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.

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.


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.

30 Days for Refusing a DUI Breath Test?

One of the relatively unknown aspects of Washington State DUI law is that the penalties for violations of certain mandatory requirements of probation will result in mandatory sentences that the judge must impose. Take the case of an individual for whom this is the first DUI conviction. Either one or two days of jail time would likely be imposed, along with other penalties, and the judge would “suspend” all of the remaining jail time (nearly a year of jail time) on condition of compliance with the terms of probation. If there is a violation of probation, the judge has the power to impose some or all of the remaining jail time. In certain circumstances, however, the judge is required to impose 30 days of confinement. The applicable statute, RCW 46.61.5055, is set forth below.

(11)(a) In addition to any nonsuspendable and nondeferrable jail sentence required by this section, whenever the court imposes less than one year in jail, the court shall also suspend but shall not defer a period of confinement for a period not exceeding five years. The court shall impose conditions of probation that include: (i) Not driving a motor vehicle within this state without a valid license to drive and proof of financial responsibility for the future; (ii) not driving a motor vehicle within this state while having an alcohol concentration of 0.08 or more within two hours after driving; and (iii) not refusing to submit to a test of his or her breath or blood to determine alcohol concentration upon request of a law enforcement officer who has reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The court may impose conditions of probation that include nonrepetition, installation of an ignition interlock device on the probationer’s motor vehicle, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate. The sentence may be imposed in whole or in part upon violation of a condition of probation during the suspension period.

(b) For each violation of mandatory conditions of probation under (a)(i), (ii), or (iii) of this subsection, the court shall order the convicted person to be confined for thirty days, which shall not be suspended or deferred.

As you can see, section (b) states that upon a violation of the mandatory conditions of probation the court “shall order the convicted person to be confined for 30 days.” Therefore, an individual who is on DUI probation and who is stopped by police officer and asked to take a breath test, and who refuses to take that breath test, would be in violation of a mandatory condition of probation and therefore, the judge must order the person to be confined for 30 days. What does “confined for 30 days” mean? Although this term would appear to mean jail time, in fact, principles of statutory interpretation have been argued with some success that the use of the word “jail” in connection with other sections of the DUI penalty law implies that “confinement” as used in this section may or may not include jail. Therefore, some judges have been persuaded that an individual who has been found to be in violation of the mandatory condition of DUI probation could be sentenced to 30 days of “confinement” in the form of 30 days electronic home detention and in some cases, in the form of enrollment and participation in a 30 day inpatient alcohol treatment program. Other judges read the law quite literally to require jail (and only jail) as the sanction to be imposed upon a violation of any of the mandatory probation conditions.
In any event, an aggressive and a reasoned DUI defense may well avoid probation altogether. If probation is imposed and a violation of probation is alleged, the probationer would be well advised to retain the best lawyer he or she can find because, as we have seen, the penalty imposed for violating probation in many cases is jail time well in excess of that which was required to be served upon the conviction itself.

Meteors, Cosmic Rays and DUI defense

Meteor DUI DefenseRecent happenings (March, 2010) reveal some unusual defenses to DUI charges. First, there was the decision of the Court of Appeals in State of Washington vs. Richard Charles Tracer, No. 37812-4-II. This was a Washington State DUI/Vehicular Assault case where the Court of Appeals discussed the propriety of the legal procedure employed by the trial court in appointing a special prosecutor to handle the case when the “regular” prosecutor failed to appear for a hearing. The case involved a Vehicular Assault charge where the defendant’s vehicle collided head-on with another vehicle. The defendant’s blood alcohol was .13 according to court records. One way a misdemeanor DUI becomes a felony Vehicular Assault is where the DUI driver causes substantial bodily harm to another person. The defense challenged whether the injury was “caused” by the defendant. If the swerve of the defendant’s vehicle was due to something beyond the defendant’s control, he did not “cause” the substantial bodily harm to the other driver. Enter the meteor. Literally. As the court put it:  “According to his defense attorney, on May 25, 2007, Richard Charles Tracer collided with another vehicle after the car he was driving was hit by a meteor. Tracer’s counsel told the Jefferson County Superior Court that because it was the meteor and not Tracer’s .13 blood alcohol level that caused the collision, the special deputy prosecutor appointed to handle the case had agreed to allow Tracer to plead guilty to driving while under the influence (DUI).” The published court record does not reveal whether there was physical evidence of a meteor striking the defendant’s vehicle or whether anyone saw the meteor enter the earth’s atmosphere, streaking towards the defendant’s vehicle to keep its date with destiny. However, according to some sources, the chances of a meteorite striking a human are such that it is expected to happen once every 186 years. A car presents a larger target but nonetheless, it might be a hundred years before the meteorite defense is seen again in a court of law.

One lesson from all this, that that “cosmic events” might well impact ordinary life, is reinforced by the recent Toyota Prius “unexplained acceleration” problems that we have heard so much about. It seems that some instances of unexplained acceleration remain unexplained. The company was unable to duplicate any aspect of the unexplained acceleration that a Los Angeles driver said occurred in his Prius in a widely publicized case recently. A few days after this incident, a news article entitled “Toyota mystery: Could cosmic rays be the culprit?” by reporter Justin Hyde was widely published. The article stated: “It may sound far-fetched, but federal regulators are studying whether sudden acceleration in Toyotas is linked to cosmic rays… Radiation from space long has affected airplanes and spacecraft, and is known for triggering errors in computer systems, but has received scant attention in the auto industry.” The article further states: “Electronics makers have known for decades about “single event upsets” (SEUs) — computer errors from radiation created when cosmic rays strike the atmosphere. Yet, the tipster last month told the National Highway Transportation Safety Administration (NHTSA) that “the automotive industry has yet to truly anticipate SEUs.”
All of which brings us to breath testing in Washington State DUI cases. Washington State’s DUI breath test machine is computer controlled, as is the Prius control system. Washington States’ DUI breath test machine is, however, based upon 1980’s computer technology. Your author is familiar with a number of cases where the alcohol that was reported as being consumed does not add up to a breath test reading over the legal limit. Could cosmic rays be the culprit? We’ll never know. The issue has never been studied. Although the potential impact of cosmic rays upon breath testing might seem farfetched, the same was said about the defense assertions, later substantiated, that radio frequency interference (such as from an officer’s handheld radio) could impact breath test results. Today, every state of the art breath DUI breath testing machine is protected in one way or another from the impact of radio frequency interference but there is no shielding for cosmic rays.

DUI Jury Renders Verdict on System of Justice

Recently I represented a client who was charged with DUI in the Seattle area after a detention and arrest by a local police officer. A review of the police report led me to believe that this could be a difficult case. All the “signs” police are trained to look for were in this report: Weaving, speeding, bad balance, horizontal gaze nystagmus, strong odor of alcohol, flushed face, bloodshot eyes, and more. I later learned in a pretrial motion that this officer had years of experience making DUI arrests in various jurisdictions and that he had extensive Drug Recognition Expert (DRE) training. He was no stranger to the courtroom, having faced many defense counsel in trial. He was confident, even cocky in his courtroom demeanor.

On the defense side were two witnesses, neither of who were with the accused for the entire evening, and, of course, the accused himself. From the start my client said he was not guilty, that he had refused the breath test because he did not trust the machine, and that he requested a blood test. The evidence was hotly contested on these points in trial. (By the way, I generally recommend taking, not refusing the breath test, but that is the subject of extensive writing elsewhere throughout our website and this blog.)

Several key members of our firm participated with me in the preparation of this case for trial. When the trial began, I was prepared with transcripts of prior testimony of this officer in hearings connected with this case, police manuals pertaing to training and procedures, and photographs/maps of the area of driving and arrest. Audio CDs of the prior hearings were in my briefcase in case the witness should deny the validity or accuracy of the transcripts of prior testimony.

During trial, the officer revealed himself to be extremely confident and at ease in the courtoom – too much at ease, perhaps.  He responded to a question from the prosecutor in a manner that was disrespectful and he interrupted the judge on one occasion. On cross examination, he was a difficult witness, but during the examination it was revealed that he had not told the jury the whole story regarding his DUI knowledge.  He left the jury with the false impression that he had extensive knowledge due to his DRE training but although he had  completed the academic portionof the training, he could not even name the basic twelve steps of the DRE protocol. He did not follow correct procedures for the nystagmus test, which rendered the test invalid, but until this was brought out on cross examination the jury was left with the false impression that the test was validly performed. There were a few other instances of such behavior but it was clear midway through the trial that the defense would argue that  the officer’s credibilty was suspect. Let me say right here that the vast majority of officers I have faced in trial have not conducted themselves in this fashion and they bring credit to their profession. However in this case I argued to the jury that this case had become a referendum about the trial process. Would the jury approve of such disrespect for the Oath to tell the whole truth and nothing but the truth while on the stand? Should they give any credibility to the testimony of a witness who is willing to leave them with half truths and false impressions? The verdict of acquittal by this Seattle jury in this case was more than a judgment about whether the DUI charge was proved beyond a reasonable doubt. It was a statement by the jury that above all, the integrity of our judicial system must remain inviolate.


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Work Vehicle exception to Ignition Interlock Requirement

An ignition interlock license is a license that permits one to drive during a period of license suspension resulting from a DUI arrest or conviction so long as the vehicle being driven is equipped with an ignition interlock device and SR22 insurance is in place. See RCW 46.20.385. Prior law required the device to be installed in ANY vehicle driven by the accused, and this undoubtedly resulted in quite a few folks being fired where their employment required the driving of a company car. Thus, the ignition interlock law has an exception. The law states: “The installation of an ignition interlock device is not necessary on vehicles owned by a person’s employer and driven as a requirement of employment during working hours.” Thus, a license suspension due to a DUI arrest/conviction need not mean loss of job. However, the DOL does require proof that the driver falls within the “employer vehicle exception.” The law states: “The person must provide the department with a declaration pursuant to RCW 9A.72.085 from his or her employer stating that the person’s employment requires the person to operate a vehicle owned by the employer during working hours.” The DOL provides a form (downloadable here) to be signed by the employer and filed by the driver, that must be filed with DOL in order for the driver to be approved to drive the employer’s non-ignition interlocked vehicle. The problem is that, as a practical matter, there will be some employers who will fire the driver when presented with the form simply because they now perceive the employee as an increased risk when driving a company vehicle. There is no doubt that the law providing for an employer vehicle exception is better than the same law without such an exception but as with most things, this law is not perfect. Avoiding this situation altogether is the best approach. Diana Lundin of our office focuses her practice on DOL administrative hearings and ultimately, upon the task of saving a client’s license from DOL administrative suspension and/or ignition interlock requirements.

Seafair 2009 Boating Under the Influence Emphasis Patrols Slated

As has happened every year recently at Seafair, the Washington State Patrol is joining with other law enforcement agencies to aggressively enforce Washington state’s Boating Under the Influence (BUI) law.  These agencies will be making arrests of persons suspected of boating under the influence and they will be given breath tests at the Washington State patrol’s Mobile Impaired Driving Unit (MIDU-discussed at another blog on this website). The police authorities have set up facilities on the shores of Lake Washington to detain and process individuals who are arrested for boating under the influence.

Undoubtedly, many of the boaters have not reviewed Washington state’s law regarding boating under the influence, and these boaters most likely have no idea of the penalties they potentially face.  Here is Washington State’s law regarding boating under the influence:

RCW 79A.60.040

Operation of vessel in a reckless manner — Operation of a vessel under the influence of intoxicating liquor — Penalty.

(1) It shall be unlawful for any person to operate a vessel in a reckless manner.

(2) It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if:

(a) The person has 0.08 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person’s breath made under RCW 46.61.506; or

(b) The person has 0.08 percent or more by weight of alcohol in the person’s blood, as shown by analysis of the person’s blood made under RCW 46.61.506; or

(c) The person is under the influence of or affected by intoxicating liquor or any drug; or

(d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section. A person cited under this subsection may upon request be given a breath test for breath alcohol or may request to have a blood sample taken for blood alcohol analysis. An arresting officer shall administer field sobriety tests when circumstances permit.

(3) A violation of this section is a misdemeanor, punishable as provided under RCW 9.92.030. In addition, the court may order the defendant to pay restitution for any damages or injuries resulting from the offense.

These boaters will be asked to submit to a breath test, the same as if they were arrested for DUI in Seattle or elsewhere in Washington State. However, unlike the DUI laws that regulate motor vehicles, there is no loss of driver’s  license for failing to submit to a breath test when arrested on suspicion of BUI. What many boaters do not know, however, is that refusing to submit to a breath test will be result in the Coast Guard presuming the boater to be under the influence of alcohol in a subsequent Coast Guard administrative hearing at which fines can be imposed.

Many of those arrested will be given the same field sobriety tests that are administered in the case of any Washington state DUI, and, surprisingly, sometimes these tests are administered on a boat, which almost certainly renders the results of these field sobriety tests suspect or simply unreliable. Accordingly, the BUI law states that “An arresting officer shall administer field sobriety tests when circumstances permit.” A government-sponsored study regarding administration of field sobriety tests on the surface of a bobbing boat to be pretty much “as accurate” as the same tests administered on land, defying all logic and common sense.

One relatively unknown implication from an arrest and conviction for boating under the influence is that the Coast Guard can take administrative action against the accused, levying significant fines (up to $5,000) through an administrative process.  (See also the penalty chart referencing BUI in the Code of Federal Regulations.) The administrative process does not carry with it the same protections that a citizen enjoys if accused of a crime in this state.

Boating Under the Influence used to be viewed as a relatively minor offense.  Indeed, as a simple misdemeanor, it is the lowest level of crime that can be committed in Washington state with a maximum sentence of a $1000 fine and 90 days in jail.  However, most citizens would not consider the potential of such jail time and fines to be “minor,” and those citizens would be well advised to seek counsel familiar with BUI laws and procedures. Our firm has handled a number of BUI cases and is familiar with the nuances of the law impacting citizens who are accused of boating under the influence.

Seattle DUI Alcohol Evaluation Explained

A conviction for DUI arising out of a Seattle DUI arrest or a DUI arrest anywhere in Washington State will result in the court ordering the accused to obtain an alcohol evaluation. The purpose of the evaluation is to determine whether an alcohol problem exists so that the court can order the appropriate level of treatment. Through this process a DUI conviction can lead to the imposition of anything from an eight-hour alcohol“informational class” up to two-years of alcohol treatment.  So what must be considered by the counselor in conducting the DUI alcohol evaluation? The Washington Administrative Code sets forth the basic requirements below.

WAC 388-805-310 Agency filings affecting this section

What are the requirements for chemical dependency assessments?
  A chemical dependency professional (CDP), or a CDP trainee under supervision of a CDP, must conduct and document an assessment of each patient’s involvement with alcohol and other drugs. The CDP’s assessment must include:

     (1) A face-to-face diagnostic interview with each patient to obtain, review, evaluate, and document the following:

     (a) A history of the patient’s involvement with alcohol and other drugs, including:

     (i) The type of substances used;

     (ii) The route of administration; and

     (iii) Amount, frequency, and duration of use.

     (b) History of alcohol or other drug treatment or education;

     (c) The patient’s self-assessment of use of alcohol and other drugs;

     (d) A relapse history;

     (e) A legal history; and

     (f) In addition, for persons who have been charged with a violation under RCW 46.61.502 or 46.61.504 RCW, ensure the assessment includes an evaluation in the written summary of the patient’s:

     (i) Blood or breath alcohol level and other drug levels or documentation of the patient’s refusal at the time of the arrest, if available;

     (ii) Self reported driving record and the abstract of the patient’s legal driving record; and

     (iii) If the initial finding is other than substance dependence, the assessment must also include:

     (A) The police report or documentation of efforts to include this information;

     (B) A court originated criminal case history or documentation of efforts to include this information; and

     (C) The results of a urinalysis or drug testing obtained at the time of the assessment or documentation of efforts to include this information.

     (2) If the patient is in need of treatment, a CDP or CDP trainee under supervision of a CDP must evaluate the assessment using PPC dimensions for the patient placement decision.

     (3) If an assessment is conducted on a youth, and the patient is in need of treatment, the CDP, or CDP trainee under supervision of a CDP, must also obtain the following information:

     (a) Parental and sibling use of alcohol and other drugs;

     (b) History of school assessments for learning disabilities or other problems, which may affect ability to understand written materials;

     (c) Past and present parent/guardian custodial status, including running away and out-of-home placements;

     (d) History of emotional or psychological problems;

     (e) History of child or adolescent developmental problems; and

     (f) Ability of parents/guardians to participate in treatment.

     (4) Documentation of the information collected, including:

     (a) A diagnostic assessment statement including sufficient data to determine a patient diagnosis supported by criteria of substance abuse or substance dependence;

     (b) A written summary of the data gathered in subsections (1), (2), and (3) of this section that supports the treatment recommendation;

     (c) A statement regarding provision of an HIV/AIDS brief risk intervention, and referrals made; and

     (d) Evidence the patient:

     (i) Was notified of the assessment results; and

     (ii) Documentation of treatment options provided, and the patient’s choice; or

     (iii) If the patient was not notified of the results and advised of referral options, the reason must be documented.

     (5) Completion and submission of all reports required by the courts, department of corrections, department of licensing, and department of social and health services in a timely manner.

     (6) Referral of an adult or minor who requires assessment for involuntary chemical dependency treatment to the county-designated chemical dependency specialist.

This is but one example of the maze of complexities that await someone who has been arrested for a Washington State or Seattle DUI. Our firm, Fox Bowman Duarte, provides experienced representation regarding DUI charges and can be reached at (425) 451-1995.