Hot Tub Your Way to a DUI Conviction?

Washington State DUI laws are among the strictest in the nation. Like most states, the legal limit is .08% but the reading is produced by testing breath alcohol, not blood alcohol. Breath alcohol does not impair a driver; it is only alcohol in the blood that impairs a driver. Thus, a blood test would be the most direct and accurate way to measure the alcohol in a DUI suspect’s system. For a number of reasons, our laws provide that the test of a DUI suspect’s alcohol level will be done by taking a sample of breath only, unless certain circumstances (such as inability to blow or vehicular assault arrest) apply. Thus, the vast majority of DUI cases in Washington State are premised upon a breath test reading of .08 or higher.

When one drinks, the alcohol is absorbed by the body and eventually gets into the bloodstream. That same alcohol gets into the breath of a person through the interaction of the lungs and the bloodstream. It is a well known fact,  however that body temperature affects how much alcohol is passed from the blood to the breath. For instance, if a DUI suspect drank enough beer to produce a  blood alcohol reading of .07 (under the legal limit) you would think that the breath alcohol reading would be .07 as well. If the subject had a fever, however, the breath alcohol reading would be higher, perhaps over the .08 legal limit. This is not a theory but it is a scientific fact.

A study by G.R. Fox and J. S. Hayward published in 1989 in the Journal of Forsensic Sciences investigated whether breath testing inaccuracy would result if a subject’s body temperature was raised by spending some quality time in a hot tub. The study concluded that an elevated body temperature after hot tubbing did result in breath test readings that were significantly higher than blood tests taken at the same time.  The study recommended that breath testing machines be equipped with a device to monitor the temperature of the breath of a DUI suspect when blowing into an evidential breath testing machine such as the Datamaster.

Has anyone hot tubbed their way into a DUI arrest and convcition in Washington State who would have been innocent had they not elevated their body temperature? We will never know because the breath test machines used in Washington State for DUI convictions do not measure breath temperature and DUI officers are not required to take the subject’s temperature before administering  a breath test.

Our firm is committed to providing effective representation for DUI charges arising in Washington state from Seattle to Bellingham and locations elsewhere in the state. We welcome your call.  (425) 451-1995

Drug DUI cop’s opinion not automatically admissible

Officers who have special training to detect whether a DUI driver is impaired by drugs are known as “DRE” or “Drug Recognition Experts.” Washington State has a growing number of officers who have received this training and DUI officers in Seattle and King County are emphasizing the detection and arrest of drivers who are suspected of being DUI because of drugs. Our courts have been clear that the testimony of a DRE officer at trial is admissible only after it is proved that the officer has complied with all of the required “twelve steps” of the DRE protocol. Courts strictly construe this requirement because in any DUI trial, juries tend to give more weight to the testimony of experts. Washington courts holding DUI trials sometimes must look outside the jurisdiction when a question of law is not clearly settled in our state. On the question “Can a police officer with dui drug DRE training testify as an expert despite never having personally examined the accused?” the Kentucky Court of Appeals has recently provided an answer. In that case the prosecution was allowed to present the testimony of a Drug Recognition Expert DUI officer that the accused could have been under the influence of certain drugs, but this opinion was based only upon the officer’s review of medical records and not any personal examination. The court noted that whenever a DRE officer’s opinion was previously allowed by a DUI trial court, the DRE expert had personally examined the accused and had complied with each of the required twelve steps of the DRE protocol. The court stated that “the protocol itself requires an officer’s personal observation, physical testing and examination of the subject.” Therefore, it was error to admit the expert opinion of the drug recognition expert without these requirements having first been satisfied. The Kentucky case, Burton v. Commonwealth, is found in the law books at 300 S.W.3d 126. The decision was published in February 2010.

This DUI case is an example of the complexity of defending a citizen accused of DUI. The defense attorney must be familiar with law and science and must remain current in the field by knowing the rulings of local DUI courts, from Seattle to Bellingham, and also being aware of the decisions of the sister states regarding DUI issues. If you have questions about a DUI charge occurring in Seattle, Bellevue, Bellingham, or anywhere in Washington State, feel free to contact our firm.

Finger Alcohol DUI Test to Replace Breath Testing? recently reported that a company is developing technology that detects a person’s alcohol level by measuring having the subject place a finger on a device known as the TruTouch 2000.  The device was announced as being aimed at industry and at law enforcement such as Washington state DUI squads for use in DUI trials. There, accurate measurement of breath or blood alcohol is a critical piece of evidence in a DUI prosecution. One never knows where technology will lead in the future, but it is unlikely that finger alcohol tests will be admissible evidence in any Washington state DUI prosecution soon. First, Washington State DUI law at this time only relies a breath test and under limited circumstances, a blood test. There is no “finger test” for alcohol permitted in our DUI laws. Second, breath and blood alcohol testing has been the subject of scientific study for years, and still today there is controversy regarding the accuracy of test results. An alcohol reading based upon measurement of a finger would certainly be challenged in a criminal prosecution for lack of general acceptance in the scientific community, and such evidence would justifiably be subject to intense scrutiny by a judge in a DUI criminal prosecution. Such scrutiny is warranted because whereas the alcohol readings from a finger might be acceptable evidence in the context of industrial monitoring for safety, evidence must be proven to be scientifically valid and worthy of admission into evidence in a criminal prosecution where a citizen’s liberty is at stake. The article may be found here.

Our firm has years of experience challenging breath and blood alcohol evidence in DUI trials in King County and elsewhere in Washington state.

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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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Why don’t police videotape DUI arrests?

Whenever you see a DUI arrest documented on one of the police television police shows, there is always a videotape of the driving, the field sobriety tests, and other parts of the processing.  Sometimes, the video also includes the actual breath test.  People expect that DUI arrests will be recorded.

Most people are shocked, however,  to learn that the majority of DUI arrests in Washington State are not videotaped.  A few police agencies, such as the Seattle police DUI squad, routinely videotape, but  videotape is the exception and not the rule.  Some jurisdictions, such as the Bellevue police department, used  videotape for a period of time and then discontinued it.  During the time that the Bellevue police department did videotape DUI arrests, some of those videotapes actually supported defense motions to suppress for lack of probable cause to detain or arrest.  Other videotapes clearly supported the prosecution’s case.  All of the videotapes were independent evidence regarding what happened out on the street.  Therefore, the videotape acted as an independent, unbiased, observer.  Without videotape, in many cases what happened out on the street becomes a contest of “he said/she said,”with the citizen at a distinct disadvantage.

In some cases, it is possible to obtain videotape of part of the DUI processing.  For instance, in several local jail facilities, (Issaquah, Kirkland, and others) there are security – surveillance cameras installed where the breath test machine is located.  Some of these jurisdictions also record audio, others are simply “silent movies.” A good DUI defense attorney will know when and how to request videotape evidence that may be useful in the defense of someone accused of DUI.

In some states, legislation has been proposed to require videotaping of all DUI arrests.  There has been no such move here in Washington State.  The city of San Jose, California, it is conducting an interesting experiment with head-mounted cameras to permit all contact with civilians to be monitored.  Most citizens would likely welcome the existence of such cameras as an independent record of police contact.

Snohomish County DUI Emphasis Patrols “Night of a Thousand Stars”

December 11, 2009 was the evening of the annual “Night of a Thousand Stars” kickoff in Snohomish County. The name derives from the badges worn by the reported nearly 1,000 DUI officers who patrolled throughout Washington state on this date, looking for drunk drivers. The Night of a Thousand Stars is part of a continued annual cooperative effort by the Washington State Patrol and other police agencies to increase DUI arrests and to decrease the incidence of DUI by increasing public awareness of police presence on the roads.

Certain legal issues can arise from such programs particularly where police officers make arrests outside of their jurisdiction, or where there is insufficeint probable cause for the detention or arrest of the citizen who is driving through an area saturated by such emphasis patrols.

DUI accidents involving police bound to lead to increased DUI efforts

Every holiday season, Washington State police agencies step up DUI patrols as part of an increased DUI awareness and enforcement program. In most cases, a DUI arrest happens after an officer observes some driving error and pulls the vehicle over.  Two recently reported cases are unique in that the police vehicles were struck by vehicles and the accident investigation resulted in DUI arrests for the driver.  In both cases, police officers were sent to the hospital as a result of the collisions.  It is reported that both the officers involved in the collisions will recover. You can read about the collisions here. These incidents received a lot of publicity and there is no doubt that the police determination to detect and apprehend DUI drivers has been increased by these incidents.

Can I take a blood test instead of a breath test?

When a person is arrested for a misdemeanor DUI and taken to the police station the police will usually ask: “Will you take the breath test?” The answer to this question can greatly influence the complications that will arise from the DUI arrest, including length of license suspension and also the mandatory minimum DUI criminal penalties.  Some people don’t answer with a “yes’ or “no” but rather with the statement “I would like a blood test.” Here is one of the confusing points about Washington State DUI law and a major difference between how our state processes DUI arrests as compared to the procedures used by other states. In Washington state, you don’t have a choice between breath, blood or urine, as you do in other states. You can either take the breath test or refuse to take it, but saying “I’d rather take a blood test”  is legally the equivalent of saying “I’m refusing the breath test.” If you say that, you will be deemed to have refused the breath test, thus incurring a license revocation for at least a year and increased penalties as compared to someone who took the breath test. However, you do have the right to an “additional” test administered on your own, separate from the duty to give breath for police evidential purposes. This additional test is almost always a blood test drawn at a local hospital and it serves the purpose of providing independent evidence to challenge the police breath test. This is an important due process right and the arresting officer cannot take steps to thwart your effort to obtain the independent blood test.

Therefore, the short answer is that you can’t “choose” a blood test in place of the breath test the police are asking you to take, but you have a right to get an independent blood test later to refute the breath test. However, as with all things in the law, there are exceptions and caveats. For instance, sometimes the officer has a right to request a blood test, not breath, and you must give a “yes” or “no” to the police blood test. Under this scenario, you still have a right to an independent blood test.

Further, believe it or not, if you refuse the breath test by stating that you want a blood test, this will count as a “refusal” despite the fact that the officer then has the right to secure a warrant to force you to give blood, and despite the fact that you were at all times willing to give blood.

These rights and more are spelled out in the Implied Consent Law, RCW 46.20.308.It is not exactly a model of clarity and lawyers have been litigating the interpretations of this law for years. After you read this law, it is easy to understand why it is a good idea to exercise the right to speak with a lawyer before making the decision to take a breath test. Our firm, Fox Bowman Duarte, has a lawyer on duty 24/7 to help when called.

How much to drink is “too much?”

This holiday season, the DUI emphasis patrols will be out in King County and throughout Washington State, patrolling in an increased effort to make DUI arrests. Undoubtedly, DUI arrests will occur. In some of those cases, the driver will be arrested and charged with DUI despite making a good faith effort to drink responsibly. That driver begins the night with the question: “How much is too much to drink?” and finds that the legal answer is not easy to determine. The simple answer is that “too much” is the amount that causes a breath test reading of .08 or more within two hours of driving. This is the clear cut standard set by law under RCW 46.61.502. But how is a driver to determine whether he or she is .08 or higher before driving? The fact is that there is no practical way to make this determination with precision. Although you might recall hearing a “One Drink Per Hour” rule, and the liquor control board publishes charts that are helpful, there are so many variables (biological, instrumental, etc) involved that the rule or chart is at best only an estimation.  Even if the chart was 100% accurate in a given case, simply having a reading under .08 is no guarantee that that a DUI arrest and prosecution cannot occur because the officer can arrest and charge in such a case if he is of the opinion that the suspect’s ability to drive was impaired in any appreciable degree.

Another difficulty in determining whether it is “safe to drive” is that there is tremendous variability regarding what constitutes a “drink” depending upon who mixed the drink and further, there is variability in the amount of alcohol in certain similar-sounding drinks. For example, a glass of beer might have 5.6% alcohol (Anchor Porter) or 2.5% alcohol (Pabst Extra Light) depending upon the brand/type. In the example above, two glasses of Anchor Porter would have approximately the same alcohol content as four glasses of Pabst Extra Light, but there are not many people who make this type of calculation when they are out on the town.  It is possible to reasonably estimate the alcohol level in one’s blood using a time-tested formula known as Widmark’s formula. This formula is used in DUI trials to calculate a breath alcohol level based upon percentage of alcohol in the drink, number of drinks, time of consumption, sex, weight and other factors. Although this formula is accepted evidence in DUI trials, as a practical matter it is of little use to the driver who wonders whether he/she is safe to be on the road.

The best advice, as always, is to have designated driver provide transportation. That is the only sure way to avoid problems given the severe penalties in Washington State’s DUI laws.  Alternatively, there are portable alcohol breath testing devices that can give a ballpark estimate as to an individual’s breath alcohol level. The caveat that bears repeating, however, is that it remains a violation of Washington State’s DUI law to drive when one’s ability to drive is impaired in any appreciable degree even if the breath test reading is under the legal limit.

Holiday DUI Patrols are coming

Although there has not yet been a formal announcement, expect to see DUI holiday patrols this year from Thanksgiving through New Year’s.  This time of year, state troopers and other police agencies work in unison to increase their presence for DUI emphasis patrols.  In the past we have seen, for instance, a coordinated DUI enforcement effort from nine police agencies in King County’s eastside– Bellevue, Kirkland, Redmond, Medina, Lake Forest Park, Issaquah, Bothell, Mercer Island and the city of Snoqualmie. When the DUI task force is patrolling, more people get arrested for DUI.

These officers are looking for any driving errors or other probable cause that gives them arguable legal justification to stop a vehicle. If they smell alcohol from the driver, the traffic stop changes into a full-blown DUI investigation and perhaps an arrest. Their goal is a laudable one – removing the impaired driver from the road.  Legal issues are raised by this approach. For instance, if a Bellevue police officer stops a vehicle in Kirkland, it must be shown in court that a proper interjurisdictional agreement authorized the Bellevue officer to patrol in Kirkland.

Obviously, the best way to avoid the legal and professional problems resulting from a DUI arrest is not drive at all after having had anything to drink.  That’s easy advice to give but the law does allow a citizen to lawfully drink and drive so long as the ability to drive is not impaired and the driver is not over the legal limit.  Still, a number of law abiding citizens who make legitimate efforts to consume alcohol responsibly will find themselves snared in this year’s DUI dragnet.  DUI charges are routinely filed even where breath test readings are well below the legal limit if the officer believes that the driver’s ability to drive is impaired by alcohol to any appreciable degree.   In this sense, it is not wise to rely upon the “BAC Charts” issued by the state liquor control which can be found in liquor stores, because a breath test reading under the legal limit is no guarantee that a driver won’t be arrested  and prosecuted for DUI.

Our DUI law, RCW 46.61.502, criminalizes two things: (1) driving with a prohibited level of alcohol in the blood, and (2) driving while impaired by alcohol.  The relevant text of the law is set forth below.

RCW 46.61.502

(1) 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