DUI Alcohol Evaluation – List of Approved Agencies

If you have been arrested for a Seattle DUI or a DUI elsewhere in Washington State, at some point in the process your DUI lawyer will very likely suggest that you get an alcohol evaluation. This is important to the case because the results of the evaluation can influence the DUI sentence the judge will impose if there is a DUI conviction. Most people don’t know where to get a DUI alcohol evaluation. For court use, the agency must be state-certified. There are numerous DUI alcohol evaluation agencies in the Seattle area and throughout Washington State that will provide an alcohol evaluation. The state publishes a list of all the agencies, by location, online at the DSHS website.

DUI probation violation = 30 days jail?

A Washington state DUI conviction carries with it a maximum of five years probation. Most DUI judges, whether in Seattle or elsewhere in Washington, actually do impose five years of DUI probation. Judges have the option of imposing less probation, but rarely will a judge impose less than two years probation on a DUI conviction. “Conditions of probation” are imposed. For a Seattle or Washington state DUI, these conditions can include, for example,  total abstinence from alcohol and attendance at alcohol treatment. However, Washington state DUI law sets forth certain mandatory conditions of probation that the judge must impose in every case. These conditions are set forth in Washington’s DUI sentencing law, RCW 46.61.5055, which reads in relevant part as follows:

“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.”

Washington state’s DUI sentencing law also sets forth the penalty to be imposed upon a violation of these mandatory conditions of probation:

“(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.

(c) For each incident involving a violation of a mandatory condition of probation imposed under this subsection, the license, permit, or privilege to drive of the person shall be suspended by the court for thirty days or, if such license, permit, or privilege to drive already is suspended, revoked, or denied at the time the finding of probation violation is made, the suspension, revocation, or denial then in effect shall be extended by thirty days. The court shall notify the department of any suspension, revocation, or denial or any extension of a suspension, revocation, or denial imposed under this subsection.”

 Thus, each violation of the mandatory condition of probation results in thirty days of confinement and an additional thirty days of license suspension. Our firm, Fox Bowman Duarte, has successfully argued that the use of the term “confinement” in this part of the statute when the term “imprisonment” is used elsewhere in the DUI sentencing law means that the court has the option of imposing Electronic Home Monitoring rather than jail in the case of a violation of  a mandatory condition of DUI probation. However, for this argument to have the best chance to succeed, it is necessary to take certain steps that will impress the judge that jail is not necessary and that Electronic Home Monitoring is appropriate.

Drunk driving across state lines = Two DUIs

The Washington State Supreme Court issued an opinion on August 20, 2009,  regarding a driver who drove drunk from Washington State into Oregon and was convicted of DUI in both states based upon this single act of driving. (State v. Rivera-Santos, 81445-7.) The driver  was arrested in Oregon after driving south from Washington state over the interstate bridge. He took a DUI breath test with a reading of .17 and was convicted first in an Oregon court of DUI. Later, he was prosecuted and convicted of DUI in Washington State. The driver appealed, asserting that Double Jeopardy prevented him from being prosecuted for DUI in Washington State when he had already been prosecuted for DUI arising out of the same facts in Oregon. The Washington State Supreme Court rejected the appeal and affirmed the conviction, finding that the Oregon DUI conviction did not bar the subsequent Washington State DUI prosecution.

In this case there was one continuous act of DUI driving that occurred in two separate states and that resulted in two DUI convictions. Of interest is that under Washington’s DUI sentencing scheme, the Oregon DUI conviction that was on the record at the time the driver was convicted of DUI in Washington State would have caused the Washington State DUI to be deemed a “second offense,” subjecting the driver to a mandatory minimum of 45 days in jail based upon a .17 breath test reading. The Washington DUI sentencing statute states in part that a a prior DUI conviction includes an out of state conviction that would be the equivalent of a Washington State DUI.

“Hard” license suspension for Seattle DUI?

A “hard” license suspension is a license suspension for which there is no driving of any sort allowed.  By way of background, under the 2009 amendments to Washington state’s DUI laws, a driver whose license is suspended for an alcohol-based DUI arrest or conviction may apply for an ignition interlock license.  This license permits the individual to drive during the period of suspension so long as there is an ignition interlock device installed in the vehicle being driven, and other conditions are met.  However, a strange quirk in the amendments to Washington state’s DUI law that became effective January 1, 2009, exclude from eligibility for an ignition interlock license those persons convicted of DUI where the allegation is that the individual drove under the influence of drugs, not alcohol.  Upon a first conviction for a drug/DUI, a minimum 90 day license suspension is imposed.  “Drug/DUI” cases are not included as candidates for an ignition interlock under RCW 46.20.385 or RCW 46.20.720. The law also excludes such persons from obtaining and “occupational license.” In Seattle DUI cases and elsewhere in Washington state, more and more people are being arrested for DUI where the allegation is that they drove under the influence of drugs, not alcohol.  Typically, an officer called a “drug recognition expert”  (DRE) processes this type of arrest. There are a number of DRE qualified DUI officers on the Seattle Police Department and also in the Washington State Patrol. 

It is hoped that the disparity in the law excluding those arrested for DUI/drugs from eligibility for an ignition interlock or occupational licenses will be addressed during the next legislative session.

Failing a DUI Field Sobriety Test but not drunk

One of the “standardized” field sobriety tests routinely given in a Seattle DUI arrest is the “eye test” otherwise known as the test for Horizontal Gaze Nystagmus. In this test, the DUI arresting officer looks for “bouncing” or “jerking” of the eyes as they follow a stimulus, usually a finger or a pen. If the bouncing begins at a forty-five degree angle or earlier, the police say there is a strong likelihood that the driver is legally drunk. This test is administered throughout Washington State in DUI investigations and relied upon by DUI officers in making arrest decisions, but these officers are not eye doctors and the literature has revealed a staggering number of other causes for nystagmus. What follows is a list of other possible causes of nystagmus: 

(1) problems with the inner ear laby­rinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arterioscle­rosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff’s syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbitu­rates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunc­tion; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use.

However, the list continues to grow of causes of nystagmus that do not include alcohol. One physician believes that mineral deficiency can cause nystagmus.

Nystagmus remains a controversial item of evidence in Washington State DUI cases. A competent DUI attorney practicing in any court the Seattle area or within Washington State should be familiar with the challenges that may exist to the use of Horizontal Gaze Nystagmus in as an attorney defending a DUI charge.

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.

Washington State DUI arrests by the numbers

The Washington State Patrol DUI section has released a report analyzing statistics for DUI arrests occurring in 2008. The statistics were compiled from the database aggregated from data kept on the BAC Verifier DataMaster breath testing machines located throughout Washington State and used for the evidential breath test in a DUI arrest. From this report we learn the answers to the following questions regarding 2008 Washington State DUI arrests:

Question: Which Washington State police agency made the most DUI arrests?

Answer: By far, the most DUI arrests were made by the Washington State Patrol (14, 685). The Seattle Police Department DUI arrests were a distant second at 723 DUI arrests, and the King County Sheriff’s Office was third with 687 DUI arrests. Of course, the State Patrol has the advantage of being a single agency making DUI arrests throughout the entire state.

Question: Statistically speaking, who is arrested more often for DUI in Washington State, males or females?

Answer: No contest. Males are arrested for DUI more often than females. In 2008, 24,048 males were arrested for DUI and 7223 females were arrested.

Question: Statewide, what percentage of people arrested for DUI refuse to take the breath test?

Answer: 83% took the test; 17% refused to take the breath test. Those who refused faced harsher penalties because they refused the test.

Question: Is a person more likely to refuse the test if arrested by one police agency as opposed to another?

Answer: It seems so. For instance, the Spokane police department had the highest reported rate of suspects refusing to take the breath test (29.4%). Statistically speaking, 22% of Seattle DUI arrests handled by the Seattle Police Department refused, whereas WSP’s statewide rate of refusal was 14.6%. These numbers suggest that the Spokane Police Department police officers are twice as likely as the State Patrol to end the DUI breath testing process by indicating the suspect refused the test.

Question: Which age group is arrested for DUI most often?

Answer:  Those in the 20-29 age group (13,432 arrests) dominated the 2008 DUI statistics, followed by those in the 30-30 age group (6572 arrests). Folks in the age group of 70 and over were least represented with 199 DUI arrests.

A Seattle DUI or a DUI anywhere in Washington State is a serious matter and many citizens find themselves in the position of being charged with DUI. Anyone charged with DUI should seek the advice of an experienced DUI defense attorney at the earliest opportunity. Our firm can be reached at (425) 451-1995.

Punched Hole in License Violates Due Process?

Whether it is a Seattle DUI arrest or a DUI arrest anywhere in Washington State, it will include the DUI officer punching a hole in your driver’s license if your breath test is over the legal limit, or if you refuse to take the test. Washington State DUI law does not specify that a hole must be punched in the license. RCW 46.20.308(6)(c) is cryptic and states that the DUI officer shall…“Mark the person’s Washington state driver’s license or permit to drive, if any, in a manner authorized by the department.”

When a driver’s license is punched the privilege to drive is not invalidated but as a practical matter, the license is useless as identification and will not be accepted by car rental companies. In effect, the hole that the DUI officer punches in the license actually deprives the driver of the use of that license, all without due process of law. All citizens are entitled to due process, even those arrested for DUI in Washington State.

The DOL could have authorized any number of methods of marking the license that would not deprive the driver of the use of the license, such as a mark with indelible ink, a sticker, or otherwise. The current practice of punching a hole in the license of a Washington State driver who is under arrest for DUI amounts to a taking of property without due process of law since the hole is punched at the time of arrest, prior to any judicial adjudication of the validity of the DUI arrest or the accuracy of the breath test results.

2017 Update: Consistent with due process and amendments to the DUI laws, police no longer punch a hole on one’s license. They are required, however, to provide you with a form to request a DUI licensing hearing if the DOL intends to suspend your license. Whether you received the form or not, it’s always a good idea to contact a reputable DUI defense attorney as soon as possible after an arrest.

Seattle DUI Arrest – Portable Breath Test Discussed

If you are stopped on suspicion of DUI by a Seattle DUI police officer or a Washington State Patrol DUI Trooper you will probably be asked to submit to field sobriety tests and then you will be asked to submit to a test of your breath on the “portable breath test” or “PBT.” This is a handheld breath test device that many Seattle DUI police officers use to confirm the decision to make a dui arrests. At the time of this writing, there are two DUI PBT devices approved by the State Toxicologist. These are the Alcosensor III and the Alcosensor FST (Intoximeters, St. Louis, MO). The PBT is typically administered on the street at the location of the DUI stop. You don’t lose your driver’s license for refusing to submit to a PBT. Nor can the results of the PBT be admitted into evidence on the issue of guilt or innocence at a DUI trial so long as the DUI defense attorney makes the proper objection. However, the PBT should not be confused with the “official” breath test machine – the BAC DataMaster. The BAC DataMaster is the breath test machine typically located at a police station (although they are also located in the Washington State Patrol’s DUI motorhome called the “MIDU.”

Once a DUI arrest has been made, the officer will read the “Implied Consent Warnings” to the DUI suspect before asking him/her to take the test. There is a penalty for refusing to take the BAC DataMaster – suspension or revocation of the driver’s license. In addition, refusing to take the BAC DataMaster DUI breath test will result in tougher penalties if a conviction results from the DUI arrest. If under investigation for a Seattle DUI, it is important to know the differences between the PBT and the BAC DataMaster.

A person under arrest has the right to talk with an attorney (usually this is done by phone) prior to making the decision to take or refuse the DUI breath test on the BAC DataMaster, and such a consultation is always a good idea. Whereas the example above is from a Seattle DUI arrest, the principles discussed apply to any Washington State DUI arrest.