Do I have to go to Jail for a DUI?

The possibility of serving time in jail is one of the most frightening things about being arrested for DUI. Many Washington State Patrol troopers routinely book into jail every person they arrest, thus many people already have had a view of what jail can be like. It is an unpleasant experience all around.

For a first conviction for  DUI, RCW 46.61.5055 requires the judge to impose a day in jail (a full 24 hours). Therefore, if an individual was booked into jail and served 12 hours in jail, the law does not permit the judge to grant credit for time served and the convicted individual will be still required to serve the full 24 hours in jail at a minimum. However, there are several alternatives to jail that, depending upon circumstances, may apply. The first is that the law permits, in the case of a first DUI conviction, service of electronic home detention instead of jail. However, it takes fifteen days of electronic home detention to replace one day in jail. That’s fifteen days of restricted liberty to avoid one day of restricted liberty. On the plus side, an individual on electronic home detention is allowed to go to work, but generally, otherwise, the individual must remain at home.  The second alternative that can avoid jail is the exception stated in the law as follows:  “Twenty-four consecutive hours of the imprisonment may not be suspended or deferred unless the court finds that the imposition of this mandatory minimum sentence would impose a substantial risk to the offender’s physical or mental well-being.” Our firm has successfully argued for this exception and with proper preparation and documentation, courts are willing to suspend the imposition of jail. However, most judges will replace the jail requirement with electronic home monitoring, as discussed above, so this alternative is more useful where an individual is facing substantial jail time due to prior DUI offenses. It is worth emphasizing that judges will only grant this exception with presented with appropriate documentation, usually in the form of medical or psychological reports bolstered, where necessary, with supporting testimony. A third legal alternative that will avoid the imposition of jail is the deferred prosecution alternative authorized under RCW 10.05. This alternative applies in the case of an individual who is alcoholic, drug dependant, or suffering from mental health issues. In essence, if the individual commits to treatment and waives trial rights, the judge may “defer” prosecution for five years. During this time the treatment program is completed and the individual must strictly comply with court and DOL imposed conditions. Upon successful completion, the case is dismissed. There is much more to a deferred prosecution than is covered here, but it does avoid jail time. However, a deferred prosecution should not be used simply as a way out of jail, but as needed treatment for a problem. If an individual does not succeed in a deferred prosecution, a DUI conviction will follow and with it, jail.

There is another alternative to jail time – successfully litigating a DUI case and either winning at trial or securing a reduction of the charge that does have a mandatory jail penalty. It is important to consider all the alternative outcomes to the case early on when deciding how to proceed next when one is arrested for DUI.

Exactly What Is An Ignition Interlock?

IMG00105-20091012-0945Many people shudder at thought of having one of these devices and are disappointed to learn that this device may be the only way that can drive their car for period of time in the future. The reality is, with Washington State DUI laws become harsher ever year and with legislative lobbying by MADD and other interest groups, the ignition interlock will soon be a reality for many citizens who are accused of drinking and driving. It is an unpleasant surprise for many to learn that this device can be required even without having ever gone to court! This is because every DUI arrest is followed by an independent licensing suspension from DOL. This action by DOL must occur within a finite period of time after the arrest regardless of whether the arrestee has even been to court on a first appearance.

Where a person has never been arrested for a DUI within the previous 7 years, and the person provides a breath sample of .08 or above, the DOL will seek to suspend the person’s license for 90 days. On the other hand, if the arrested person refuses to provide a breath sample, the DOL will seek to revoke the person’s license for 1 year.  Where a driver has previously been arrested for a DUI and that arrest occurred within the past seven years, the driver faces a 2 year loss of license regardless of whether the arrested person provides a sample of their breath.

While most suspended or revoked people are eligible to continue driving during their suspension periods, this is allowed ONLY with an ignition interlock license (IIL) which obviously requires an ignition interlock device (IID) on their vehicles.  Here is what an the device looks like.

This ignition interlock is handheld and requires the driver to provide a breath sample prior to the vehicle being started. Once a sample is provided, analyzed, and clear, it will permit the vehicle to start. During the drive time the device will randomly and frequently require the driver to provide samples. As a result, many drivers will be required to place the device in their lap as they drive for easy access when prompted for a sample.

While installation and maintenance are an issue, as well as the fact that the device has many limitations, complications, and false positives, those issues will be left for another discussion. In the meantime, what citizens need to know is that although the device can be hidden under the seat, in a console, or even a glove box when the vehicle is parked, there is simply no way to use the device while driving discretely. It will always be seen by the passengers. As a result, the ignition interlock device is the “scarlet letter” for every driver who has one.

Experienced and aggressive legal counsel is critical immediately after a DUI arrest so that the accused will have the best chance possible of avoiding the DOL suspension. If you or someone you know has been arrested for DUI they will almost certainly face a DOL action and only have 20 days to respond. Regardless of where you live, the Seattle DUI Attorneys of Fox Bowman and Duarte can help.

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.

A DUI Exception to the Constitution?

Today, according to an article in the Washington Post,  Justice Roberts of the United States Supreme Court “spoke out” about a DUI case. He was joined by Justice Scalia in  dissenting from the decision of the other justices of the Court to deny review of a ruling from the Virginia Supreme Court. The Virginia court found a police detention of a suspected DUI driver was unconstitutional where Virginia police stopped a car for DUI based upon an anonymous, uncorroborated tip to a “drunk busters hotline.”  The Virginia Supreme Court ruling is in line with established law in Washington state.

 In Washington State this very issue was considered twenty seven years ago in the case of Campbell v. DOL. In that case an anonymous tip was given to police that a vehicle was driven by a drunk driver. Nothing was known about the reliability of the person giving the tip, nor was anything known about the facts upon which the tip was based. An officer followed the “offending” car and saw nothing unusual, but he pulled it over anyway.  Applying well-established principles of law, and relying upon precedent from the United States Supreme Court, the Court of Appeals reasoned as follows:

  •  “The case before us involves the unusual situation of a police officer on traffic detail stopping an automobile driver for suspicion of drunken driving when the officer has absolutely nothing to suggest that the driver was under the influence of intoxicating liquor except a conclusory tip from an unidentified passing motorist that the driver was drunk.”
  •  “A police officer may make an investigatory stop for suspected drunk driving, but before doing so he must first possess a well-founded suspicion based on articulable facts that such a violation has been committed or is presently being committed.”
  •  “The passing motorist in this case provided no factual information from which the officer could assess, as he must, the probable accuracy of the motorist’s conclusion.”
  •  “The State argues, however, that the initial detention was nonetheless reasonable due to the threat of harm to third parties and the resultant need for an immediate police response. We agree that the seriousness of the suspected criminal conduct is a relevant consideration in the reasonableness calculus, e.g., there must still exist some measure of objective fact from which the conclusion of criminal conduct can reasonably be derived. To hold otherwise would be to expose every citizen’s right of privacy against arbitrary invasion by others to the unfettered exercise of an officer’s discretion. This is what the Fourth Amendment was enacted to prevent. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, …”

 It is not difficult for an officer to obtain the corroboration needed to stop a suspected DUI driver based upon a citizen offering only an anonymous tip. The officer might simply ask: “Who are you and how do you know?” and then the tip would be neither anonymous nor uncorroborated. Barring that, the officer might just rely upon his training. As the Campbell court pointed out:

 “It is perhaps appropriate to observe that driving while under the influence is not a readily concealed offense. For example, the Washington State Patrol Academy’s current training manual lists some 44 different “detection clues”, based on the manner in which a vehicle is operated, which indicate that the operator may be under the influence.”

 Courts have, for years, employed the Constitutional principles underlying Campbell to determine whether a detention is legal in the context crimes such as murder, robbery, and the like. However, the temptation to create a DUI exception to the Constitution is strong, and maybe Justice Roberts is not strong enough.

Justice Roberts stated: “I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.”

 I do,  of course, have all the appropriate respect for Justice Roberts. However, it is elementary that the protections established by the founders of this nation (and preserved at the cost of the lives of many courageous patriots) DO NOT change according to the crime that is charged. Every citizen of this country, even a citizen charged with DUI, is entitled to the protections afforded by our Constitution.

Do Zero Tolerance DUI Laws for Minors Work?

Nobody wants minors to drink and drive and Washington’s law regarding this is known as a “zero tolerance” law. Washington’s law prohibits a minor from driving after consuming alcohol. The law is commonly known as a “Minor DUI” but it a violation does not require proof that the minor drove under the influence of alcohol.  All that is required is that the minor drive after drinking, as evidenced with a breath test reading of .02 or higher. Here is the text the pertinent part of Washington’s “zero tolerance” law:

RCW 46.61.503 Driver under twenty-one consuming alcohol — Penalties.  

(1) Notwithstanding any other provision of this title, a person is guilty of driving or being in physical control of a motor vehicle after consuming alcohol if the person operates or is in physical control of a motor vehicle within this state and the person:

(a) Is under the age of twenty-one;

(b) Has, within two hours after operating or being in physical control of the motor vehicle, an alcohol concentration of at least 0.02 but less than the concentration specified in RCW 46.61.502, as shown by analysis of the person’s breath or blood made under RCW 46.61.506.

Everyone would agree with the intent of this law and it is hoped that the existence of this law would deter teen drinking and driving.  However, Science Daly reports that a study by a Sam Houston State University economist found that these laws have no effect. The economist analyzed data from 30,000 fatalities in nighttime accidents involving drivers under age 21 and concluded that “zero tolerance” laws did not modify the behavior of drivers under age 21.  This conclusion was based upon his statistical analysis of blood alcohol concentrations involved in drivers two years before zero-tolerance laws were enacted in a particular state, and again two years after enactment.

This is not to say, however, that these laws should be repealed.  These laws should be viewed as part of an overall program intended to reduce teen tragedies related to drinking and driving. Concurrent alcohol education and changing the attitudes of drivers under 21 about drinking and driving, in conjunction with “zero tolerance” laws is bound to have a positive impact in the future. The mere existence of a “zero tolerance’ law by itself is simply not enough.

To learn more about the implications of a Washington state criminal traffic conviction contact the experienced Seattle Minor DUI Lawyers at Fox Bowman Duarte for a FREE legal consultation to discuss your Minor DUI case.

Oregon Appeals Court Rules Accused Drunken Driver ‘Coerced’ Into Blood Test

Recently, an Oregon Appeals Court found that a suspected intoxicated driver was ‘coerced’ into providing a blood test.  Police and prosecutors say a court of appeals ruling will make it more difficult to investigate and prosecute suspected drunken drivers. Although a man accused of drunken driving gave his consent to have his blood drawn for testing, the Oregon Court of Appeals ruled this week that the consent was coerced and should be suppressed. In a 6-4 decision, the appellate court found that the man’s consent was not voluntary because he agreed after a police officer read him the penalties of not complying, as required by state law. The court also ruled that the officer, who had probable cause to believe the driver was intoxicated, could have obtained a search warrant by phone without sacrificing evidence and should have done so.Washington drivers have likewise given their consent and this recent ruling may serve as a model for future challenges here in Washington. Currently, a DUI arrestee is most often requested to give a breath sample and the person is likewise informed of the consequences of refusing a sample, or providing a sample. These warnings are called Implied Consent Warnings and are found in RCW 46.20.308 and state the following:

(a) If the driver refuses to take the test, the driver’s license, permit, or privilege to drive will be revoked or denied for at least one year; and (b) If the driver refuses to take the test, the driver’s refusal to take the test may be used in a criminal trial; and (c) If the driver submits to the test and the test is administered, the driver’s license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if the driver is age twenty-one or over and the test indicates the alcohol concentration of the driver’s breath or blood is 0.08 or more, or if the driver is under age twenty-one and the test indicates the alcohol concentration of the driver’s breath or blood is 0.02 or more, or if the driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and (d) If the driver’s license, permit, or privilege to drive is suspended, revoked, or denied the driver may be eligible to immediately apply for an ignition interlock driver’s license.

If a driver refuses to provide a breath sample, something that they have a right to do and are specifically told of this right, an officer may apply for a search warrant for the purpose of drawing blood from the arrestee against that person’s will. You will notice that the above warnings do not inform the person of this possibility. Oregon has a similar provision which the Appeals Court appears to have alluded to and heartily endorsed.

On this point, Oregon is not alone as the Washington Supreme Court recently endorsed this search warrant procedure in the case of City of Seattle v. St. John. Under normal circumstances a blood sample is not usually requested and drawn because breath testing is done. However, in certain circumstances blood is sought first. These circumstances are where the suspected driver is; 1) receiving aid and a breath test machine is not available; 2) the driver has injured another person; 3) the driver killed another person; or 4) the driver is unconscious or otherwise incapable of providing a breath sample and the officer has probable cause to believe that person was DUI.

An additional circumstance where police can request a blood sample is if a person has undergone an exam with a Drug Recognition Evaluation (DRE) and the officer suspects the person to be under the influence of a drug.

Under current Washington law, regardless whether a person arrested for DUI is requested ot provide breath or blood, their right to refuse either test can be ignored and they can have blood taken from them with force under the authority of a search warrant. While this search warrant has been recently upheld, the ruling in the Oregon Court of Appeals may provide new life for a future challenges in light of the fact that the Washington State Constitution gives more protection to citizens from these types of searches. However, it will take a lawyer with unique experise in Washington DUI law to recognize the right case and prepare it for such a important challenge. At Fox Bowman Duarte, both our Bellevue and our Bellingham locations are staffed with talented lawyers that possess this unique skill set.



Reckless Endangerment can be a DUI Plea Bargain

A DUI conviction carries a mandatory sentence include mandatory jail, fines, alcohol evaluation/treatment and more, that the judge is required by law to impose, with rare exceptions. In addition, the Department of Licensing imposes mandatory license suspension and ignition interlock requirements upon receiving notice that a driver has been convicted of DUI. A person charged with DUI benefits from a reduction of a DUI charge to a “lesser charge” since the reduction usually avoids most of the mandatory penalties that come with a DUI conviction. Today’s prosecutors are generally reluctant to offer a reduction of a DUI charge unless the defense lawyer can show the prosecutor that there are significant factual or legal issues that imperil the prosecutor’s ability to prove the case. As a result it may agreed that the DUI charge will be amended to a different charge such as Reckless Endangerment. This compromise benefits both the prosecution and the defense. Although no mandatory jail is required upon a conviction for Reckless Endangerment, the judge always has discretion to impose any sentence that the judge deems appropriate – up to a $5,000 fine and one year in jail. Typically the judge will “suspend” some or all of the jail time upon required conditions that generally track conditions of probation imposed upon a DUI conviction – lawful behavior, alcohol evaluation and follow up, abstinence from alcohol (where recommended by the evaluation), probation, etc. Violation of any of these conditions of probation can result in the judge imposing the balance of the jail or fine. In addition, a reduction to Reckless Endangerment, will be treated as a “prior offense” that will increase the mandatory minimum sentence to be imposed in the event of subsequent DUI arrest and conviction within seven years of the arrest in the current case. This is because the legislature has recognized the practice, where appropriate, of amending a DUI charge to a different charge with different sentencing options. See RCW 46.61.5055(13)(v). The accused also benefits from a reduction to Reckless Endangerment. There is no mandatory jail time, license suspension or “high risk” insurance required by virtue of a conviction for Reckless Endangerment and it is not a driving offense (however, remember that this will not affect any “administrative suspension” of the license already imposed by the DOL.)

Although the prevailing public opinion likely disfavors any reduction of charges when a citizen is charged with DUI, a reduction to Reckless Endangerment is recognition by the prosecution and the defense that each side has a risk of losing if the matter proceeds through full litigation and thus, each side is willing to accept a reasonable compromise.

Cancellation of Ignition Interlock License?

The new ignition interlock license is taking some of the sting of the lengthy license suspensions that the Department of Licensing issues upon a DUI arrest or conviction.  The ignition interlock license permits an individual to drive anywhere, anytime, so long as the vehicle being driven has an ignition interlock (with certain exceptions) and proof of financial responsibility (“SR-22” insurance) on file with the Department of Licensing. However, an individual who is driving on an ignition interlock license needs to be very careful, because the DOL has the power to revoke the ignition interlock license.  The ignition interlock statute, RCW 46.20.385, provides as follows:

(5) The director shall cancel an ignition interlock driver’s license upon receipt of notice that the holder thereof has been convicted of operating a motor vehicle in violation of its restrictions, or of a separate offense that under this chapter would warrant suspension or revocation of a regular driver’s license. The cancellation is effective as of the date of the conviction, and continues with the same force and effect as any suspension or revocation under this title.

Therefore, if a driver has a two-year license suspension and has successfully applied for and received an ignition interlock license, that individual may drive pursuant to the terms of the license during the entire two-year suspension.  However, if the driver is subsequently convicted of an offense such as reckless driving, hit-and-run, or another “license-suspendable” offense, the ignition interlock license is canceled and the individual may not drive for any purpose for the remaining duration of the license suspension.
In essence, this is a “no tolerance” provision intended to ensure that individuals who are driving during a suspension pursuant to ignition interlock licenses will be law-abiding drivers.  However, this section of the ignition interlock law must be kept in mind whenever a defense lawyer undertakes to represent an individual who is currently driving on an ignition interlock license and who is charged with a subsequent offense that carries license suspension as one of the penalties.

Washington State DUI Grounds Pilot?

When it comes to pilots and DUI law, there are a myriad of federal regulations that apply but in some respects, Washington State DUI law pertaining to pilots is tougher than Federal regulations. Although Washington State cannot revoke a pilot’s certificate upon a conviction for “flying DUI, “  a pilot who is convicted of operating an aircraft recklessly or while under the influence of alcohol or drugs can be prohibited, at the discretion of a judge, from operating an aircraft anywhere within Washington State for up to one year. This means the pilot whose aircraft is hangared in Washington State is effectively grounded for one year as a sanction for flying under the influence of alcohol (DUI in the sky) or operating an aircraft recklessly. Note that the law may be violated on the ground as well as in the air. Reckless operation on the ground during taxi, or “DUI while taxiing” can result in the one-year grounding of a pilot in Washington State. (This is similar to the penalty imposed in the case of a Washington State DUI committed in a vehicle which results in driver’s license suspension.)

There are a myriad of federal and state complications facing a pilot, whether private or commercial, who is arrested for a Washington State DUI whether in a vehicle or as a consequence of operating an aircraft. For a pilot, just as with any citizen, it is important to seek effective legal representation when charged with DUI or any alcohol related offense involving an aircraft.

DUI Police Reports – Real or Canned?

Every Washington State DUI arrest should be well documented in a DUI police report. DUI police officers receive special training in report writing so that they can testify fully when a DUI case is litigated in court. In past years, we have seen a few strange things regarding police report writing. A few officers had “canned” language in the police reports that was identical in every DUI arrest made by that officer. While that practice apparently is in the past, it can’t be denied that the current police report forms emphasize “check box” observations so that an officer won’t have to articulate what actually happened. It’s easier to just check a box. The problem with this approach is that it can become a habit for officers to check the boxes in DUI preprinted police reports, so that a box might be checked even if it doesn’t apply. The failure of most agencies to videotape arrests amplifies this problem. The police report form used by the Washington State Patrol when documenting a DUI arrest is actually posted on the State Patrol website; the Seattle DUI squad has no similar webpage although their officers use a similar form. Both forms have a number of “checkbox observations.” The whole issue of police report writing is coming to a head in Vallejo, California. The news webpage reports that the Vallejo Police Department is outsourcing the typing of police reports. The officer dictates the substance and the file is emailed out of state where it is typed. The article did not report on any safeguards to insure that the DUI police report reflects what actually happened in the DUI arrest. There are arguments on both sides of this practice, but it might be that a police report that is dictated by the DUI police officer soon after an arrest would be more accurate than a bare-bones report with “appropriate” boxes checked.

Our firm examines all evidence in a Washington State DUI with a critical eye. Experience shows that, especially in the case of a police report documented by the DUI officer checking boxes, favorable facts are often found through careful investigation – looking “behind” the report.