To Do: After a DUI License Suspension.

A good DUI defense attorney will focus on avoiding the DUI license suspension that the DOL seeks to impose after a DUI arrest or conviction. There are separate ways that the license can be suspended – administratively, due to a refusal to submit to the test or because the reading exceeded the legal limit, or due to a conviction of an offense such as DUI for which license suspension is mandatory. If you have served a DUI license suspension,  you are still not legal to drive unless you “reinstate” your license. The DOL does not automatically give you your license back after you have served a suspension. To complicate matters, the requirements for reinstatement are different depending upon the type an length of license suspension. Remember, if your license is suspended, you will need to reinstate the license after serving the suspension in order to drive legally. Fortunately, the DOL has created a web-tool that will step you through the process, and it is pretty easy to access. In some cases, simply payment of a reinstatement fee is required. In others, filing SR-22 insurance, an alcohol evaluation and follow-up treatment is required. In still other cases, you’ll need to take the written and driving exams in addition to other requirements before the license is reinstated. The forms sent by DOL on license suspension are not very helpful when it comes to the requirements for license reinstatement, but the DOL webpage is helpful. Here’s the DOL link that steps you through the reinstatement process: https://fortress.wa.gov/dol/dolprod/dsdreinstatements/. You can always give my office a call (425) 274-9190 for help with this or any criminal traffic related problem. We offer representation for all DUI and traffic related matters, focusing upon cases arising in Western Washington, but offering representation in certain cases in counties east of the mountains.


A new DUI breath testing machine for Washington State?

Washington State is slowly moving forward with plans to deploy new DUI breath testing machines.  The state has already purchased a number of machines, the Draeger 9510, and is in the process of testing them before deploying them to be used in actual DUI arrests.  The state is buying new breath test machines because the machines currently in place (known as DataMasters) are old technology, out of warranty, and are wearing out.  As of the date of this blog, none of the new machines are in actual use in the field.  However, the latest evidence that the state is moving forward with these new DUI breath test machines was the quiet passage of HB 2465.  This new law, effective June 10, 2010, amends RCW 46.61.506 to permit the use of “dry gas” in the administration of a breath test to DUI suspects.  The term “dry gas” refers to a vapor which will be introduced into the breath testing machine pursuant to testing protocol and the purpose is to determine whether the machine is properly calibrated.  Prior law had only authorized the use of a liquid simulator solution in connection with the testing of DUI suspects.


Politics, DUI and the new cell phone law

As of June 10, 2010, Washington State has a new cell phone law.  The publicity surrounding this law has mainly focused on the fact that the new law changes cell phone violations from a “secondary offense” for which a police officer may not stop you, to a “primary offense” for which a police officer may stop you and give you a ticket.   However, some of the details of this law have not received much publicity.  For instance, you can still make a call using your cell phone while driving so long as you don’t hold the phone to your ear.  Specifically, the law (RCW 46.61.667) states: “a person operating a motor vehicle while holding a wireless communication device to his or her ear is guilty of a traffic infraction.” Therefore, under the law it is legal to place your cell phone into speakerphone mode, hold it in front of your face, and make the call.  How is this less dangerous than holding the phone to your ear?

The law states that it is illegal to send, read, or write a text message while driving.  However the term “text message” has no definition in the statute.  This term is generally understood to mean SMS messaging, as opposed to an e-mail message delivered via Blackberry or Microsoft Exchange messaging systems.  No Washington State court decision has interpreted this term to date.

The politicians have stated that this law is all about public safety, just like the Washington State DUI laws, but is this really the case?  The Washington State Department of Licensing states on its web site that a driver talking on a cell phone is as impaired as a drunk driver with a reading of 0.08 blood alcohol.  The DOL also says on its website that a driver who is texting poses the same danger as a drunk driver who is twice the legal limit -0.16 blood alcohol.  We all know that Washington State DUI laws are among the toughest in the nation, designed to address the danger posed to the public by drunk driving.  The penalty for a DUI conviction with a breath test reading of 0.08 will include license suspension, mandatory jail, mandatory fines, mandatory probation, and alcohol classes. A DUI conviction stays on the record for life and it is reported to the driver’s insurance companies via department of licensing records (resulting in “high risk” insurance for DUI drivers.)  In contrast, the new cell phone law specifically states that a cell phone ticket will not go on the driver’s record, and it will not be reported to insurance companies.  Moreover, the fine is $124.

If cell phone driving is as dangerous as drunk driving, then why is the penalty a mere $124?  Also, if cell phone drivers are more dangerous than other drivers, then why is a cell phone ticket not reported to the driver’s insurance company?  The end result is that safe drivers will wind up bearing the increased insurance cost brought about by the risky conduct of cell phone law violators, if the danger posed by cell phone use is truly equivalent to drunk driving.

The ultimate question is this: Is the new cell phone law really about public safety, or is it actually about revenue collection?

The new cell phone law will undoubtedly result in drivers in Seattle and other places in Washington state being stopped by police and if alcohol is smelled, a DUI investigation and arrest.  The validity of the initial detention is always a key issue in a DUI case. Fox Bowman Duarte can be reached at (425) 451-1995.


DUI arrest leads to loss of custody of kids?

Every year, Washington State legislature amends the DUI laws in an effort to make the DUI laws even tougher or to “tune up ” the laws. This year’s legislative session resulted in the passage of HB 3124, a law that went into effect June 10, 2010. The law requires that a police officer who makes a DUI arrest must “promptly notify Child Protective Services” whenever a child under the age of thirteen is present in the vehicle. The details are in the full text of the law, presented below.

There are already a number of “automatic” consequences that accompany a DUI arrest. For instance, if the breath test reading is over 0.08, expect mandatory license suspension, mandatory jail, mandatory fines, mandatory ignition interlock, mandatory conditions of probation, and now, mandatory reporting of the parent’s name to child protective services. It is worth noting that this law applies not only in DUI arrests, but to an arrest for any “drug or alcohol related driving offense.” Also, the law applies only when the vehicle is being driven by a parent, guardian, or legal custodian of the child. As a side note, Washington’s DUI laws also require an increased penalty of sorts in the case of an individual who is convicted of DUI and who had a child under the age of 16 in the vehicle: an additional 60 days of driving only with an ignition interlock will be required beyond whatever other licensing penalties may be imposed. See RCW 46.61.5055(6).

The full text of the law is set forth below.

A law enforcement officer shall promptly notify child protective services whenever a child is present in a vehicle being driven by his or her parent, guardian, or legal custodian and that person is being arrested for a drug or alcohol-related driving offense. This section does not require law enforcement to take custody of the child unless there is no other responsible person, or an agency having the right to physical custody of the child that can be contacted, or the officer has reasonable grounds to believe the child should be taken into custody pursuant to RCW 13.34.050 or 26.44.050. For purposes of this section, “child” means any person under thirteen years of age.

Any Washington State DUI arrest is a serious matter. The lawyers at Fox Bowman Duarte are available 24/7 to help.  Call (425) 451-1995 to reach us.


Talking on Cell Phone Leads to DUI arrest?

Experience has shown that many DUI arrests result from the police stopping a car for reasons that have nothing to do with driving under the influence. For instance, many DUI arrests in Washington State result from an investigation following an officer stopping a vehicle for speeding, failing to use a signal, or similar rather innocuous but justifiable reasons for the detention. Beginning June 10, 2010, the police will have yet another reason to stop a vehicle: Operating a motor vehicle while holding a wireless communication device to the ear. The new law will be in the books as RCW 46.61.667. The law does not require that the driver be talking on the phone. It states exactly that the police may stop the vehicle and if the driver is “holding a wireless communication device to his or her ear.” As of June 10, 2010, this becomes a primary offense which permits law enforcement to stop a vehicle even if no other traffic infractions have occurred.

“Bad” driving is not an element of a DUI charge, although it usually is expected that some driving errors will occur if a person is under the influence of alcohol. In practice, police officers patrolling late at night in search of DUI drivers will stop a vehicle for the most minor traffic infraction as a way to determine whether this particular driver has been drinking. The same traffic infraction likely would result in no police action if it occurred in the middle of the day. Officers have many tools under the law in their quest to apprehend the drinking driver and investigate that person as a possible DUI. Beginning June 10, illegal use of the cell phone will be added to the list of reasons that may justify a detention that results in a DUI arrest.


30 Days for Refusing a DUI Breath Test?

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

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

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

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


Meteors, Cosmic Rays and DUI defense

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

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


Finger Alcohol DUI Test to Replace Breath Testing?

Businesswire.com 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 Businesswire.com 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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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.