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: