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)


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.


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.


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.


No Driver’s License if alcoholic?

The State of Washington emphasizes alcohol treatment when necessary in connection with a Washington state or Seattle DUI arrest or conviction.  However, it is not well known that even in the absence of a DUI conviction or a DUI arrest, the DOL will not issue a license to an individual who has been classified as an alcoholic or an alcohol abuser. Here is the text from the relevant statute:

RCW 46.20.031

Ineligibility. 

The department shall not issue a driver’s license to a person:

     (1) Who is under the age of sixteen years;

     (2) Whose driving privilege has been withheld unless and until the department may authorize the driving privilege under RCW 46.20.311;

     (3) Who has been classified as an alcoholic, drug addict, alcohol abuser, or drug abuser by a program approved by the department of social and health services. The department may, however, issue a license if the person:

     (a) Has been granted a deferred prosecution under chapter 10.05 RCW; or

     (b) Is satisfactorily participating in or has successfully completed an alcohol or drug abuse treatment program approved by the department of social and health services and has established control of his or her alcohol or drug abuse problem;

As the law states, the DOL will issue a license to such a driver who is alcoholic or an alcohol abuser, however, if they are in compliance with a treatment program.The rationale is, of course, public safety. Licensing issues before or after a DUI arrest in Seattle or Washington State are very complex. In our firm, attorney Diana Lundin is our in house source for the latest information regarding DOL implications of a Seattle or Washington state DUI, as her practice is focused upon DOL issues.


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.