Monday, June 21, 2010

You Got a DUI, Eh? The Canadian Take on Drinking and Driving.

Unfortunately, the rumors are true. It seems our friends to the North are fair-weathered when it comes to those charged with drinking and driving in the States. This may seem strange with the hyped news stories tauting flippancy to marijuana possession and legalized escort services. Certainly one would think that Canada is a forested land of parties. However, the Canadian Government prevents certain non-Canadian citizens from entering Canada under their restrictive immigration laws. These laws create inadmissible classes for those who have been charged with offenses that translate into felonies when placed into the Canadian mentality.

Canada regards DUI/DWI offenses as very serious in nature, therefore placing those non-Canadian citizens charged with these offenses (and even those granted reductions by the US Courts) into their discretion to be turned away at the border. A DUI is an indictable offense in Canada that may be punished by imprisonment for up to a five year term. Therefore, U.S. convictions that equate to a felony or indictable offense in Canada is excludable from Canada and even if the offense is not a felony or indictable in Canada, Customs and Immigration Officers have ultimate authority to permit and deny entry into Canada under the rationale of immigration protection.

This means if you want to visit the land of fish, water, moose and mosquitoes--you'll have to go to some extra measures if you have a DUI conviction or charge on your record, especially if it is less than 5 years old. A temporary pass to the country can be applied for, as well as an application for "criminal rehabilitation approval" but both take time and are within the Canadian government's discretion to grant.

So remember, these applications are not guaranteed and should be done well in advance to a planned visit. Save yourself some time by educating yourself in deportable offenses...or head South, Cabo is just as nice.

Friday, June 18, 2010

"But I Only Had One Drink..." Testing the Limits of Our DUI Laws

Did you know in Washington State that you can be charged with a DUI even with a BAC under the legal limit of 0.08? This may seem counter intuitive but it is an unfortunate truth and one to educate yourself on. How can this be, I imagine you're asking--well, friend, it is due to the statutory language capsuled under RCW 46.61.502 which states:

A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:

(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

Upon reading this law, you will notice that it is a two pronged device. The first prong being that a person meets the elements of this charge if he/she has an alcohol level of above 0.08 while behind the wheel and the second being that a person may merely be be "affected by" intoxicating liquor while operating their vehicle. It is the secondary portion that enables the State/City to go forth with a DUI charge that is under the legal limit.

In these instances, the prosecuting body relies on the observations of the officer and his or her testimony that the driver appeared "affected" by a substance. Examples of observations would be veering, smell of intoxicants, lack of coordination, and statements made by a suspect.

Although bureaucracy is a staunch adversary in the legal realm you can protect yourself first and foremost by remaining silent. Be cooperative but notify the officer that you would like to speak to an attorney before you answer any questions. If the officer responds to you that you are not under arrest and have not reached the point to invoke this right, ask if you are free to leave. If you are, then do so--if not, stick to your guns and re-request your attorney. Be firm with your rights but not condescending or uncooperative.

Remember, you can catch more flies with honey than vinegar... These responses/repartee give you a better chance for a fairer resolution to any allegation or stop. Your conduct will show the Court you are respectful of the law and expect respectfulness to your rights. Don't be "affected by" someone stifling your guaranteed liberties...there is no second prong that ever allows that.

Tuesday, June 8, 2010

Overhearing Your Constitutional Rights Being Violated.

You've had it happen. On the bus, in a restaurant, by that mustached voyeur in a bar--the eavesdropping epidemic. This affliction occurs every time a person sits a little bit too close and listens a little bit to hard to a conversation that is none of their concern. The prevalence of officious inter meddling gives it the aura that its just another one of those life circumstances that must be tolerated--and most times it's easiest to do just that. Most times, but not all. A DUI allegation or any criminal situation are exceptions to the 'tolerance rule' and one that a defendant should not take lightly. While it is hard to be polite and tell someone to go away, it is possible, recommended and supported by law.

If you are ever arrested for a DUI/Criminal offense, you are guaranteed the right to counsel and the conversations you have with your attorney should be private. This means that if a police officer is standing a bit too close for comfort, you have every rights to politely ask for privacy. If they refuse, they have refused a right afforded to you by the Sixth Amendment.

A defendant will be denied the statutory right to counsel when the police officer denies him private communication and the desire for private communication was either expressed to the officer and/or the defendant alleges that prejudice resulted. Koch, 53 Wn.App. at 357-58. For example, in Koch, a consolidated case, the two defendants had argued that they were denied access to counsel. The court rejected the defendant, Koch’s, argument based on the fact that there was no evidence that the attorney or Koch asked the officer to move further away. Similarly, the court found that the defendant, Hanson, also failed to show that she requested additional privacy. See also, State v. Holland, 147 Ariz. 453, 711 P.2d 592 (Ariz.1985) (holding that the defendant was denied access to counsel when he asked the officer to step out of ear shot and the officer denied his request).

Learn from precedent and turn mistakes into legal defenses. If you wish to have a private conversation with your attorney, let an officer know. As the law dictates: "innocent until proven guilty." No one is a second class citizen when they enter a police precinct and although law enforcement can inventory your cell phone, wallet, clothes and keys--they cannot inventory your rights. Exercise them.

Monday, June 7, 2010

Your Phone is Ringing...Don't Pick Up, It Could Be a DUI

Starting June 10, 2010, Washington State law will restrict driving while talking on the phone, texting or checking a quick email without a hands free device. A violation of this law will be considered a primary offense. Therefore, this legislative action will be working against your social life and for the proposition that police will have an advantage in investigating drunk drivers.

Any criminal defense case requires a showing of probable cause or extenuating circumstance to detain a suspect. Probable cause in the realm of a DUI requires a catalyst before the vehicle stop. Elements such as a traffic infraction, excessive weaving, broken vehicle equiptment or lack of a seat belt would all support the ability for an officer to stop your car. Once the officer has the vehicle stopped, it's open season. Documentation that the smell of intoxicants are overpowering and a driver's eyes are 'red and watery' are generally staples leading up to a DUI arrest. With this factual situation,viola, the State has a nice argument for probable cause all wrapped up with a bow. Starting June 10th, talking on your cellular will become the ribbon for the State/City's DUI gift box.

Therefore, we leave you with these easy to remember cautionary messages:

1. While driving, ten and two is not a synonym for T9,
2. A smartphone is one with a handsfree device.
3. Life happens. Keep our number in your ICE category--its 206.621.1554--just be certain to make that call safely off the roadway...

Extra time???--check out the Seattle Times for more news on cellular phones and driving (see link below):

Friday, June 4, 2010

Does Seattle Turn a Blind Eye to Marijuana Possession?

Below is a story published in The Stranger detailing the large amount of first-time nonviolent marijuana possession defendants who are taken into custody. Many believe that Seattle's recent move to make possession of marijuana (under 40 grams) a civil infraction, which was struck down, indicates that Courts' are lenient to those in this cohort of offenders. However, this is not always the case. Statutorily in the State of Washington, a possession of marijuana offense mandates at least 24 hours in custody. This can be mitigated by exploring potential search and seizure issues, substantive legal issues and communications pertaining to extenuating circumstances with the State/City attorney. We are experienced in defending this type of case and are leading the fight to defend those 'unicorns' for a story ending of 'happily ever after...'

Tracking Down Those Unicorns
posted by Dominic Holden (See story in original format at

Last week White House appointee John Walters claimed on C-SPAN that finding people in jail for “first-time nonviolent possession of marijuana… is like finding a unicorn … because it doesn’t exist.” I had a hunch that some of the 775,138 people arrested for pot possession last year were actually unicorns…

But the drug czar probably assumed that it’s a freebie to call people with criminal convictions anything he wants, because they’re likely to be too ashamed to defend themselves. That’s certainly true, but it didn’t take me long to find credible people willing to vouch for the existence of first-time, non-violent marijuana offenders—excuse me, unicorns.

In just one hour, I’ve found five people who have seen the Drug Czar’s unicorns with their own eyes. Here are Slog’s exclusive unicorn reports:

Andy Robertson, criminal defense attorney for 10 years at the Rosen Law Firm in Seattle.

I have had it happen where [my client] goes to jail where they have one joint on them, and they have never gone to jail before. This is their first and only brush with the law. I don’t think that I have ever had a case where the person charged for marijuana is anything but the most peaceful person you can imagine.
A judge who I spoke to recently said that about every afternoon, he’ll put at least one person a day in jail for possession of marijuana or paraphernalia. He’s bee pro tem-ing for at least five years.

Sunil Abraham, public defender for the King County Defender Association. When asked how many people he has personally encountered with no prior record who have served time in jail for a nonviolent marijuana-possession charge, here’s what he said:

I’d say 50 people and they have all done time in jail. I’d guess that if you obtained the booking history for the last 100 marijuana arrests for somebody who has no criminal history, 80 percent of them do time in jail. It may be one day, but they serve time in jail. [Police] don’t commonly arrest for marijuana and release; you are going to go to jail. Alison Holcomb, drug policy director of the ACLU of Washington.

According to data compiled by the Washington Association of Sheriffs and Police Chiefs and requested by the ACLU of Washington, Washington police agencies reported 11,553 arrests for possession of marijuana in 2007. Misdemeanor possession of marijuana carries a mandatory day in jail, and up to ninety. Data obtained from the Washington State Patrol’s Identification and Criminal History Section reveals that 3,588 convictions for misdemeanor marijuana possession were entered in Washington courts in 2007.Muraco Kyashana-tocha, works in the law offices of Jeffrey Steinborn and Douglas Hiatt, the city’s leading marijuana-defense attorneys.

I know of two cases that were handled … in the last year. They were both over in Redmond. I know both of them by name. One gram [possessed] by one of them, and 12 grams by the other one. They were squeaky clean: no record no juvenile record. I know a lot of people who went to jail while their case was processing. They may be in jail over the weekend for three days. A lot of the people charged with misdemeanor [possession] cannot afford $3000-5000 for legal representation, so they are doing time.Jeffrey Steinborn, the city’s leading marijuana defense attorney.

Walters is either shamefully ignorant, or intentionally lying to us. Sometimes we get lucky because a big shot in white shirt shows up. Sometimes the prosecutor will say the statute is mandatory, so they say, “Fuck you, your client’s going to jail.” Sometimes the judge will convert that to community service but the law says they can’t. To avoid that day in jail is the exception rather than the rule.

Thursday, June 3, 2010

Are the Field Sobriety Tests Truly Voluntary?

You are compelled to stop by the flashing red-lights in your rear view mirror and have moments to make decisions that will impact your life in a significant manner. Before the officer approaches with requests you are not sure if you should grant. Please take time to read about the law and position yourself with it on your side.

First note of business, Yes. The field sobriety tests are voluntary, which means you have every right to politely decline the tests and diminish the strength of the State's case if you are inevitably charged with a DUI. These tests are pretty challenging in nature and the nervousness that follows law enforcement can make them even more difficult. This is the reasoning behind our suggestion to decline all types of field sobriety tests while simultaneously remaining cooperative with law enforcement.
However, if you did not read this blog in advance to an unfortunate moment on the roller coaster of life, there are certainly arguments that our dedicated and experienced firm can make to fight a DUI charge and potentially suppress a failed result on the field sobriety tests.

Follow now, into the land of substantive legal issues regarding the voluntariness of field sobriety tests...where this ability to refuse stems from and how it applies to you. Please excuse the legalese and feel free to express questions or concerns that will be answered promptly.

It is undisputed that in Washington, physical tests are voluntary and a driver has no legal obligation to perform them. City of Seattle v. Personeous, 63 Wn.App. 461 (1991); City of Seattle v. Stalsbroten, 138 Wn.2d 227 (1999). The right to refuse physical tests does not arise from statute; however, as does the right to refuse a breath test. Nor does it arise from court rule or the Sixth Amendment. See Heinemann v. Whitman County, 105 Wn.2d 796, 801 (1986). Until recently, it was a popular belief that the right to refuse physical tests stemmed from the Fifth Amendment. In City of Seattle v. Stalsbroten, however, the Supreme Court averred that neither the performance of physical tests nor the refusal to do so gives rise to Fifth Amendment concerns. Stalsbroten, 138 Wn.2d at 234. Clearly, the only source from which the right to refuse physical tests may stem is from the Fourth Amendment.

The Fourth Amendment is incorporated in Art. 1 Section 7 of the Washington State Constitution which provides: “No person shall be disturbed in his private affairs, or his home invaded without the authority of the law.” Because this language differs significantly from the Fourth Amendment to the United States Constitution, it has been interpreted to provide significantly greater protection to the privacy interests of Washington citizens than does the its federal counterpart. State v. Myrick, 102 Wn.2d 506, 688 P.2d 151 (1984).

Our Supreme Court has previously applied Article 1 Section 7 to an officer’s observations of signs of alcohol impairment. In Seattle v. Messiani, 110 Wn.2d 454 (1988), the Court found that sobriety checkpoints violate the State Constitution. In doing so, the Court noted that Art. 1 Sect. 7 protects against warrantless searches and seizures with no express limitations, and, unlike any provision in the federal constitution, explicitly protects the privacy of Washington citizens. These privacy rights include the freedom from warrantless searches absent special circumstances. Messiani, 110 Wn. 2d at 456-457.

This State’s emphasis on the right of personal privacy mandates that such an orchestrated quest for evidence of physical impairment be appropriately labeled a search, and be accorded the protect of the State Constitution. Our Supreme Court has acknowledged this in Seattle v. Messiani and has left no room for alternative analysis after Seattle v.Stalsbroten. Because physical testing raises Fourth Amendment and Article 1 Section 7 implications, the court must apply a strict standard of consent. The definition of consent in the State of Washington for Fourth Amendment purposes generally follows the “voluntariness test” of Schneckloth v. Bustamonte 412 U.S. 218, 36 L. Ed.2d. 854 (1973). In State v. Counts, 99 Wn. 2d 54 (1983), the Court held that with regard to warrantless searches, the State bears the burden of establishing that “consent was in fact freely and voluntarily given”.

Therefore, if an officer did not explain the voluntary nature of the tests to you on the night of an alleged infraction and you submitted to these tests, a defense argument would be drafted stating your constitutional rights (both federal and state) were violated and a free, voluntary consent to the tests was not given.

Life decisions can be hard, let us help make them easier by giving you ammunition to fight violations to your rights before and after they occur. We know the law and can protect you.