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.


Work Vehicle exception to Ignition Interlock Requirement

An ignition interlock license is a license that permits one to drive during a period of license suspension resulting from a DUI arrest or conviction so long as the vehicle being driven is equipped with an ignition interlock device and SR22 insurance is in place. See RCW 46.20.385. Prior law required the device to be installed in ANY vehicle driven by the accused, and this undoubtedly resulted in quite a few folks being fired where their employment required the driving of a company car. Thus, the ignition interlock law has an exception. The law states: “The installation of an ignition interlock device is not necessary on vehicles owned by a person’s employer and driven as a requirement of employment during working hours.” Thus, a license suspension due to a DUI arrest/conviction need not mean loss of job. However, the DOL does require proof that the driver falls within the “employer vehicle exception.” The law states: “The person must provide the department with a declaration pursuant to RCW 9A.72.085 from his or her employer stating that the person’s employment requires the person to operate a vehicle owned by the employer during working hours.” The DOL provides a form (downloadable here) to be signed by the employer and filed by the driver, that must be filed with DOL in order for the driver to be approved to drive the employer’s non-ignition interlocked vehicle. The problem is that, as a practical matter, there will be some employers who will fire the driver when presented with the form simply because they now perceive the employee as an increased risk when driving a company vehicle. There is no doubt that the law providing for an employer vehicle exception is better than the same law without such an exception but as with most things, this law is not perfect. Avoiding this situation altogether is the best approach. Diana Lundin of our office focuses her practice on DOL administrative hearings and ultimately, upon the task of saving a client’s license from DOL administrative suspension and/or ignition interlock requirements.


Seattle DUI – Refuse a Breath Test at your Peril

Our Implied Consent Law states that an individual under arrest for a misdemeanor DUI in Washington state has the “right” to refuse to submit to a breath test. Most citizens know this, and, on average, probably less than 20% of those arrested for DUI in Seattle or elsewhere in Washington State refuse to take the breath test. There are a number of reasons why an individual might refuse to submit to a breath test, however,  including the advice of counsel or a fear that the breath test machine is not accurate.  Those who refuse to breath test might be calculating that they will pay a price for refusing to provide evidence to the state (loss of license for at least one year) but that on the other hand, the prosecution will not have a sample of breath to use at trial.  The decision by the Washington State Supreme Court in the DUI case of City of Seattle v. St. John (No.  81992-1) was issued today and this case changes entirely the calculation regarding refusing to submit to a breath test.  In this case, the Supreme Court held that there is no constitutional or statutory authority preventing the police from obtaining a search warrant for the blood of a driver who has refused to breath test.  Once a search warrant has been obtained, the individual has no right to refuse to submit to the blood test.  Therefore, an individual who does refuse to submit to a breath test at the police station is partially correct in his calculation: the Department of Licensing will administratively revoke the license for at least one year.  However, the prosecution likely will not be deprived of any evidence because the police officer is perfectly entitled to obtain a search warrant for the blood of the individual under these circumstances, according to the Supreme Court’s opinion. This will leave the prosecution free at the DUI trial to argue that the individual showed “consciousness of guilt” by refusing to submit to the the breath test, and the results of the blood test will also be admitted into evidence and argued to the jury. Therefore, it is difficult to conceive of circumstances where an individual under arrest for a misdemeanor DUI would be better off refusing to submit to the breath test if the DUI police officer is going to obtain a sample of the blood via a search warrant in any event.

They are still remain a number of issues regarding the admissibility of a driver’s refusal to submit to a DUI breath test and also regarding the admissibility of any subsequent DUI blood test. Our firm has more combined experience defending Seattle DUI cases and cases throughout Washington State than any other DUI defense firm in Washington State.


“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.


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.


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.


Accidents More Likely Because of Ignition Interlocks?

Installation of an ignition interlock device (IID) in a driver’s car is the intended result of Washington State DUI laws. The ignition interlock device is required to be installed if a driver’s license is suspended due to  a DUI arrest or conviction anywhere in Washington State. This is a statewide law, and applies equally to a Seattle DUI or a Bellevue DUI or any other location in our state. Everybody knows that the ignition interlock  is a device (a bit larger than the average cell phone) that is attached to the wiring of car to prevent the car from starting. However, what is not well known is that Washington State’s DUI law also requires a “rolling retest” after the vehicle has been started. In this process, when the car is in motion, the ignition interlock signals the driver to blow into the device. Here is the part of our state DUI law requiring a rolling retest:
WAC 2-4-50-110 (7) Each device shall require the operator of the vehicle to submit to a retest within ten minutes of starting the vehicle. Retesting shall continue at intervals not to exceed sixty minutes after the first retest. The device shall be equipped with a method of immediately notifying peace officers if the required retest(s) above is not performed, or if the result of the retest exceeds the lower of .025 BAC or the alcohol concentration as prescribed by the originating court. Examples of acceptable forms of notification are repeated honking of the vehicle’s horn, repeated flashing of the vehicle’s headlamps, or the wailing of a small siren. Such notification may be disabled only by switching the engine off, or by the achievement of a retest at a level the lower of .025 BAC or the maximum allowable alcohol concentration as set by the originating court.”
The dangers from the use of cell phones while driving are well documented and have resulted in Washington State’s “cell phone law” that makes it illegal to use your cell phone while driving unless via Bluetooth device. The danger in using cell phones while driving is that they are distracting. However, anyone who has seen an ignition interlock device being used will agree that the ignition interlock device is much more distracting to the driver than a cell phone.  It stands to reason that the distraction caused by the device will lead to crashes and injuries.
The intent of our legislature in requiring the IID is to prevent injury due to DUI. Has the legislature unwittingly increased the probability that those same drivers are more likely to be involved in a crash due to the distraction caused by the “rolling retest?” There is no research in Washington State but the California DMV commissioned a study regarding the effectiveness of ignition interlock in California which found, in the words of the study:
“…drivers installing an IID had a risk of a subsequent crash that was 84% higher than drivers not installing an IID.”
The above quote is taken from page eight of the study: “An Evaluation of the Effectiveness of Ignition Interlock In California,” a report given to the California state legislature in September, 2004. 
Washington State DUI laws are tough and are intended to reduce wrecks and injury caused by drunk drivers. However the ignition interlock law was designed so that it applies to every DUI arrest, making no distinction between the driver who has no prior record and a breath test reading of .08 and the driver whose breath test is .25 and caused an accident. Whereas in previous versions of the law our judges were the ones who decided, on a case by case basis, whether the IID was required, now the DOL makes that decision and requires it across the board with no exceptions.  There is thus no real “targeting” of drivers who have demonstrated the most risk to public welfare in this law. Every driver arrested for DUI in Washington State is targeted for IID. It appears that the Washington State ignition interlock law trades off one risk of harm to the public while accepting another risk. The question is whether it is reasonable to accept an 84% higher risk of crash for every driver arrested for DUI in Washington State. For now, our legislature has said “yes” to that question.


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.