Police Can GPS Track You After A DUI

Who knew? Police can track you via GPS after a DUI. A Washington State DUI conviction carries with it a requirement of at least one year of ignition interlock on any car that you drive. Even before a conviction, a license suspension means you can’t drive unless you have an ignition interlock in your car. Some courts require ignition interlock as a “condition of release” which means it is required from the first appearance in court until the end of the court case, no matter what the DOL says.
Most folks know that an ignition interlock device (commonly referred to as the “blow and go”) requires you to blow into the device before your car will start and periodically when the car is being driven. If alcohol is detected, the car won’t start. If you are driving, the horn will honk and the headlights will start blinking if alcohol is detected. Over the years, the legislature has quietly added two features to the interlock: (1) The interlock must have a camera that records a photo of the person blowing and (2) the interlock must have a GPS that records the exact location of the car when the device is used. By law, the photos and GPS coordinates must be stored by the interlock provider. The photos and coordinates are not protected by law from disclosure. In fact, the interlock provider cannot refuse to hand the data over to the Washington State Patrol upon request – no search warrant required. The photos and GPS logs are “to be used for circumvention and tampering investigations.” Most people likely won’t care about this type of government-mandated tracking unless they are required to have an interlock to drive. Then, it hits home.

Courtesy: SmartStartThis provision of Washington State’s interlock laws was passed without any press coverage of the photo or GPS requirement. Supporters would say it is only a slight loss of privacy to the driver, required by the state as a condition of being able to drive after a DUI. On the other hand, it’s a bit creepy that the state is now, by law, tracking the every day movements of thousands of citizens under the authority of Washington state DUI laws. The Washington Court of Appeals has considered whether GPS surveillance is a violation of the right to  privacy. In 2003, before the GPS/interlock law, the court said: “We conclude that citizens of this State have a right to be free from the type of governmental intrusion that occurs when a GPS device is attached to a citizen’s vehicle, regardless of reduced privacy expectations due to advances in technology. We hold that under article I, section 7 a warrant is required for installation of these devices.” To date, the legality of warrantless GPS tracking via interlock has not been addressed by our courts.

Resources: RCW – Standards for Interlocks

(Photo courtesy SmartStart)

To Do: After a DUI License Suspension.

A good DUI defense attorney will focus on avoiding the DUI license suspension that the DOL seeks to impose after a DUI arrest or conviction. There are separate ways that the license can be suspended – administratively, due to a refusal to submit to the test or because the reading exceeded the legal limit, or due to a conviction of an offense such as DUI for which license suspension is mandatory. If you have served a DUI license suspension,  you are still not legal to drive unless you “reinstate” your license. The DOL does not automatically give you your license back after you have served a suspension. To complicate matters, the requirements for reinstatement are different depending upon the type an length of license suspension. Remember, if your license is suspended, you will need to reinstate the license after serving the suspension in order to drive legally. Fortunately, the DOL has created a web-tool that will step you through the process, and it is pretty easy to access. In some cases, simply payment of a reinstatement fee is required. In others, filing SR-22 insurance, an alcohol evaluation and follow-up treatment is required. In still other cases, you’ll need to take the written and driving exams in addition to other requirements before the license is reinstated. The forms sent by DOL on license suspension are not very helpful when it comes to the requirements for license reinstatement, but the DOL webpage is helpful. Here’s the DOL link that steps you through the reinstatement process: https://fortress.wa.gov/dol/dolprod/dsdreinstatements/. You can always give my office a call (425) 274-9190 for help with this or any criminal traffic related problem. We offer representation for all DUI and traffic related matters, focusing upon cases arising in Western Washington, but offering representation in certain cases in counties east of the mountains.

Throw Minors in Prison for Marijuana?

Washington State Marijuana LawThe recent legislative tinkering with the law legalizing marijuana in Washington State, has increased the level of criminal consequences faced by anyone under the age of 21 who possesses marijuana. Recent legislation raised the crime level for minor possession of marijuana from a misdemeanor to a felony. As reported by Komo News, the bill’s sponsor, Sen. Ann Rivers, R-La Center, said the tougher penalty was designed to deter minors from trying an adult drug. “We have to send a message to our kids: This will hurt you in more ways than one if you decide to participate,” Rivers reportedly said. Governor Inslee’s office stated that this was not the Governor’s intention when he signed the bill. The devil is in the details, as they say. Until the legislature can fix this problem, it will be up to prosecutor to “temper justice with mercy” when filing and prosecuting such cases and failing that, a good defense attorney will come in handy. Click here to watch a King 5 news item about legalizing marijuana and DUIs.

Questions? Call Jon Fox at (425) 274-9190.

Jon Scott Fox Listed as “Super Lawyer” for 2015

1050 cropped(2017 Update!) Jon Scott Fox has been named a 2017 “Super Lawyer”  by the Super Lawyers rating service which names outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Each year, no more than five percent of a state’s attorneys receive the honor. Jon has been named to list this every year since 2003.

Jon is widely recognized as one of Washington state’s top DUI and criminal defense attorneys. As a trial lawyer, speaker, and author, he has been honored by Seattle Magazine as being a King County “Top Lawyer,” and Washington Law and Politics magazine has listed him as one of Washington state’s “Top 25” criminal defense attorneys. Jon has been given Avvo’s very highest professional ranking, and for the last decade he has received a Martindale-Hubbell AV® Preeminent™ rating. This rating is given to attorneys who demonstrate the highest ethical standards and professional ability. However, Jon’s most important accolades come from the clients he has represented. A collection of those can be found by clicking here.



Defending DUIs in Washington Treatise 2015

Defending  DUIsThe book Defending DUIs in Washington contains latest in the law and technology in the field of DUIs and is referenced by attorney and judge alike as authoritative. Every phase of defending a DUI case effectively is covered in the manual. The author of this webpage, Jon Fox, has been an author of Defending DUIs for over 20 years. The manual is updated annually and this year’s updates are extensive, covering the newest DUI laws, procedure, and the Draeger 9510 breath testing device that was introduced into Washington State in November, 2014.

Questions: Call Jon Fox at (425) 274-9190.

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A New Breath Testing Machine in Washington State

For more than 30 years, Washington state law enforcement has been using a breath testing machine known as the BAC Verifier Datamaster to test people who have been arrested for DUI. By today’s standards, this machine is antiquated technology. A Washington State Patrol email your author obtained in connection with a DUI case describes the Draeger Alcotest - DUI Breath Test Machinedata master “obsolete.” In recent years, the state patrol has had difficulty maintaining this machine. It is out of warranty, and replacement parts were difficult to find. Approximately 5 years ago, the state patrol embarked upon a search for a replacement machine. The new machine, the Draeger Alcotest, was purchased and approved for use more than three years ago. However, for reasons that are yet to be determined, it was not placed into police departments for use with live subjects until just a few months ago. The true reasons for the delay in placing into the field what otherwise would appear to be a brand-new state-of-the-art machine have not been revealed by the state patrol. However, it is expected that discovery in upcoming criminal cases will provide the answer.

At this time, the Draeger  has been installed in police stations in a few counties in Washington state. What makes the Draeger unique is that whereas the DataMaster breath test machine provided two breath test readings, the Draeger provides four breath test readings.  The individual is required to blow twice into the machine, the machine  analyzes each breath sample using two separate technologies:  Infrared Spectroscopy and Electrochemical Analysis.  If you are reading this after you have been arrested for a DUI,  you can tell whether you were tested on the old machine or the new machine by looking at the breath test document.

The author of this blog has already  spoken at three separate seminars devoted to educating attorneys  about the Draeger and is currently working on a new chapter in the book Defending DUIs in Washington that will detail the operation of the machine and potential defenses.  This chapter will be co-authored by attorney Ted Vosk, who is nationally known for his advocacy for integrity in breath testing.

Questions? Call Jon Fox at (425) 274-9190.


A new DUI breath testing machine for Washington State?

Washington State is slowly moving forward with plans to deploy new DUI breath testing machines.  The state has already purchased a number of machines, the Draeger 9510, and is in the process of testing them before deploying them to be used in actual DUI arrests.  The state is buying new breath test machines because the machines currently in place (known as DataMasters) are old technology, out of warranty, and are wearing out.  As of the date of this blog, none of the new machines are in actual use in the field.  However, the latest evidence that the state is moving forward with these new DUI breath test machines was the quiet passage of HB 2465.  This new law, effective June 10, 2010, amends RCW 46.61.506 to permit the use of “dry gas” in the administration of a breath test to DUI suspects.  The term “dry gas” refers to a vapor which will be introduced into the breath testing machine pursuant to testing protocol and the purpose is to determine whether the machine is properly calibrated.  Prior law had only authorized the use of a liquid simulator solution in connection with the testing of DUI suspects.

Politics, DUI and the new cell phone law

As of June 10, 2010, Washington State has a new cell phone law.  The publicity surrounding this law has mainly focused on the fact that the new law changes cell phone violations from a “secondary offense” for which a police officer may not stop you, to a “primary offense” for which a police officer may stop you and give you a ticket.   However, some of the details of this law have not received much publicity.  For instance, you can still make a call using your cell phone while driving so long as you don’t hold the phone to your ear.  Specifically, the law (RCW 46.61.667) states: “a person operating a motor vehicle while holding a wireless communication device to his or her ear is guilty of a traffic infraction.” Therefore, under the law it is legal to place your cell phone into speakerphone mode, hold it in front of your face, and make the call.  How is this less dangerous than holding the phone to your ear?

The law states that it is illegal to send, read, or write a text message while driving.  However the term “text message” has no definition in the statute.  This term is generally understood to mean SMS messaging, as opposed to an e-mail message delivered via Blackberry or Microsoft Exchange messaging systems.  No Washington State court decision has interpreted this term to date.

The politicians have stated that this law is all about public safety, just like the Washington State DUI laws, but is this really the case?  The Washington State Department of Licensing states on its web site that a driver talking on a cell phone is as impaired as a drunk driver with a reading of 0.08 blood alcohol.  The DOL also says on its website that a driver who is texting poses the same danger as a drunk driver who is twice the legal limit -0.16 blood alcohol.  We all know that Washington State DUI laws are among the toughest in the nation, designed to address the danger posed to the public by drunk driving.  The penalty for a DUI conviction with a breath test reading of 0.08 will include license suspension, mandatory jail, mandatory fines, mandatory probation, and alcohol classes. A DUI conviction stays on the record for life and it is reported to the driver’s insurance companies via department of licensing records (resulting in “high risk” insurance for DUI drivers.)  In contrast, the new cell phone law specifically states that a cell phone ticket will not go on the driver’s record, and it will not be reported to insurance companies.  Moreover, the fine is $124.

If cell phone driving is as dangerous as drunk driving, then why is the penalty a mere $124?  Also, if cell phone drivers are more dangerous than other drivers, then why is a cell phone ticket not reported to the driver’s insurance company?  The end result is that safe drivers will wind up bearing the increased insurance cost brought about by the risky conduct of cell phone law violators, if the danger posed by cell phone use is truly equivalent to drunk driving.

The ultimate question is this: Is the new cell phone law really about public safety, or is it actually about revenue collection?

The new cell phone law will undoubtedly result in drivers in Seattle and other places in Washington state being stopped by police and if alcohol is smelled, a DUI investigation and arrest.  The validity of the initial detention is always a key issue in a DUI case. Fox Bowman Duarte can be reached at (425) 451-1995.

DUI arrest leads to loss of custody of kids?

Every year, Washington State legislature amends the DUI laws in an effort to make the DUI laws even tougher or to “tune up ” the laws. This year’s legislative session resulted in the passage of HB 3124, a law that went into effect June 10, 2010. The law requires that a police officer who makes a DUI arrest must “promptly notify Child Protective Services” whenever a child under the age of thirteen is present in the vehicle. The details are in the full text of the law, presented below.

There are already a number of “automatic” consequences that accompany a DUI arrest. For instance, if the breath test reading is over 0.08, expect mandatory license suspension, mandatory jail, mandatory fines, mandatory ignition interlock, mandatory conditions of probation, and now, mandatory reporting of the parent’s name to child protective services. It is worth noting that this law applies not only in DUI arrests, but to an arrest for any “drug or alcohol related driving offense.” Also, the law applies only when the vehicle is being driven by a parent, guardian, or legal custodian of the child. As a side note, Washington’s DUI laws also require an increased penalty of sorts in the case of an individual who is convicted of DUI and who had a child under the age of 16 in the vehicle: an additional 60 days of driving only with an ignition interlock will be required beyond whatever other licensing penalties may be imposed. See RCW 46.61.5055(6).

The full text of the law is set forth below.

A law enforcement officer shall promptly notify child protective services whenever a child is present in a vehicle being driven by his or her parent, guardian, or legal custodian and that person is being arrested for a drug or alcohol-related driving offense. This section does not require law enforcement to take custody of the child unless there is no other responsible person, or an agency having the right to physical custody of the child that can be contacted, or the officer has reasonable grounds to believe the child should be taken into custody pursuant to RCW 13.34.050 or 26.44.050. For purposes of this section, “child” means any person under thirteen years of age.

Any Washington State DUI arrest is a serious matter. The lawyers at Fox Bowman Duarte are available 24/7 to help.  Call (425) 451-1995 to reach us.

Talking on Cell Phone Leads to DUI arrest?

Experience has shown that many DUI arrests result from the police stopping a car for reasons that have nothing to do with driving under the influence. For instance, many DUI arrests in Washington State result from an investigation following an officer stopping a vehicle for speeding, failing to use a signal, or similar rather innocuous but justifiable reasons for the detention. Beginning June 10, 2010, the police will have yet another reason to stop a vehicle: Operating a motor vehicle while holding a wireless communication device to the ear. The new law will be in the books as RCW 46.61.667. The law does not require that the driver be talking on the phone. It states exactly that the police may stop the vehicle and if the driver is “holding a wireless communication device to his or her ear.” As of June 10, 2010, this becomes a primary offense which permits law enforcement to stop a vehicle even if no other traffic infractions have occurred.

“Bad” driving is not an element of a DUI charge, although it usually is expected that some driving errors will occur if a person is under the influence of alcohol. In practice, police officers patrolling late at night in search of DUI drivers will stop a vehicle for the most minor traffic infraction as a way to determine whether this particular driver has been drinking. The same traffic infraction likely would result in no police action if it occurred in the middle of the day. Officers have many tools under the law in their quest to apprehend the drinking driver and investigate that person as a possible DUI. Beginning June 10, illegal use of the cell phone will be added to the list of reasons that may justify a detention that results in a DUI arrest.