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Tuesday, August 19, 2014

A Travesty of Justice is Happening in the King County District Court of Seattle!


In the past several years I have seen an increasing number of DUI cases proceed to jury trial, even on a first offense.  Prosecuting attorneys across the state are becoming more stringent with negotiating DUI cases, even more so than serious felony offenses such as rape, assault, sex crimes, etc.  Essentially the government has taken the position that DUI defendants in Washington are nearly equivalent to defendants having been charged with a serious sex crime!  Does that seem like an exaggeration, well it isn’t.  For example, the King County District Courts in Seattle are so backed up with DUI cases that have not been resolved, that the judges are implementing a little know provision under the speedy trial rule that other judges in the state have never even heard of, it is called the cure period.  The time for trial is regulated by CrRLJ 3.3 and the very first provision of that rule states:

(a) General Provisions.


(1) Responsibility of Court. It shall be the responsibility

of the court to ensure a trial in accordance with this rule to

each person charged with a crime.

CrRLJ 3.3 (a)(1).

Now when a defendant cannot be brought to trial under the normal provisions of 3.3 then the court may, notice I did not say shall, but may, in its discretion add up to an extra 28 days of time.  Here is what the time for trial cure period provision says:

(g) Cure Period.  The court may continue the case beyond the

limits specified in section (b) on motion of the court or a party

made within five days after the time for trial has expired.  Such

a continuance may be granted only once in the case upon a finding

on the record or in writing that the defendant will not be

substantially prejudiced in the presentation of his or her

defense.  The period of delay shall be for no more than 14 days

for a defendant detained in jail, or 28 days for a defendant not

detained in jail, from the date that the continuance is granted.

The court may direct the parties to remain in attendance or be on-

call for trial assignment during the cure period.

CrRLJ 3.3 (g).

Now does the court adding time a defendant’s time for trial happen often, the answer is a resounding yes!  It happens every single day in King County District Court Seattle.  This addition of time is now the norm, it is not really even utilized as a discretionary ruling at this point it is being utilized by the court to accommodate the fact the King County Prosecuting Attorney’s Office has purposefully backlogged their caseload to the point of overwhelming congestion.  Defendants and their attorneys on a DUI will normally appear about a dozen times even if they are simply trying to get out to trial.  The court is implementing this portion of the time for trial rule in an abuse of discretion in my opinion.  CrRLJ 3.3 (g) clearly states that the court “may” continue the case beyond the time periods for up to 28 days.  The rule states further that the continuance shall not be for more than 28 days (for those out of custody). 

The court in Seattle is now imposing an automatic 28 day period, it is not implementing the rule correctly, that is, to place a case on standby and see if a courtroom opens up.  The reason the rule is being implemented is due to the backlog of cases, directly related to the prosecuting attorney’s office’s policy of now not negotiating even the most minimal of DUI cases.  For example a person charged with a DUI and with a BAC of below .08 is now being forced to jury trial in an effort to resolve their case.  There are no more first bites of the apple for a DUI defendant.

I’m a defense attorney and some might assume I condone drunk driving, I clearly do not.  But I also understand that not every single DUI defendant deserves to have to go through a jury trial when the legislature quite clearly created an avenue for the resolution of cases under RCW 46.61.5055.  For example, a DUI case can be amended to Reckless Driving or Negligent Driving in the First Degree.  In both of those instances, there are restrictions on a person’s liberty and they are under the jurisdiction of the court for up to 24 months.  The defendant must also pay fines and fees to the court, obtain an alcohol/drug evaluation, at a minimum attend an alcohol class or further treatment and a DUI victim’s panel.  A person convicted of a Reckless Driving is also subject to a 30 day license suspension and requirement for SR-22 (high-risk) insurance for three years.  In both cases, the State typically asks the defendant to complete at least one day of jail which is either converted to a day of work crew or community service.  So, the DUI defendant is not getting away scot-free.  The reductions are also considered prior offenses, meaning that if the individual is again charged with a DUI in the next 7 years (from date of violation) and are convicted they face increased penalties (at least 30 days in jail and 60 days of electronic home detention). 

The policy of the King County Prosecuting Attorney’s Office doesn’t really make sense because clearly every DUI case cannot be taken to trial, and believe it or not, some defendant’s cases result in not guilty verdicts.  The KCPA is basically taking the position that if the jury finds the defendant not guilty then it is on the jury and the office essentially washes it hands of any “responsibility” for the end result.  Is that really the case, no it isn’t.  With a Not Guilty, the jury concludes that the KCPA had such a weak case that it should never have been brought in the first place.  Remember all six jurors must agree unanimously.  When six people unanimously agree that a DUI didn’t occur, then quite clearly that case should have been dealt or never even filed in the first place. 

The point of this article is that the Court, in collusion with the King County Prosecuting Attorney’s Office, is improperly extending the time for trial of DUI Defendants due to the backlog of cases created by the KCPA’s policy of not dealing any DUIs.  The legislative history of the “cure period” portion of the time for trial rule did not envision this particular use.  I believe the Washington State Supreme Court will be appalled at the court’s activities of extending speedy trial under these conditions once it is finally addressed.  The rule was meant to be implemented when some extraordinary circumstance caused a case to extend beyond speedy trial.  It was not meant to be applied “just because” there are no courtrooms to hear a case on the day speedy trial expires.  When speedy trial expires, if there is no good reason for that happening (more so that just court congestion due to an uncompromising prosecuting attorneys’ office), the case must be dismissed under the rule.  It is a shame when judges cave to the demands of the KCPA.  No one condones DUIs, but in reality many criminal cases of all sorts are amended to reach a resolution, that is reality. 

I’ll leave you with this fact, a defendant in Kirkland, WA was charged with First Degree Murder for sneaking into a neighbor’s home and stabbing her to death.  The KCPA charged that individual with First Degree Murder but then amended it to Second Degree murder.  The murder suspect got a deal, plain and simple, but anyone charged with DUI (a misdemeanor by the way) will get no reduction.  Isn’t that a bit out of touch with reality?

Monday, August 18, 2014

Good marketing versus Great Lawyering - who do you want standing with you in court?

In this day and age of social media, easy access to hundreds of potential lawyers, doctors, plumbers, etc. marketing a business is extremely valuable and necessary.  However, in the context of what is a good law firm or doctor, etc. versus what is a snappy marketing campaign the user/client can become sucked into the hype. 
 
A great marketer is going to make that businesses ROI shine but a great marketer does not make a great lawyer or doctor or plumber or restaurant.  How many times have you been to a restaurant based upon the advertising of that restaurant?  What about choosing a profession service such as a doctor or lawyer?  Would you really select a professional service based upon a clever website, a letter sent to your home, or catchphrase you hear on the radio?  Is that smart?  Does that indicate the professional service has integrity or has produced positive results.  Of course it doesn’t.

I have heard professional services advertising using snappy 1-800s on the radio but that snappy number and advertisement does not mean you are going to receive competent and articulate service.  I have a 1-800 number but it doesn't in an of itself tell a client I'm a great DUI attorney does it?  What does is Results, period!


It is really amazing how our minds can be influenced by simple phrases or marketing gimmicks, but that is how advertising works.  The internet is a valuable asset for a professional service but good old fashion word of mouth is really a key element when selecting a professional.  I know I wouldn’t choose an eye surgeon because he or she had a great 800 number catchphrase, so should you choose a great lawyer based upon snappy, witty, clever advertising or based upon results.  It’s obvious what you should do when selecting an attorney, look at their results.

My suggestions is that you be very cautious about getting roped into clever advertising when you are looking for someone to assist you with a criminal case.  I 800 DISMISSED or something similar doesn’t for one minute mean the lawyer on the other end of the phone is competent, it just means he/she is an effective marketer.  Do you want a good marketer standing in court in front of a jury or a great lawyer? 




DUI Blog on Marketing vs. Lawyering

Wednesday, August 13, 2014

Persistence is key with any DUI case!

Recently (August 2014) I resolved a client's case regarding a DUI charge.  The significance of this resolution was due to our persistence in litigating this matter. This particular client came to me after having driven his car off the road at Sand Point Way in Seattle, WA.  The client was taken to the hospital for a blood draw which revealed he had a .37 ethanol reading (BAC of .37).  Yes that is extremely high, and in some instances a person can die from a concentration of that amount.
Nevertheless, I took the case on and we litigated this matter over the course of a year and a half. After numerous motions were filed back and forth (between the prosecutor and myself), and we appeared in court at least a dozen times, the case was finally set for an evidentiary hearing the day of trial.  The prosecutor made an offer to my client to plea as charged and they would only recommend 3 days in jail (the mandatory minimum in this case was 2 days in jail), but that if my client proceeded to trial and lost the prosecutor would ask for 10 days in jail.  My client, following my advice, politely declined the offer.
Our arguments at the evidentiary hearing included (1) whether the government could prove my client was the actual driver of the vehicle involved in the accident (corpus delicti) and (2) whether the officer had probable cause to arrest.  The hearing involved an independent witness who heard the accident and found my client face down outside of the car moments later.  There was also testimony from one officer.  The officer testified there were numerous broken alcohol containers outside of the vehicle and some alcohol containers inside the vehicle.  The officer also testified my client had bloodshot, watery, eyes, told others he was the driver, smelled of alcohol, had slurred speech, was incoherent and admitted to consuming ¾ of a gallon of whiskey!
I know a lot of attorneys who would have convinced their client to accept the government's offer based upon the allegations, but I simply have a standard of not pleading anyone as charged unless they insist.  After the hearing, and after my cross examination of the witnesses, prior to the ruling of the court, the government offered a plea deal.  The reasoning was that if the court agreed with my arguments the case could have been dismissed, conversely if the judge agreed with the government my client would have not been able to accept the offer and would have had to take his chances in front of a jury.  Prior to the ruling the government stated it would offer a Negligent Driving in the First Degree and not ask for any jail.  After careful consideration, my client accepted the offer.  After the plea was entered, the judge stated she would have ruled against the defense on our issue, so it was a wise decision by my client.
Now normally I don't necessarily post a Negligent Driving in the First Degree as a victory as many of my competitors do, I only like to post dismissals or not guilty verdicts but in this particular case, a DUI accident with a .37 blood draw reduced down to a Negligent Driving (misdemeanor) was an excellent outcome.  The outcome was only achieved due to the persistence of my client and myself.  It is not to toot my own horn that I post this, but it is to show that as a DUI attorney you have to take on the most difficult of cases and try your best despite the evidence.

I know a lot of attorneys who would have put forth the same effort as I did but there are many out there claiming to be “experienced” DUI attorneys who would have caved at the first hearing and convinced their client to plead guilty and "throw themselves upon the mercy of the court."  

Did you have an experience like that with your so-called “trial experienced DUI attorney?”  My point is, if your attorney was not or is not willing to put in the effort as a truly experienced aggressive DUI attorney, they are likely performing a disservice to their client and should probably exit this particular area of law.
We are truly aggressive, experienced, courtroom and trial tested DUI attorneys and have the results to back it up! Contact us today if that is what you are looking for in your Seattle DUI Attorney (425) 398-4323.
 
 
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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

 

Wednesday, July 23, 2014

State v. Martines - DUI blood draws are two searches! Here come the suppression orders...


On July 21, 2014, the Washington Court of Appeals, Division One, published its decision regarding an improper warrant for a blood draw of a DUI suspect in State v. Martines.  The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another. 

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

 

A Washington State Patrol trooper arrested Mr. Martines on suspicion of felony DUI and applied for a warrant based upon his observations. The trooper’s affidavit of probable cause included the following language, “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.”  The court concluded that since the trooper’s affidavit failed to mention the blood would be extracted and tested, the results (i.e. blood draw) were to be suppressed.

Obviously the warrant utilized in this particular case is the same one all trooper’s use across Washington State and defense attorneys will inevitably seek to apply the court’s ruling to every blood case wherein a DUI suspect has his/her blood drawn for the purpose of testing it for alcohol or the presence of any drug.  I suspect the State will then seek to obtain another warrant to test the blood held at the toxicology lab (presuming it has been saved) again.  However, this seeking of an additional warrant will obviously be challenged.  Can the State seek an additional warrant to test blood it already obtained based upon a previously invalid warrant?  The court’s will have to decide that issue, but it should be interesting.

One other issue I believe this decision raises is that if a blood draw and subsequent test of that blood are indeed two separate searches won’t this raise issues regarding the Implied Consent Warnings for Blood.  The warnings advise an individual that their blood will be extracted for testing, but the language specifically says “this test…..”  It does not mention “these tests” to clearly indicate the blood will be searched twice (extraction and subsequent testing).  Washington Courts have long held that inadequate Implied Consent Warnings subject the ill-gotten gain (breath or blood test) to suppression. 

The State will argue that once you submit to a test the State can do whatever it wishes, but I disagree because the court in Martines clearly stated, “We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”  This means that even if the blood is lawfully procured, either through a warrant or by consent, the State must obtain a warrant to test the blood. 

Again, the courts will have to decide this issue but it will be interesting. 

Thursday, July 10, 2014

Uncertainty in Breath Testing - BAC Datamaster and Datamaster CDM


I'm no scientist, let's get that out of the way right off the bat, but I do have a basic understanding of breath testing principles utilized in garnering results with a BAC Datamaster and Datamaster CDM.  Both of these "instruments' (or as I say, machines) are approved for the quantitative measurement of alcohol in a person's breath.  See WAC 448-16-020.  Essentially, the State Toxicologist has approved these machines for use in testing person's breath alcohol concentration when arrested for an alcohol related driving offense in Washington State.
Breath testing for evidentiary purposes in Washington consists of an operator collecting two separate samples of breath independently from an arrested subject.  The operator (usually the arresting law enforcement officer) enters some basic information into the machine, such as date of birth of the subject, etc. then just waits 15 minutes or more and has someone blow into the tube attached.  Each time a DUI subject blows the operator is to ensure a new mouthpiece is used.  After the samples are collected, if everything went right, meaning there were no errors for an invalid sample, samples outside of 10% of the mean, ambient air, radio frequency interference, etc., it will produce a ticket showing two subject samples, that is the two numbers related to the persons breath alcohol concentration.  The State of Washington's legislature has made it very simple for prosecutor's to admit these samples (two numbers on the ticket) into evidence and present to a jury.  Literally an elementary student could ask the breath test technician the necessary questions for admissibility, I'm not kidding.
Once the prosecution ends its' direct of the technician, this is where a trained DUI defense attorney needs to pounce.  As an experienced Seattle DUI attorney I have cross examined breath test technicians on many many occasions when challenging the results of a breath test document.  The prosecutor's job is done once they get the number in front of the jury, but the DUI defense attorney's is just beginning.  What do I mean by pounce, well you need to hammer home to the jury that the alleged numbers are really a probability fraught with uncertainty and the technician will have no choice but to admit the numbers are not perfect.  Any measured value has uncertainty, as I understand it, that is how science works!  No scientifically produced value is perfect and each measured "subject sample" could be much lower or much higher given uncertainty.  Why didn't the prosecutor ask the technician about that and disclose it to the jury?  Well, of course they want that precious numbered to be free from any speculation.  That is why it is absolutely necessary to discuss that with the technician on cross and to make sure and point out in summation that the prosecutor essentially hid that information from them.  

Once you discuss uncertainty, make sure and then discuss what a partition ratio is with the technician. The jury needs to know everything about how these measured values are based upon presumptions.  A partition ratio is, in layman's terms, an assumed value that it utilized to compare blood to breath.  The dumbed down version is this, the ratio assumes that 2100 mL of breath contains the same amount of alcohol as 1 mL of blood.  However, just by doing some minimal research on partition ratio's will reveal numerous treatises wherein scientists, medical students, doctors, etc. have concluded the 2100:1 value is incorrect and can have vast ranges, meaning that someone's measured breath test on a Datamaster presumes this 2100:1 value but if the partition ratio is actually lower or higher, as has been concluded by these treatises, the actual breath test result is vastly skewed.  Make sure you bring this out of technician and discuss the revelation to the jury.  Again, a great point to make in summation is "why didn't the prosecutor inform you of this presumption when they presented their case?"  It shows that the prosecutor doesn't want the jury to speculate on things that are clearly speculative!

One additional argument I commonly make is that the presumed temperature of the simulator is also based upon skewed conclusions.  The simulator solution is a mixture of ethyl alcohol and some type of distilled water to simulate a known value, e.g. .04, .08. 10 or .15.  The toxicology lab prepares a simulator solution to be approximately .08 for use in the datamaster.  The mixture is tested by several toxicologists an certified for use. The measured value also has an uncertainty and that should also be exposed to the jury, especially if the simulator solution is closer to the .072 to .088 ranges (that is the allowable range of a simulator solution for use with the datamaster).  The mixture, for use in the datamaster, must be heated to a known value and the common value is 34 degrees Celsius plus or minus .2.  In between a subject's sample, the simulator solution runs into the datamaster for an "external" check to make sure the datamaster is reading a .08 mixture (although if the reading is anywhere between .0-72 and .088 it is acceptable?  Really? Anyway, that is an argument for another day).  Why is that 34 degrees value important?  Well that is the presumed temperature of a person's mouth when exhaling.  Again, there are many treatises and experts who agree that 34 degrees is not the correct average temperature of every person, and technician's and toxicologists who testify in DUI trials must agree, there is too much proof to the contrary and science simply doesn't support we are all the same.  Here is where it is necessary for your DUI attorney to expose the speculative nature of breath testing.  If someone's mouth temperature is lower or higher, invariably the breath test measured on the datamaster will be either lower or higher.  Again, in summation it is essential your DUI attorney points out this non-disclosure of information to the jury. 

At the end of the day, a trained DUI defense attorney can show that these alleged measured values are fraught with speculation, yet when determining the guilt or innocence of a citizen the government has no problem with presumptions.  There are numerous other situations in which a trained Washington State DUI attorney can expose speculative breath tests results to a jury.  

If you find yourself in need of a renowned, trial tested DUI Defense attorney, look no further than the Webb Law Firm.  Call today (425) 398-4323
 
 
 
 
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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com
 
 
 

Wednesday, July 2, 2014

July 4th Emphasis Patrols are out! Don't get stopped!

Every July 4th (and every holiday for that matter) the Washington State Patrol and other police agencies conduct DUI Emphasis Patrols in anticipation of an increased number of DUI drivers.  Don't be one of those persons stopped for DUI.

Take a cab, call a friend or find some other form of public transportation to get you safely home if you have been drinking.  Remember, as I always say, it isn't against the law to drink and then drive, but with these DUI patrols the law enforcement person who may contact you will arrest you if they smell any alcohol.

What do you do if stopped and you have had something to drink?  Read my advice on whether to take field tests or not at http://www.webbattorney.com/field-sobriety-tests.  Also, always contact an attorney at the station before you submit to any breath test, even if it is a public defender, they can provide the proper advice in these circumstances and can then be a useful witness if your case is filed.

Also, if you are out on a boat and are stopped for a "wake violation" and charged with Operating a Vessel While Under the Influence or BUI as we commonly refer to it, give us a call to discuss your options (or visit - http://www.webbattorney.com/bui-boating-dui.php).

Remember the best way to avoid a DUI is to not drink and drive, but if you or a loved one, or an acquaintance is stopped and arrested for DUI, have them contact our attorneys for immediate assistance at (425) 398-4323.

_______________________________________________________________________
About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

Friday, May 23, 2014

Don't Get a Memorial Day DUI! If you do, call me (425) 398-4323

Folks, Memorial Day weekend, being a three day weekend for most, will undoubtedly find you enjoying a cold one with friends at a BBQ or maybe down at the Folk Life Festival at Seattle Center or out at the Gorge Amphitheater for the Sasquatch Festival.  Just remember to do be responsible to avoid any issues.
If are reading this blog ahead of going out this weekend and you or someone you know is stopped and had a beer or two, read this before submitting to any tests.
Law enforcement will be out patrolling our highways and streets looking for drunk drivers, so drink responsibly and avoid having to give me a call. If you hear of someone who picked up a DUI over this weekend then feel free to refer to me for assistance. 425-398-4323
Be safe, have fun and remember the reason for the weekend, let's thank our members of the Armed Forces for keeping us safe and free.
Happy Memorial Day from the Webb Law Firm!
 
_______________________________________________________________________
About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com