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.


DUI Breath Test – Two Hour Limit?

Diana Lundin of our office focuses her practice upon representation of our clients at Department of License suspension proceedings and also, where necessary, on the appeal of suspension orders.  A recent case of Diana’s illustrates the challenges facing a driver who seeks save his or her license from suspension at the hands of the Department of licensing.

The case involved a Seattle DUI arrest made by a Seattle DUI squad police officer. The circumstances in the case resulted in the breath test being administered approximately 3 hours after the time of the arrest, and thus, at least three hours after the time of driving. RCW 46.61.502, Washington’s DUI law applicable to any Seattle DUI arrest, defines a DUI as follows:

“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..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…” Further, “Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more..”

Every DUI court in Seattle, Washington, or elsewhere within Washington has generally interpreted the statute the very same way — a breath test reading taken beyond two hours from the time of driving is relevant but only if expert testimony is presented showing what is the breath alcohol level would have been within two hours, based upon the reading taken outside of two hours.  The scientific process for this calculation is “retrograde extrapolation.”  Without this evidence, the reading taken beyond two hours has no relevance to whether a person was over the legal limit within two hours.

A Seattle DUI arrest with a breath test reading of .08 or higher results not only in the charge of DUI in a Seattle court, but the Department of Licensing will also seek to suspend the license based upon the very same reading.  However, whereas a Seattle DUI court will require expert testimony to “link” the reading taken beyond two hours to the time period “within two hours,” the Department of Licensing suspended the license without such proof in a recent case handled by FBD attorney Diana Lundin. Diana appealed the Department of licensing’s ruling to a higher court – the King County Superior Court.  There, a Superior Court judge reviewed the facts regarding this Seattle DUI arrest, agreed with Diana’s arguments, and reversed the suspension of the driver’s license. The Department of Licensing has now appealed this ruling and we await a decision from the Court of Appeals.

Diana’s handling of the license suspension arising out of this Seattle DUI arrest illustrates two things: (1) DUI law is complex, and (2) the only way to win a DUI case is to retain an attorney like Diana Lundin who knows the law and has the tenacity to fight for you at every stage.

If you are charged with a Seattle DUI, or if you have been arrested for a King County DUI or elsewhere, call Fox Bowman Duarte for a free consultation.


Little-Known Penalties for Failing to Surrender License

A driver arrested for DUI in Washington State who takes a breath test with a result of .08 or higher, or who refuses a breath test, is subject to “automatic” suspension/revocation of the license by the Department of Licensing.  There are other reasons that a license might be administratively suspended by the Department of Licensing, but a DUI arrest is probably the most common reason for license suspension.  It is especially important after a DUI arrest to timely request a hearing to contest the license suspension and we have dedicated a section of our firm,  Fox Bowman Duarte, to providing representation at Department of licensing administrative suspension hearings.

If a license suspension or revocation does occur, the Department of Licensing sends to the driver a notice of the suspension or revocation, and the notice it includes a statement that the driver must surrender his or her license to the Department of Licensing.  Drivers who don’t turn the license in to the DOL after suspension are unknowingly risking additional license suspension.  Pursuant to WAC 308-104-075,  an additional license suspension ranging from 60 days to 364 days can be imposed upon a driver who the Department of Licensing has determined to have committed “one of the prohibited practices set forth in RCW 46.20.0921.” Under this statute, it is a misdemeanor for a driver to willfully “fail or refuse to surrender to the Department upon its lawful demand any drivers license or identitcard which has been suspended, revoked or canceled.” 

The way this law is written, a driver who is arrested for DUI, whose license is subsequently suspended, and who fails to surrender his or her license to the Department of licensing upon lawful demand may be prosecuted for a misdemeanor.  Most people have no idea that failing to turn in the license is a crime. However, a misdemeanor conviction is not required for the Department to impose a an additional license suspension for failure to surrender the license because, under WAC 308-104-075, a conviction is not required — the Department of licensing may suspend the license is a “determines” that there has been a violation of RCW 46.20.0921.

In practice, I have never heard of the Department actually imposing an additional suspension upon a driver arrested for DUI in who fails to surrender his or her license after a DUI administrative suspension and lawful notice to surrender by the Department of licensing.  However, the Department has such authority and this is yet another example of the complexity of DUI defense and our licensing laws. Moreover, anyone who has suffered a license suspension would be well advised to surrender the license to the DOL upon lawful demand by the DOL.


When a Pilot gets a DUI

A pilot who is arrested for a Washington State DUI faces not one, but three separate challenges: (1) the Department of Licensing will administratively suspend the license to drive, (2) the court will impose jail, fines, alcohol programs, etc, and (3) the FAA will get involved. Thus, for a pilot, two state agencies (DOl and court) and one Federal agency (the FAA) are all areas of huge concern.  There are several issues pilots need to address. First, if the department of license suspends the driver’s license for either taking the breath test and blowing .08 or higher, or refusing the breath test, then the pilot has a “motor vehicle action” that must be reported to the FAA not later than 60 days after the motor vehicle action. The FAA will take action against the pilot’s license (known to pilots as a “certificate”) or not, depending upon the circumstances and record. If the same pilot is subsequently convicted of DUI, then the court conviction is reportable to the FAA as well. Typically the FAA does not revoke a pilot’s certificate for a first-offense Washington State DUI arrest, if properly reported, but disqualification may follow due to the medical implications of a DUI. All The specific requirements are set forth in the applicable FAR sections (among these is FAR 61.15) and these should be consulted. In addition, a DUI attorney who has familiarity with the FAA requirements should be retained if a pilot is arrested for DUI.
If a DUI arrest winds up as a DUI conviction, Washington DUI courts require the accused to obtain a DUI alcohol evaluation from a state certified alcohol treatment agency and to satisfy whatever treatment requirements are recommended by the evaluation. Doing so will raise another issue for a pilot: every pilot is required to submit to medical examination (the frequency of examination varies according to type of pilot certificate) and part of this examination consists of the pilot filling out a questionnaire that must be signed under penalty of perjury. One of the questions asked is whether the pilot has a history of substance abuse, including alcohol. If there is a history of substance abuse, a “medical disqualification” may follow.
If you are a pilot facing the consequences of a DUI arrest, bear in mind that this blog is only general information and not legal advice. A pilot who wishes to preserve flight privileges should consult a DUI defense attorney who is knowledgeable in this area, but (particularly for commercial pilots) it is wise to retain a separate attorney whose practice is limited to FAA administrative compliance. A pilot facing the consequences of a DUI arrest should not take action based upon anything said in this blog but should instead act only with the advice of counsel. For most pilots with no prior “motor vehicle actions” who are not suffering substance abuse, compliance with FAA requirements will not result in suspension of the flight certificate.


How To Get Into Trouble With Your License

They say that every citizen is presumed to know the law. That is, of course, impossible. Nobody can know all the laws. Everybody knows that a DUI arrest and conviction, for instance, will result in driver’s license suspension. However, there is a laundry list of other actions that will result in a suspension of the license by the Department of licensing for at least 60 days, and sometimes for as much as one year, according to Washington Administrative Code WAC 308-104-075. Most people are unaware, for instance, that upon a license suspension because of a DUI arrest or conviction, if the driver fails to deliver the license to the Department of licensing, an additional suspension may be imposed. That rather unknown penalty is the consequence the combination of the WAC 308-104-075 and section 1(a) of RCW 46.20.091, which states that it is a misdemeanor for any person “willfully to fail or refuse to surrender to the Department upon its lawful demand any driver’s license or identicard which has been suspended, revoked or canceled.” A person who violates this section is subject to criminal punishment and also to additional suspension of the driver’s license under WAC 308-04-075. I have never heard of this particular provision being charged as a crime and I have never heard of the Department of licensing actually imposing an additional suspension upon an individual who fails to surrender his license to the Department of licensing after a DUI related suspension, but legally, both are possible. If you suffer a license suspension, the wise practice clearly is to comply with this law so as to avoid any unforseen difficulty. In our office, attorney Diana Lundin emphasizes DOL practice and can assist regarding fighting the DOL and staying out of trouble with your license.


View the New Ignition Interlock License

New as of January 1, 2009, is the Ignition Interlock License (ILL). This is a brand-new type of a license, never before seen in our state. Recall that an individual arrested for a DUI in Washington state may lose his license either administratively (without a court hearing — imposed by the Department of licensing even if you are found not guilty) or, alternatively, upon a conviction for DUI. The license suspension periods may range from 90 days to two years and beyond. Under previous law, an individual could apply for an occupational license which would permit driving to and from work, but there were required “waiting periods” during which time one was unable to drive for any purpose before the occupational license would be issued.

Under the new ignition interlock law, an individual apply for an “ignition interlock license” even before a suspension goes into effect, there is no “waiting period” before it is effective (although it may take weeks for DOL to process your application,)  and there is no time/place limitation on driving.  The end result is that, if everything works as advertised, there is no interruption in the driving privilege, so long as the individual drives a car that is equipped with an ignition interlock device. (There is an exception to the interlock requirement for employer-owned vehicles used by the employee for work purposes, however.)

There is much more to be said about the ignition interlock license and the 2009 new DUI law is fully discussed elsewhere on our website. However, the driver should be aware that if an ignition interlock license is requested, the right to “appeal” the administrative license suspension is waived.

So, what does an ignition interlock license look like? Is it just a mark on an otherwise normal looking license? Can you use it to cash a check or rent a car? How will it be perceived by the TSA agent when you are trying to board an airplane for a business trip or vacation? The ignition interlock license doesn’t look like the license you’ve seen before.  To view it,  click here.


Driver’s License Death Spiral

I think it was Steve Miller who famously stated, “My Mazerati does 185, I lost my license, now I don’t drive…” While Steve Miller was correct that speeding is one way to lose your license, there are other ways as well. Consider a DUI conviction for instance. Actually wait, consider a DUI charge first. This DUI charge may arise anywhere in Washington State or in any city from Seattle to Redmond to Bellingham. What many drivers in the State of Washington do not realize is that the simple charge of drunk driving (DUI) will suspend your license. Yes, you read this correctly, even before you are even convicted, the Department Of Licensing (DOL) will deny, suspend, or revoke your license or privilege simply because you were arrested. This, however, requires a few caveats. First, the DOL suspends your license if you took a breath test with a reading of .08 or higher. It does so based solely upon the police officer’s “sworn report” (a form with boxes checked by the officer) that you were arrested, your rights were read, and your breath test was .08 or more.  Suspended if you take the test? Ok, what if you refuse? It only gets worse! Either a flat out refusal by the driver, or the subjective belief by the officer that the person is refusing (blowing into the machine improperly) will cause a licensing revocation. A “revocation” is different from a “suspension.” A suspension is for a period not less than 30 days, but not longer then 90 days, while a revocation is at least one year. Therefore, a person with a first time DUI arrest, who provided a breath sample over .08 is subject to a 90 license suspension from the DOL, while the driver who is a first time DUI arrest and refuses, is subject to a one year revocation, all without being charged or convicted of DUI. (Things are worse for drivers holding CDL status, and we’ll discuss that in another article.)

Can you drive during the suspension? A “restricted license” is available after applicable waiting periods, but some people choose to drive even though the license is suspended, figuring that the consequences if they get caught can’t be that bad. They are seriously mistaken. First, committing the crime of Driving While License Suspended, Second Degree is a Gross Misdemeanor with a possible sentence of up to one year in jail and a $5,000 fine. In addition to this if a person is convicted of this crime at a time when they still do not hold a valid driver’s license, the DOL will add another year revocation on top of the previous suspension or revocation in effect at the time of sentencing!

If you think that it can’t get any worse keep reading. If a motorist continues drive and continues to get DWLS 2 charges, it only take a very few instances before a driver is in a position to lose their driver’s license for a minimum term of 7 years, and then face mandatory jail terms beginning at 10 days. This happens because Washington has something called a Habitual Traffic Offender (HTO) statute. There are two ways to be so labeled. The first is to be been convicted of 3 major moving violations (i.e. DUI, Reckless Driving, or DWLS 1 and 2, to name a few) within a 5 year period. The second way to be deemed HTO is to accumulate 20 moving traffic infractions within a 5 year period.

Once a person achieves this HTO status the revocation is for 7 years. Consequently, because the revocation penalties are set up consecutively (as one expires the other takes effect) the cycle can continue until so much suspension time is lined up that an individual will likely die of old age before he becomes eligible to regain his license. This accumulation of suspensions for repeated violations of the suspended license laws is called the DOL Death Spiral. This cycle can only be broken by accomplishing the impossible: finding alternative transportation in this day and age of urban sprawl and poor transit planning and service, or by waiting for the long – distant time when one will be eligible for licensing again.

The best defense from such a tragic downward spiral is driving legally and exercising an abundance of caution regarding the consumption of alcohol and the rules of the road. Moreover, a person charged with a DUI is always well advised to retain an experienced attorney so that all of the complex ramifications of the charge can be understood and the best defense asserted.