A New Breath Testing Machine in Washington State

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 Draeger Alcotest - DUI Breath Test Machinedata 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.

Questions? Call Jon Fox at (425) 274-9190.

 


Jon Scott Fox Named to Washington State Super Lawyers List for 2013

1050 croppedJon Scott Fox has been named by Super Lawyers as being among the top attorneys in Washington state for 2013. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Each year, no more than five percent of a state’s attorneys receive the honor. Jon has been named to this every year since 2003.

Jon is widely recognized as one of Washington state’s top DUI and criminal defense attorneys. He has regularly been named to Washington State Super Lawyers. He has been honored by Seattle Magazine as being a King County “Top Lawyer,” and Washington Law and Politics magazine has listed him as one of Washington state’s “Top 25” criminal defense attorneys. Jon has been given Avvo’s very highest professional ranking, and for the last decade he has received a Martindale-Hubbell AV® Preeminent™ rating. This rating is given to attorneys who demonstrate the highest ethical standards and professional ability.


Jon Fox is a Recipient of Avvo Clients Choice Award for 2013

Jon Scott Fox has received an Avvo Clients’ Choice Award for 2013. The recognition is for receiving high marks from clients for his outstanding legal representation. Over the last six years, clients have given Jon top scores in the areas of trustworthiness, responsiveness, knowledge, and for keeping them informed, with over 99% of them—over 100 Avvo client reviews—giving him the very highest ranking. Here’s what one client had to say:

Jon, it has been roughly two months since the final disposition of the case related to my DUI charge. As I look through the rearview mirror on this extremely difficult episode, I am just now fully appreciating the skill, expertise and wisdom you brought to bear on the outstanding positive outcome of my situation.
Your ability to maneuver through the court and thorough understanding of the legal system undoubtedly had a significant impact on my charges being reduced. Through each step of the process I felt not only informed but that I was receiving wise “counsel.” I have made a career of bringing people together to achieve great results. I believe this comes mainly from having a keen eye and sense for exceptional talent. I could not imagine a better talent or advocate for anyone facing a similar circumstance.

Many thanks for the thoughtful responses from so many clients, and congratulations to Jon Scott Fox for his tireless and superb efforts on his clients’ behalf over the years!

Avvo Clients Choice Award

Jon Scott Fox Named as One of Top Attorneys in State for 2012

Jon Scott Fox has been named by Super Lawyers as being among the top attorneys in Washington state for 2012. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Each year, no more than five percent of a state’s attorneys receive the honor.

Jon is widely recognized as one of Washington state’s top DUI and criminal defense attorneys. He has regularly been named to Washington State Super Lawyers. He has been honored by Seattle Magazine as being a King County “Top Lawyer,” and Washington Law and Politics magazine has listed him as one of Washington state’s “Top 25” criminal defense attorneys. Jon has been given Avvo’s very highest professional ranking, and for the last decade he has received a Martindale-Hubbell AV® Preeminent™ rating. This rating is given to attorneys who demonstrates the highest ethical standards and professional ability.


Jon Scott Fox Honored by Super Lawyers

Jon Scott Fox has been named to 2011 Washington State Super Lawyers. Each year Super Lawyers honors the top attorneys in Washington state from more than 70 practice areas, based on surveys of fellow lawyers, an independent research evaluation of candidates, and peer reviews by practice area. No more than five percent of lawyers in the state are selected by Super Lawyers.
Jon is widely recognized as one of Washington state’s top DUI and criminal defense attorneys. He has repeatedly been named to Washington State Super Lawyers. He has been honored by Seattle Magazine as being a King County “Top Lawyer,” and Washington Law and Politics magazine has listed him as one of Washington state’s “Top 25” criminal defense attorneys. Jon has been given Avvo’s very highest professional ranking, and for the last decade he has received a Martindale-Hubbell AV peer review rating. This rating is given to attorneys who demonstrate the highest ethical standards and professional ability.


Jon Fox Speaks to Attorneys About New DUI Breath Test Machine

Jon Fox spoke to an audience of over three hundred attorneys who attended the 2010 seminar “Defending DUIs” sponsored by the Washington Foundation for Criminal Justice on December 10, 2010. Washington State has only recently approved a new breath testing device for deployment by law enforcement. Next year, the device will be used to test citizens who are arrested for DUI. The device, the Draeger 9510, is largely shrouded in mystery as, to date, no Washington State operator or maintenance manuals are available for release to the public. Mr. Fox’s research for the speech included examination of over 2,000 pages of records he obtained under Washington State’s Public Records Act and review of transcripts of testimony from landmark cases in other states involving the same technology used in the new machine. The new device will be the subject of a new chapter authored by Mr. Fox for the book, “Defending DUIs in Washington,” later this year.


Jon Fox Speaks to Judges on DUI Breath Testing

The Washington State Administrative Office of the Courts sponsors continuing education for judges and most years, includes “DUI Regional” training sessions. This year the DUI regional sessions are being held in four locations throughout Washington State — Lynnwood, Olympia, Kennewick, and Spokane. As of the date of this writing, the first session has been held in Lynnwood. Mr. Fox presented a comparison of the features of the current breath testing machine, the DataMaster, and the soon to be deployed machine — the Draeger 9510. There are a number of key differences between the two machines, some of which reveal potential deficiencies in the DataMaster as currently deployed. The presentation was interactive and used a “pen-enabled” PowerPoint presentation via a tablet PC, which turns such a presentation into a white-board interactive learning session.


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.


Jon Fox Named Top Criminal Defense Attorney in King County

Jon Scott Fox has been named by Seattle Metropolitan Magazine as being one of the top criminal defense attorneys in King County. The result is based upon a survey of peer-review ratings administered by Martindale-Hubbell. According to Seattle Metropolitan, “Our list includes only those practitioners in King County who have been judged by their peers to be ‘AV Preeminent’—the highest peer-review rating available.”
Jon has consistently been recognized as one of the top criminal defense attorneys in Washington state. He has regularly been honored as a Super Lawyer by Washington Law and Politics, and has been named as one of the “Top 25” criminal defense attorneys in Washington by the magazine. Jon has been honored by Seattle Magazine as one of “Seattle’s Best Lawyers,” and Avvo gives him its very highest rating for Washington state DUI attorneys.


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.