Friday, April 29, 2011

Rules of the Road: Washington's Lane Travel Statute

The Revised Code of Washington, 46.61.140(1), states that whenever a roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: “(1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

This statute shows that the Washington legislature recognizes that a person may go outside their lane of travel and not be in violation of the law. Therefore, the law anticipates that will not be able to constantly maintain their lane of travel, brief drifting over the line will happen.

The Washington Court of Appeals has addressed this lane change statute in the case State v. Prado. In this case, the driver crossed over lane dividers by two tire widths for one second while on a highway off ramp. The Court decided that the Washington legislature’s words “as nearly as practicable” show that brief incursions over lane lines will happen. Therefore, if a vehicle crosses over lane dividers momentarily, it is not a legitimate basis for a traffic stop in violation of a lane travel statute because legislature indicated intent to avoid penalizing brief, momentary, and minor deviations of lane lines.

This does not go to say that if the lane travel is accompanied by any other traffic violation or driving patterns that lead an officer to believe that the driver may be impaired, then there may be a legitimate basis for a traffic stop. It does mean, however, that only briefly crossing outside your own lane is not a permissible basis for a traffic stop.

Friday, April 8, 2011

SFST Playbook: What Officers are Looking for During a DUI Stop

Officers are trained to look for specific indicators of intoxication when they make a stop for suspicion of a DUI. At the very least, one of these indicators is mentioned in an officer’s DUI arrest report to give basis for a DUI arrest. These factors are outlined in the Standardized Field Sobriety Test (SFST) Manual and are outlined in three phases below.

Just like an officer is trained to document the reason for the stop, he is also documents his observation of the events surrounding the vehicular stop. This time frame begins when the officer activates his lights to signal the car to pull over and the time that the car comes to a stop.

The SFST Manual outlines six cues that are evidence of a DUI: (1) an attempt to flee; (2) no response, (3) slow response; (4) an abrupt swerve; (5) a sudden stop; and (6) striking the curb or another object.

Usually, none of these indicators are present in a case, so a defense attorney will ask the officer about the stopping sequence so that he will testify that none of the indicators were present.

The next observation period is the officer’s approach to the vehicle. This includes the officer’s initial observation of the driver’s physical characteristics. In particular, officers look for bloodshot or droopy eyes, a flushed face, slurred speech, and whether there is an odor of intoxicants. Officers also observe whether the driver has difficulty retrieving his license, such as whether he had difficultly locating the license or whether he fumbled with the license while handing it over to the officer.

If the driver admits to consuming alcohol during this stage of the stop, an officer may give weight to this evidence. Because the officer will not likely follow the admission to drinking with any questions, then the defense attorney may be able to combine an insufficient investigation with ongoing observations that are consistent with sobriety and will have an effect on the fact finder. A defense attorney will ask the officer follow-up questions about this conversation, including whether the driver informed the officer of the time period, or whether the driver was able to understand and answered appropriately.

Finally, officers observe the driver during an exit sequence. The SFST Manual enumerates specific behaviors that the officer is trained to look for at this stage of the stop. Some of those behaviors are that the driver: shows angry/unusual reactions, cannot follow instructions, cannot open the car door, leaves the vehicle in gear, leans against the vehicle, or keeps hands on the vehicle for balance.
Some ways to defeat these observations at trial is to get the officer to admit that the driver never put his hand on the vehicle as he walked, followed instructions about where to go, never resisted, walked in a straight line, and never stumbled or tripped.

The goal here is to leave the fact finder with a lack of credible evidence of impairment for these three sequences. By balancing the officer’s evidence of alleged impairment with evidence of normal sober behavior will create a reasonable doubt in the fact finder’s mind and possibly lead to an acquittal or reduction of charges.

For more information, see:

Friday, April 1, 2011

News Continues Surrounding SPD DUI Investigation

The Seattle Police Department released a public statement addressing the incident. Within the statement, the Department released the following information:

“In mid-February 2011, Traffic Captain Belshay began to review some supervisory inconsistencies within the Traffic Section’s DUI squad. Upon closer examination, it was determined that administrative policy violations were in fact occurring.

Seattle Police Chief Diaz was briefed and Assistant Chief McDonagh of Special Operations, which oversees Traffic, forwarded this information to the Office of Professional Accountability. On March 8th an investigation was opened into the conduct of the DUI squad sergeant. The investigation was broadened into the conduct of three other officers assigned to the DUI squad.

The employees were administratively reassigned on March 16th. They include a 32-year veteran sergeant, a 23-year veteran officer and two 12-year veteran officers. The last remaining DUI squad officer has not been named in this investigation and remains on normal duty.

The scope of the investigation at this point focuses on the administrative policy violation of screening all arrests with a supervisor in person, which department policy requires. This investigation is in its infancy. The scope may change as new information is developed.

Seattle Police commanders have met with Craig Sims, head of the Criminal Division at the City Attorney’s Office, and advised him of the internal investigation into members of the DUI squad. Seattle Police commanders believe that these concerns are limited to the DUI squad.

The DUI squad is comprised of one sergeant and four officers and works nighttime hours. Efforts are underway providing for temporary backfill for these duties while the involved employees are on administrative reassignment. The crime of Driving Under the Influence is also regularly enforced by on-duty Seattle Police officers outside of the Traffic Section.”

The statement was released as a video on SPD’s website. The Department's choice of a video press release has been criticized since it means that there was no news conference and, therefore, no questions could be asked by news reporters.

The fact that SPD avoided making a public appearance through a news conference could make the Department seem like it is trying to circumvent a transparent process that the public is able to see. This is especially true amid the current suspicion about the business practices and professionalism of the SPD. The Department is currently under review by U.S. Department of Justice over allegations that officers used excessive force in several high-profile cases. The Justice Department, among other things, is looking at whether the Police Department has adequate procedures to ensure that front-line supervisors are performing their jobs.

The main concern with the state of the current investigation is that SPD is not making itself available to the public, and therefore, making its practices seem evasive and manipulative.

Seattle Police Officer's Guild President Rich O'Neill said there was a policy violation, but said it's not a big scandal. "Realistically it's just an internal paperwork issue and you could have turned the paperwork in with no signature on it and it would have been just as valid." Even so, the investigation raises questions about how DUI cases might be affected.

The issue with the investigation is that for several months, sergeant was not screening the arrests in person. Sergeant Abe routinely did not report to work and approved DUI arrests by telephone. Officers began to use a rubber stamp to affix the sergeant’s name to reports, instead of having the sergeant review the report himself. Now, it is speculated as to whether or not the sergeant was contacted at all to review the reports and perhaps the rubber stamps of the sergeant’s approval were used by the arresting officers at their discretion.

SPD manual policy currently mandates that whenever officers arrest or detain someone in any type of crime, a sergeant "shall be notified so that an in person review of the incident can occur." Once at the scene or the precinct, supervisors are supposed to review the circumstances of the arrest and the condition of the suspect. The supervisor is supposed to evaluate the appropriateness of any allegation, sign off on any jail booking or release, and ensure evidence is properly collected and preserved, according to the manual.

Even though this procedure may be unique to SPD (Washington State Troopers and Sheriffs are not required to have sergeants screen cases), it is still notable that the sergeant and officers were willing to circumvent implemented policy. This could also raise questions about whether these officers were disregarding other policies of DUI arrests, including the administration of Field Sobriety Tests and lawful arrest procedures.

The Department is trying to make the investigation seem like it is only an administrative paperwork issue, stating without the question of the sergeant’s signature, the arrests were otherwise valid and supported by sufficient evidence. However, DUI officers arrest and process more than 1,000 drivers per year, meaning that this “administrative paperwork issue” could affect a substantial number of people.

Currently all but one member of the Seattle Police DUI squad are administratively reassigned and are being investigated. For now, other officers will be specially assigned to take over the nighttime squad's regular DUI-enforcement duties during the investigation and patrol officers will continue to watch for impaired drivers. One DUI Squad officer, Eric Michl, has not been named in the investigation and remains on duty.

The King County Prosecuting Attorney's Office is currently awaiting results of the police investigation to determine if it might have an impact on any DUI cases, including felonies involving injuries or deaths.

For more information and updates about the investigation, visit:

Tuesday, March 22, 2011

Seattle Police Department DUI Squad Investigation

Below is a report by King 5 News featuring attorney Raymond Ejarque. For the full story and video visit:

SEATTLE - The Seattle Police Department has reassigned all but one member of its DUI squad amid an ongoing internal investigation into alleged mishandling of drunken driving arrests.

The department confirmed Monday that three of the squad's four officers and its sergeant were pulled from their duties last week.

The possible mishandling of DUI arrests could compromise dozens of cases.

The department isn't talking, but they do confirm the internal investigation.

The allegations are that DUI arrest reports were not properly screened and signed off on by a sergeant in the DUI squad. Department policy requires that all arrests be screened in person by a supervisor.

One Seattle man, arrested on Saturday for DUI, says there was no supervisor present when he was taken in.

"It was just one officer. I never saw a sergeant or a supervisor at all," he said.

The allegations against police are that the sergeant routinely did not report to work and approved the arrests by phone, and the papers were stamped with his name.

In response to the Seattle Police Department's internal review of the DUI squad, the Criminal Division of the City Attorney's Office said Monday they will conduct an individual analysis to determine whether any of the DUI cases - past and present - may be impacted by the investigation findings.

"Once we determine the full scope of the issue we may look at past cases," Criminal Division Chief Craig Sims said.

In traffic court Monday, more than a dozen DUI cases were continued, with some discussion of the police investigation.

With the allegations against Seattle Police, DUI defense lawyers could have a field day.

"I'm absolutely sure that all the DUI attorneys are carefully reviewing their files and their cases to determine how this would affect their cases," said attorney Raymond Ejarque.

It was a Seattle Police captain who noticed some inconsistencies in the DUI squad. He brought it to the attention of his superiors and that led to the internal investigation.


Friday, March 4, 2011

Illegally Driving Under the Influence of Legally Prescribed Medication

While the majority of DUI offenses stem from the use of alcohol or illegal drugs, it’s becoming common to get a DUI in Seattle for driving under the influence of anything that leaves you impaired. This means that a Seattle driver runs the risk of a DUI by driving while under the influence of perfectly legal prescription or over-the-counter medications.

Possessing and ingesting over-the-counter and prescription medications is legal, but so is alcohol. So, like alcohol, if an officer believes that prescriptions have impaired driving, it can still result in a DUI. The penalties for driving under the influence of over-the-counter or prescription medication are the same as driving under the influence of alcohol or illegal drugs.

Even though both may have impairing effects, medication does differ from alcohol in a DUI case. For alcohol, detection of it’s the BAC can be done by breath or blood test and 0.08 is a known legal limit throughout the country. For medicated driving, there is no agreed-upon limit for which impairment has been scientifically calculated. Furthermore, determining current drug levels can be difficult, since some drugs linger in the body for a period of days or weeks after initial ingestion.

Some states have made it illegal to drive with any detectable level of prohibited drugs in the blood. But setting any kind of limit for prescription medications is far more complicated, partly because the complex chemistry of drugs makes their effects more difficult to predict than that of alcohol. Determining whether a driver took drugs soon before getting on the road can be tricky, since some linger in the body for days or weeks.

There is no reliable data on how many drivers are impaired by prescription drugs, but law enforcement agencies are putting police officers through special training to spot signs of drug impairment and clamoring for better technology to detect it. Washington is among those states that now has trained drug recognition experts (“DRE”) trained to spot signs of impairment in drivers.

The police may struggle, however, with the challenge of prosecuting someone who was taking valid prescriptions. In an interview with the New York Times, Mark Neil, senior attorney at the National Traffic Law Center, stated: “How do we balance between people who legitimately need their prescriptions and protecting the public? It becomes a very delicate balance.”

Police are arguably casting too wide a net and unfairly punishing people who are taking prescriptions as directed. With Washington’s vague definition of “impairment” including “driving while under the influence of drugs,” police have great discretion in who they decide to stop and arrest for an alleged DUI charge.


Tuesday, March 1, 2011

Danger Ahead: What Commercial Drivers Stand to Lose

A driver operating a commercial vehicle and carrying a Commercial Drivers' License (CDL) does not carry the exact same rights as other drivers. Driving a commercial vehicle means that you have already given implied consent to drug or alcohol testing required by the State of Washington. This means that if you are stopped for a DUI, you do not have the opportunity to withhold consent to test the level of drugs or alcohol in your system.

The consequences of a DUI conviction are very severe for commercial drivers because the consequences carry with them the risk of losing a job. First, because it is illegal to operate a commercial vehicle with any alcohol in the system, law enforcement could place an impaired driver out of service for up to 24 hours. If convicted of operating a commercial vehicle under the influence, a driver may stand to lose his/her CDL for one year (3 years if the incident occurred while the driver was transporting hazardous materials.)

Even worse, if a driver is found guilty of a second instance of driving a commercial vehicle under the influence, the driver runs the risk of losing his/her CDL for life. The Washington Department of Licensing does not allow a driver to re-qualify for a CDL after this sort of lifetime disqualification.

In the event that a CDL is suspended, cancelled, or disqualified, a driver will not be able to operate a commercial vehicle. This means that a driver runs the risk of losing his/her job because they are no longer licensed to drive a commercial vehicle. You will have to notify your employer of all traffic convictions within the last 30 days, meaning that you must inform your employer of your DUI.

While a CDL is suspended, you cannot get an Occupational/Restricted License to drive a commercial vehicle; you may only apply for a license to operate a non-commercial vehicle. Once again, this means that if you depend on commercial driving for your job, you likely will not be able to perform your employment duties.

These reasons show why it is imperative to request a Department of Licensing hearing at least 20 days after an arrest. Like all DUIs, driving a commercial vehicle while allegedly impaired runs the risk of extreme consequences. If your job requires you to maintain your CDL, then you undoubtedly have a lot at stake when fighting a DUI charge. The only way to avoid these penalties is to know the law, understand your rights, and fight your DUI charge with full force.

Friday, February 25, 2011

License Plate Tags for Drunk Drivers: A Wrong Turn?

Below is a story published on February 25, 2011, in the Wall Street Journal. For more information about this article, please visit:

Washington has become the latest state to see a push for a so-called whiskey-plate law to combat drunk driving, a move defense lawyers and civil libertarians say can unfairly stigmatize offenders, and sometimes their families as well.

The law would require first-time drunk drivers to replace their license plates with easy-to-spot tags that end with the uppercase letter "Z," a signal to police to pay close attention to the car. Minnesota, an early adopter of such a law, uses the letter "W"—hence the term "whiskey plate"—on a plain white background.

Offenders in Washington would be required to display the special plates for three years after their driving privileges are restored. Republican Rep. Norma Smith of Clinton, Wash., who introduced the bill earlier this month, said it would give police another tool to crack down on a dangerous practice.

"The recidivist rate on drunk-driving is extremely high," she said. "Too many people continue to die these needless deaths."

The bill won't come to a vote for several months, but opponents are already making their voices heard.

Vanita Gupta, deputy legal director of the American Civil Liberties Union, said whiskey plates were part of a "trend of overcriminalization" in the U.S. "These sorts of laws just create obstacles to offenders getting fresh starts and moving forward with their lives," she said.

Mothers Against Drunk Driving Chief Executive Kimberly Earle said the organization supports whiskey-plate laws as a "useful tool" for police, but that MADD is more focused on measures it believes have a better track record for preventing drunk driving, such as requiring offenders to pass a car-mounted breathalizer to enable their engine to start.

A handful of other states have adopted similar laws. In Minnesota, certain drunk-driving offenders are required to attach special plates to their car for a year after their driving privileges are restored. An earlier version of the Minnesota law was enacted in 1988. Drunk-driving-related fatalities have fallen steadily since.

Jean Ryan, Minnesota's impaired-driving program coordinator, said that a host of factors were likely involved in that drop, including strengthened enforcement efforts.

Matt Langer, a captain with the Minnesota State Patrol, said that while he had arrested drivers whose cars had whiskey plates on new drunken-driving charges, it was also routine to drive past them, with "nothing to be concerned about."

David Risk, a criminal lawyer in Minneapolis, said the law could have unwelcome ramifications. He said he had a client whose wife ran a day-care center that owned several vans, all of which were co-registered in his client's name. After his client's blood-alcohol test came back with a reading over the legal limit, Mr. Risk said, the Department of Public Safety told the day-care center it had to get whiskey plates for all its vans.

"You can imagine that didn't do wonders for business," he said.