Quick Answers For Your DUI Questions

Rules of the Road: Washington's Lane Travel Statute

2011-04-29T09:54:00.000-07:00

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.

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

2011-04-08T10:24:00.000-07:00

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:
THE DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING MANUAL by Stephen L. Jones

News Continues Surrounding SPD DUI Investigation

2011-04-01T10:20:00.000-07:00

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:
http://www.komonews.com/news/local/118473284.html
http://www.seattlepi.com/local/437478_police22.html
http://seattletimes.nwsource.com/html/localnews/2014560548_duiprobe22m.html

Seattle Police Department DUI Squad Investigation

2011-03-22T09:20:00.000-07:00

Below is a report by King 5 News featuring attorney Raymond Ejarque. For the full story and video visit: http://www.king5.com/news/TIMES--118384084.html

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.

by LINDA BRILL / KING 5 News

Illegally Driving Under the Influence of Legally Prescribed Medication

2011-03-04T10:47:00.000-08:00

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.

References:
http://www.nytimes.com/2010/07/25/us/25drugged.html?_r=1

Danger Ahead: What Commercial Drivers Stand to Lose

2011-03-01T09:53:00.000-08:00

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.

License Plate Tags for Drunk Drivers: A Wrong Turn?

2011-02-25T10:42:00.001-08:00

Below is a story published on February 25, 2011, in the Wall Street Journal. For more information about this article, please visit: http://online.wsj.com/article/SB10001424052748704520504576162402821321860.html?mod=googlenews_wsj#articleTabs%3Darticle

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.

I Got a DUI for Christmas

2011-02-24T12:44:00.000-08:00

Long lines at the mall and Grandma’s fruitcake are no longer the only things to worry about during the holiday season. With the Drive Hammered, Get Nailed campaign in place, holiday drivers ran an increased chance of being stopped and arrested for a DUI in the State of Washington.

The winter Drive Hammered, Get Nailed campaign began on November 25, 2010 (Thanksgiving Day), and ran through January 2, 2011. During this time, state and local law enforcement conducted extra DUI patrols throughout King County in attempts to keep impaired drivers off the roads during the holiday season.

This campaign was a joint effort, funded by both the King County Target Zero Task Forces and a grant from the Washington Traffic Safety Commission. Within King County, the following Police Departments participated in extra DUI patrols over the holidays: Algona, Auburn, Bellevue, Black Diamond, Burien, Covington, Clyde Hill, Des Moines, Federal Way, Issaquah, Kent, Kirkland, Maple Valley, Mercer Island, Newcastle, Normandy Park, North Bend, Pacific, Redmond, Renton, Sammamish, Seatac, Seattle, Snoqualmie, and Tukwila. In addition to the local Police Departments, the Washington State Patrol also participated in extra DUI emphasis patrols.

The winter campaign resulted in a total of 3,577 statewide DUI arrest. In King County alone, 876 drivers were stopped and arrested for a DUI within this roughly 38 day period.

This wasn’t the first time the Washington Safety Traffic Commission organized a DUI enforcement campaign. This past summer, from August 12 through September 6, 2010, the Drive Hammered, Get Nailed campaign was implemented as the largest ever summer DUI enforcement campaign. Over 178 police agencies participated in the campaign statewide.

Given the number of arrests made during the winter campaign and the existence of a previous summer Drive Hammered, Get Nailed campaign, it would not be surprising to find that state and local law enforcement may decide implement the campaign again during the summer months. Remember, these campaigns mean that even the casual, non-impaired drivers could be caught up in a DUI task force event when there is more pressure than usual to make DUI related arrests.

Who, Me? How Diabetes and Diet Restrictions Can Lead to a Wrongful DUI Accusation

2011-02-22T14:04:00.000-08:00

In reality, police officers have very little training in detecting accurate levels of intoxication; there is no “inherent skill” to detect when someone is intoxicated. In fact, police officers are predisposed in a drunk driving investigation to "see" what they expect to see, disregarding any alternative explanations. Because of this, police officers have been known to mistakenly assume a driver is intoxicated, when in fact they suffer from diabetes or hypoglycemia.

How can diabetes and hypoglycemia affect field sobriety tests?

Diabetics experience hypoglycemia when their blood sugar levels are low. The symptoms of this condition include inability to balance, staggering, slurred speech, drowsiness, flushed face, disorientation, and impaired motor control. These symptoms are easy to confuse with that of a drunk driver. Since these symptoms are so similar to intoxication, a person experiencing them will most likely fail his/her field sobriety tests. This leads to diabetics experiencing hypoglycemia to be wrongfully arrested for drunk driving on countless occasions.

If an individual suffering from diabetes or hypoglycemia enters a state of ketoacidosis he/she may also exhibit what appear to be signs of intoxication. Ketoacidosis occurs when too many ketones are produced in the body. Similar to diabetes and hypoglycemia, the symptoms of ketoacidosis can appear similar to signs of alcohol or drug impairment. The symptoms include a flushed face, drowsiness, loss of energy, poor coordination, and stale breath which can be mistaken for the odor of an alcoholic beverage.

How can diabetes and hypoglycemia affect my BAC?

Breath tests are designed to measure Blood Alcohol Concentration (BAC) to show the amount of alcohol present in a person’s bloodstream. The BAC device uses infrared beams of light that are absorbed by chemical compounds in the breath. These tests look specifically for ethyl alcohol, which is found in alcoholic beverages.

Since these tests measure chemical compounds in the breath (and not actual alcohol) the machines are programmed to assume that chemical compounds similar to ethyl alcohol are probably the result of consuming alcohol. There are actually thousands of compounds that can register as the type of alcohol consumed from drinking an alcoholic beverage.

Isopropyl alcohol commonly registers as ethyl alcohol on a breath test. Ketones cause the body to create isopropyl alcohol. A diabetic who has developed ketoacidosis or has ketones on his/her breath may give a high BAC reading even if they have not been drinking. This is because the breath testing device mistakes the isopropyl alcohol produced by the ketones for the type of alcohol found in alcoholic beverages.

How can my low-carb diet affect my BAC?

There are also self-imposed diets, such as high-protien/low-carbohydrate diets, that can adversely affect a breath test. When people significantly reduce their carbohydrate intake, their bodies will look to stored fat for energy. This causes the body to produce ketones for energy.

Like diabetics, individuals on low-carb diets will have ketones on their breath. When ketones are in the breath, the isopropyl alcohol detected by a breath test shows up the same as ethyl alcohol (what is actually found in alcoholic beverages).

Further, if an individual on a low-carb diet were to actually consume even a small amount of alcohol, then the BAC would be falsely elevated even more simply because of the keteones that are naturally produced by the body.

What does this mean for my DUI defense?

Until police become more aware of how medical conditions and diet restrictions can mimic intoxication and driving impairment, innocent people will likely face wrongful DUI charges. Judges have ruled that low blood sugar may not be a defense against negligent driving. However, it is still imperative to tell a DUI defense attorney if any of these situations may explain your unjust drunk driving charges, as it could help grant a dismissal of a DUI charge.

References:
Lawrence Taylor "Drunk Driving Defense" 3d Edition.
"Hypoglycemia: Driving Under the Influence" in 8(1) Medical and Toxicological Information Review Sept. 2003.
Brick, "Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study", 9(1) Alcohol, Drugs and Driving (1993).

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

2010-06-21T15:34:00.000-07:00

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.

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

2010-06-18T11:39:00.000-07:00

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.

Overhearing Your Constitutional Rights Being Violated.

2010-06-08T10:03:00.000-07:00

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.

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

2010-06-07T12:41:00.000-07:00

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): http://seattletimes.nwsource.com/html/localnews/2011865286_apwacellphoneenforcement.html

Does Seattle Turn a Blind Eye to Marijuana Possession?

2010-06-04T12:14:00.000-07:00

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 www.thestranger.com)

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.

Are the Field Sobriety Tests Truly Voluntary?

2010-06-03T16:02:00.000-07:00

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.

Do I need to apply for an Ignition Interlock license even if I don't drive?

2009-12-17T12:00:00.000-08:00

Many people wonder if they should save money and skip the Ignition Interlock license (and hence, installation of the Ignition Interlock device) altogether. It is important to note that if you receive a conviction for an alcohol-related DUI you will be required to have Ignition Interlock for at least one year upon suspension of your license. Further, if you opt for Deferred Prosecution, you will still be required to have the Ignition Interlock license for two years.

Deferred Prosecution is available to those in the state of Washington who have been charged with a misdemeanor or a gross midemeanor (RCW 10.05.010 (1)). The intent of the statute was to create an alternative to punishment through a treatment program. The alternative to punishment depends on the success and cooperation of the individual receiving treatment. To qualify, the individual must allege that the wrongful conduct was the result of "alcoholism, drug addition, or mental problems for which the person is in need of treatment and unless treated the probability of future recurrence is great [...]." Other requireents include agreement to pay and be able to pay the costs of treatment and an assessment by an approved alcoholism and/or drug treatment program (RCW 10.05.020 (1)).

Recollect that Deferred Prosecution operates as a plea agreement and therefore it is generally a condition of this plea agreement that the judge orders the individual to get the Ignition Interlock License (or, in the alternative, a judge may allow an ankle bracelet).

In some cases, the court will waive the Ignition Interlock License requirement if the court finds that there are no devices reasonably available in your area or the individual does not "operate a vehicle" (RCW 46.61.5055 (5)(d)). The statute goes on to say that when the requirement is waived by the court, the court shall "order the person to submit to alcohol monitoring through an alcohol detection breathalyzer device, transdermal sensor device, or other technology designed to detect alcohol in a person's system." You will be required to pay for this (RCW 46.61.5055 (5) (e)). You should discuss with your attorney the pros and cons of this alternative to assess its possible costs to you.