The Fox Law Firm is open and available during these very difficult times. Zoom conferences are the next best thing to an in-person consultation, and in those meetings I can advise as to legal procedure, next steps in your case, and share with you documents you may need. Please feel free to call to set up an appointment (425) 274-9190. We can talk by phone as well, the sooner the better. You’ll feel better knowing there is an effective plan in place for your representation.
Today the Washington State Supreme Court found Washington State’s Mandatory Tow Law to be unconstitutional. The law, known as Hailey’s Law, requires police to impound the vehicle driven by a person they arrest for DUI. No exceptions. Under the law it doesn’t matter if the vehicle is safely parked, off the road, or if another person is present who could drive the vehicle. I have seen cases where Hailey’s Law was used to impound a car from the driveway of someone who was arrested for DUI. Getting the vehicle out of impound is time consuming and costly. Is it legal to tow a car after a DUI arrest without police first considering the alternatives, or getting a warrant? The Washington State Supreme Court has unanimously answered “No” to this question. The Mandatory Tow Law is unconstitutional. The Court emphasized that the legislature does not have the power to legislate away our constitutional rights. The published case is State v. Villela, No. 96183-2.
If you have been arrested for DUI after 12:01 a.m. January 1, 2019 or thereafter, and you want to challenge the suspension of your license, you must postmark the Driver’s Hearing Request no later than seven days after the arrest. If you miss this deadline, you won’t be able to challenge your license suspension. Here is a link to the DOL form to use if you want to mail the request in: (Not posted by DOL’s site as of this writing). Also, here is a link to the DOL Portal where you can request the hearing online: https://www.dol.wa.gov/licenseexpress.html
NOTE: The seven-day deadline applies to arrests occurring 12:01 a.m. 1/1/19 and after. Prior to that, the existing 20 day deadline (referred to many places on this website) applies. Please feel free to call me, Jon Fox, at (425) 274-9190 or email me at email@example.com if you have questions or if I may be of any assistance.
Law enforcement has announced that “E-DUI” enforcement patrols will be stepped up in April with over 150 Washington police agencies participating. “E-DUI” refers to Washington State’s distracted driving law which went into effect on July 23, 2017. It’s called “E-DUI” because, as is pointed out on theDOL’s webpage, talking on a cell phone while driving is the same as driving at a .08 alcohol level. DOL also says that texting while driving is the same as driving at a .16 alcohol level – double the legal limit. So, it makes sense that the penalties for an alcohol DUI are the same as for an E-DUI, right? Let’s find out.
For a first offense DUI, the Washington State penalties include one day in jail minimum (up to a year), a fine of approximately $1,000 (up to $5,000), three years of high risk insurance, a 90 day license suspension (up to two years), ignition interlock for a year, up to five years on probation, and a permanent criminal record.
What’s the penalty for the new “E-DUI?” First of all, it’s not even a crime, so there’s no criminal record and no jail is possible. The penalty for an E-DUI is $136 for the first offense, and $234 for the second offense. That’s it.
For over thirty years, I’ve been providing vigorous representation to folks who are faced with the frightening and harsh penalties that come if there is a DUI conviction. I know that many people who are arrested for DUI are unaware that their alcohol level is over the limit. By comparison, every person who is driving and talks or texts on a cell phone they’re holding knows that they are breaking the law.
Either the penalties for an alcohol DUI are too harsh, or the penalty for an E-DUI is too lenient. The legislature can’t have it both ways. On the one hand, every year the legislature looks for ways to make the DUI laws harsher and arguably the laws are now too harsh. On the other hand, if the DUI laws are not deemed too harsh, then the E-DUI law the legislature passed last year is just a feel-good hypocrisy.
In a DUI case, the breath test results can send you to jail. Juries generally place great faith in breath tests, reasoning that the State wouldn’t use a breathalyzer that can’t be trusted. Technology has changed things. The first breath test devices used to prosecute DUI cases were mechanical and used solutions that could be verified as proper for use. Before being put into the police stations for use on actual DUI suspects, these machines were tested as much as could be expected given the technology of the day. The most recent breathalyzer, the Draeger 9510, is now being used throughout Washington State and it is controlled entirely by computer software. Despite it being possible to do so, the state has not subjected the Draeger software to rigorous testing. A public records request revealed an email wherein the decision was made by the state to “throw caution to the wind” and deploy the Draegers without rigorously testing the software. When software is not thoroughly tested, there can be unforeseen consequences. The Draeger is programmed to print out a full page document on completion of the breath test. This document is quite impressive, containing all sorts of information about the breath test such as length of blow, volume of breath, and of course, the breath test readings. The printout even has the date the Draeger was last calibrated (called a QAP) and this, of course, must show a date prior to the subject’s breath test being administered. One day, however, I came across a Draeger test printout that looked normal in all regards except that it showed that the calibration occurred in the year 2050! This was not the mistake of the operator. The correct date of calibration (2017) had been correctly keyed into the Draeger but later, without human intervention, the Draeger software changed that date to 2050. I expect by the time this blog is published, the state will have a perfectly logical explanation for this disturbing situation. However they explain it, we are left wondering how many other software glitches are running undetected in the background of the Draeger 9510. By electing not to rigorously test the software of the Draeger 9510, the state has added another feature to this technological marvel: Reasonable Doubt.
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.
This 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.
Avoiding license suspension is one of the goals of a DUI attorney, but no attorney can guarantee a win on this front. When a suspension is imposed, knowing the proper steps to take after the suspension has been served is very important. If you have just finished serving 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. The requirements for reinstatement are different depending upon the type an length of license suspension. The DOL has created a web-tool that is a good way to know what DOL is requiring, and how to comply. Find it here: https://fortress.wa.gov/dol/dolprod/dsdreinstatements/. 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. TYou 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 also offering representation in certain cases in counties east of the mountains.
For more than 30 years, Washington state law enforcement has been using a breath testing machine known as the BAC Verifier Datamaster to test people who have been arrested for DUI. By today’s standards, this machine is antiquated technology. A Washington State Patrol email your author obtained in connection with a DUI case describes the data master “obsolete.” In recent years, the state patrol has had difficulty maintaining this machine. It is out of warranty, and replacement parts were difficult to find. Approximately 5 years ago, the state patrol embarked upon a search for a replacement machine. The new machine, the Draeger Alcotest, was purchased and approved for use more than three years ago. However, for reasons that are yet to be determined, it was not placed into police departments for use with live subjects until just a few months ago. The true reasons for the delay in placing into the field what otherwise would appear to be a brand-new state-of-the-art machine have not been revealed by the state patrol. However, it is expected that discovery in upcoming criminal cases will provide the answer.
At this time, the Draeger has been installed in police stations in a few counties in Washington state. What makes the Draeger unique is that whereas the DataMaster breath test machine provided two breath test readings, the Draeger provides four breath test readings. The individual is required to blow twice into the machine, the machine analyzes each breath sample using two separate technologies: Infrared Spectroscopy and Electrochemical Analysis. If you are reading this after you have been arrested for a DUI, you can tell whether you were tested on the old machine or the new machine by looking at the breath test document.
The author of this blog has already spoken at three separate seminars devoted to educating attorneys about the Draeger and is currently working on a new chapter in the book Defending DUIs in Washington that will detail the operation of the machine and potential defenses. This chapter will be co-authored by attorney Ted Vosk, who is nationally known for his advocacy for integrity in breath testing.
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.
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.