the Seattle Met Magazine, an honor less than 2.5% of all lawyers receive.

Can hiring a good DUI Attorney ever backfire?

Recently I was in a local court in King County when I happened to catch the tail end of a heated conversation between a fellow Seattle DUI Attorney (who is well respected among defense attorneys) and a Prosecutor. Afterwards I was just shooting the bull with this particular Prosecutor when they told me something interesting. They told me everybody in their office dislikes that DUI Attorney and they will never give any of their clients a break because of it.

Now this got me thinking. Here is a DUI Attorney who has a very good reputation among the defense bar. However because of how that Attorney practices law and how they deal with Prosecutors all of that Attorney’s clients will suffer because of it. It’s an unfortunate set of circumstances but that particular DUI Lawyer has nobody to blame but themselves.

So where does that leave their clients. They have no idea this particular DUI Defense Lawyer has pissed off an entire office and in the end they will suffer. So if you’re looking for a DUI lawyer how do you go about making sure the lawyer you hire will not backfire due to their reputation.

Personally I don’t know how a client would figure that out. Probably the easiest way to determine the relationship between a Prosecutor and a DUI Attorney is to flat out ask. Although I’m not sure a defense attorney would admit to having a strained relationship with a particular Prosecutor. So how do you find out.

The best way I could think of would be to look at two things: How many trials is the DUI Lawyer doing compared to the number of favorable plea deals they are getting. For example if you look at 10 cases and the DUI Attorney has gotten reduced charges on 7 or 8 and went to trial on the remaining that is a pretty good record. However if they go to trial on 7 or 8 and only gotten plea deals on 2 or 3. That should tell you something.

Now don’t get me wrong. If a DUI lawyer is going to trial 7 or 8 times out of 10. That is really commendable. That means the lawyer is not just pleading people guilty. However the question to ask is why are they going to trial so much, how come they can’t get their clients deals. Have they ruined their relationship with Prosecutors to the point they get “blacklisted?” In the case of the DUI Attorney I described above it sounds like that is whats happening to them and subsequently it is unfairly affecting their clients. And that’s a shame.

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About the author: Matthew Leyba is a DUI Lawyer in Seattle. He has been repeatedly named a Rising Star in the field of DUI Defense by the Seattle Met Magazine, an honor only 2.5% of all Lawyers receive. Additionally he is rated a perfect 10 out of 10 by Avvo.com and listed as a Superb DUI Lawyer.

Washington State DUI arrests decrease after liquor sales privatized

I recently was checking out news articles trying to think of a new topic for my DUI blog.  And I came across this gem.  It’s from mynorthwest.com and discusses how since Washington State has gotten out of the liquor store business and liquor sales have become privatized (meaning if you want a bottle of scotch all you have to do is go down to your local QFC), DUI arrests have actually decreased surprisingly.

I remember when this initiative was on the ballot.  All you would hear from opponents of this measure was how alcohol killed more children than any other drug, and then you would hear from some parent who lost a child to a drunk driver.  A pretty powerful message if you ask me.

Well according to this article.  Between June 1, 2011 and June 30, 2012 there were 21,577 DUI arrests and 2,575 collisions related to alcohol, according to data from the Washington State Patrol. There were 19,703 DUI arrests the following year – June of 2012 through June of 2013 – with liquor sales in grocery stores and other retail businesses. The state patrol reported 2,347 collisions in that time frame.

So by those calculations.  The amount of DUI arrests and collisions on Washington State actually decreased.  Which brings me to my next point.  Lately here in Washington State and specifically King County there has been a lot of negative media towards the existing DUI laws.  People want the laws changed, they want increased penalties, they want DUI offenders put in jail, etc.

Despite being a DUI lawyer in Seattle, I’m not in favor of drunk driving.  In fact my wife and I have a strict zero limit if we are going to consume alcohol.  This has more to do with the fact you can get arrested for a DUI in King County if you’re below the legal limit more so than our personal views.  But in my opinion changing the laws is not going to deter people from drinking and driving.  Unfortunately I have no idea what will, but standing on a podium screaming at the top of your lungs about how evil it is to drink and drive and demanding change is not going to work.

Short of requiring ignition interlock devices in every vehicle manufactured or prohibition I have no clue what is the right course of action.  But I do know that all the statistics that are being cited, all the hysteria over changing the DUI laws is not going to work.  Heck you would have thought that DUI arrests would have increased following the privatizing of liquor sales in Washington State, yet they didn’t.  It just goes to show you that sometimes the group think is not always right.

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About the author:  Matthew Leyba is a DUI lawyer in the Seattle Bellevue area of Western WA.  He has been voted as a Rising Star in the area of DUI Defense by the Seattle Met Magazine, an honor less than 2.5% of all Attorneys receive.  Additionally he is also rated as a 10/10 Suburb DUI lawyer by Avvo.com