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Overzealous prosecutors v. reasonably ethical prosecutors

Posted by Nathan Webb | Jan 24, 2014 | 0 Comments

As a defense attorney I frequently encounter eager, ready to prove themselves and sometimes arrogant (without any substance) prosecutors who will do anything to get a conviction.  Today I wanted to comment about a case I had in Seattle Municipal Court and a prosecutor I respect who did the right thing.

It was about a case involving a client who had made the decision not to drive and to sleep off his overindulgence of several beers after a day of finals at a local university.  Suffice it to say, when the security found him slumped over his vehicle's steering wheel, passed out drunk, they were a bit concerned and called the police.  The police showed up, found my client (at this time outside his vehicle) in an extremely intoxicated state.  He was arrested for what is called Physical Control of a motor vehicle while intoxicated (basically drunk behind the wheel but no witness to driving).  He was not very cooperative because of his intoxicated state and ultimately blew very high on the Datamaster (well over the .08 per se level).

Once I interviewed my client I was a bit vexed as to why the case was filed because as any seasoned DUI attorney will tell you, an affirmative defense to Physical Control is that if you have driven your vehicle safely off the roadway prior to being pursued by law enforcement, you cannot be found guilty of the offense.  Well, in my opinion, you cannot better meet this defense than the position in which my client found himself.  I genuinely believe he had no intent of driving and was just "sleeping it off" until he was able to get a sober driver to pick him up.

The City filed the charge nevertheless based upon the security officer's observations coupled with the officer and some alleged statements my client made to the arresting officer.  Once I got the case I knew I had some work to do.  I contacted the originally assigned prosecutor who then turned it over to his supervisor, a gentlemen I truly respect (I also respect the original prosecutor highly as well).  I informed him of the situation, the case law and our position of the legislature's intent regarding the affirmative defense.  At first I met with some resistance, understandably because of the higher breath sample, but after some negotiations my client's case was dismissed due to his proactive measures (that is, because he never intended to drive).

Now the moral of the story is that an experienced prosecuting attorney evaluated the case and deemed the defense to be an accurate representation of the legislature's intent.  Conversely, as I previously blogged about, a younger less-experienced prosecuting attorney pushed a case to trial (on which I ultimately garnered a not guilty verdict for my client) which should also have been dismissed on the merits.  This is the difference between an unethical, immoral, unseasoned, unreasonable prosecuting supervisor and an ethical, respectful one.  It really comes down to the merits of the case and the government's responsibility to do what is right, not seek a conviction at all costs.  I love my job when I can deal with prosecutors such as the one I dealt with at the City of Seattle.  It was the right call and we appreciate it.

About the Author

Nathan Webb

Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by


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