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.

Jon Scott Fox Named 2010 Super Lawyer

Jon Scott Fox has been named a 2010 Super Lawyer by Washington Law & Politics magazine. Each year the magazine honors the top attorneys in Washington state based on extensive surveys and independent research. Fewer than five percent of the state’s attorneys from 70 practice areas were recognized this year.

Jon has been honored as a Super Lawyer repeatedly over a distinguished legal career. He has also been named as one of the “Top 25” criminal defense attorneys in Washington state by Law & Politics, and been honored by Seattle Magazine as one of “Seattle’s Best Lawyers.” Avvo gives Jon its very highest ranking for Washington state DUI attorneys.

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.

Hot Tub Your Way to a DUI Conviction?

Washington State DUI laws are among the strictest in the nation. Like most states, the legal limit is .08% but the reading is produced by testing breath alcohol, not blood alcohol. Breath alcohol does not impair a driver; it is only alcohol in the blood that impairs a driver. Thus, a blood test would be the most direct and accurate way to measure the alcohol in a DUI suspect’s system. For a number of reasons, our laws provide that the test of a DUI suspect’s alcohol level will be done by taking a sample of breath only, unless certain circumstances (such as inability to blow or vehicular assault arrest) apply. Thus, the vast majority of DUI cases in Washington State are premised upon a breath test reading of .08 or higher.

When one drinks, the alcohol is absorbed by the body and eventually gets into the bloodstream. That same alcohol gets into the breath of a person through the interaction of the lungs and the bloodstream. It is a well known fact,  however that body temperature affects how much alcohol is passed from the blood to the breath. For instance, if a DUI suspect drank enough beer to produce a  blood alcohol reading of .07 (under the legal limit) you would think that the breath alcohol reading would be .07 as well. If the subject had a fever, however, the breath alcohol reading would be higher, perhaps over the .08 legal limit. This is not a theory but it is a scientific fact.

A study by G.R. Fox and J. S. Hayward published in 1989 in the Journal of Forsensic Sciences investigated whether breath testing inaccuracy would result if a subject’s body temperature was raised by spending some quality time in a hot tub. The study concluded that an elevated body temperature after hot tubbing did result in breath test readings that were significantly higher than blood tests taken at the same time.  The study recommended that breath testing machines be equipped with a device to monitor the temperature of the breath of a DUI suspect when blowing into an evidential breath testing machine such as the Datamaster.

Has anyone hot tubbed their way into a DUI arrest and convcition in Washington State who would have been innocent had they not elevated their body temperature? We will never know because the breath test machines used in Washington State for DUI convictions do not measure breath temperature and DUI officers are not required to take the subject’s temperature before administering  a breath test.

Our firm is committed to providing effective representation for DUI charges arising in Washington state from Seattle to Bellingham and locations elsewhere in the state. We welcome your call.  (425) 451-1995

Drug DUI cop’s opinion not automatically admissible

Officers who have special training to detect whether a DUI driver is impaired by drugs are known as “DRE” or “Drug Recognition Experts.” Washington State has a growing number of officers who have received this training and DUI officers in Seattle and King County are emphasizing the detection and arrest of drivers who are suspected of being DUI because of drugs. Our courts have been clear that the testimony of a DRE officer at trial is admissible only after it is proved that the officer has complied with all of the required “twelve steps” of the DRE protocol. Courts strictly construe this requirement because in any DUI trial, juries tend to give more weight to the testimony of experts. Washington courts holding DUI trials sometimes must look outside the jurisdiction when a question of law is not clearly settled in our state. On the question “Can a police officer with dui drug DRE training testify as an expert despite never having personally examined the accused?” the Kentucky Court of Appeals has recently provided an answer. In that case the prosecution was allowed to present the testimony of a Drug Recognition Expert DUI officer that the accused could have been under the influence of certain drugs, but this opinion was based only upon the officer’s review of medical records and not any personal examination. The court noted that whenever a DRE officer’s opinion was previously allowed by a DUI trial court, the DRE expert had personally examined the accused and had complied with each of the required twelve steps of the DRE protocol. The court stated that “the protocol itself requires an officer’s personal observation, physical testing and examination of the subject.” Therefore, it was error to admit the expert opinion of the drug recognition expert without these requirements having first been satisfied. The Kentucky case, Burton v. Commonwealth, is found in the law books at 300 S.W.3d 126. The decision was published in February 2010.

This DUI case is an example of the complexity of defending a citizen accused of DUI. The defense attorney must be familiar with law and science and must remain current in the field by knowing the rulings of local DUI courts, from Seattle to Bellingham, and also being aware of the decisions of the sister states regarding DUI issues. If you have questions about a DUI charge occurring in Seattle, Bellevue, Bellingham, or anywhere in Washington State, feel free to contact our firm.

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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DUI Jury Renders Verdict on System of Justice

Recently I represented a client who was charged with DUI in the Seattle area after a detention and arrest by a local police officer. A review of the police report led me to believe that this could be a difficult case. All the “signs” police are trained to look for were in this report: Weaving, speeding, bad balance, horizontal gaze nystagmus, strong odor of alcohol, flushed face, bloodshot eyes, and more. I later learned in a pretrial motion that this officer had years of experience making DUI arrests in various jurisdictions and that he had extensive Drug Recognition Expert (DRE) training. He was no stranger to the courtroom, having faced many defense counsel in trial. He was confident, even cocky in his courtroom demeanor.

On the defense side were two witnesses, neither of who were with the accused for the entire evening, and, of course, the accused himself. From the start my client said he was not guilty, that he had refused the breath test because he did not trust the machine, and that he requested a blood test. The evidence was hotly contested on these points in trial. (By the way, I generally recommend taking, not refusing the breath test, but that is the subject of extensive writing elsewhere throughout our website and this blog.)

Several key members of our firm participated with me in the preparation of this case for trial. When the trial began, I was prepared with transcripts of prior testimony of this officer in hearings connected with this case, police manuals pertaing to training and procedures, and photographs/maps of the area of driving and arrest. Audio CDs of the prior hearings were in my briefcase in case the witness should deny the validity or accuracy of the transcripts of prior testimony.

During trial, the officer revealed himself to be extremely confident and at ease in the courtoom – too much at ease, perhaps.  He responded to a question from the prosecutor in a manner that was disrespectful and he interrupted the judge on one occasion. On cross examination, he was a difficult witness, but during the examination it was revealed that he had not told the jury the whole story regarding his DUI knowledge.  He left the jury with the false impression that he had extensive knowledge due to his DRE training but although he had  completed the academic portionof the training, he could not even name the basic twelve steps of the DRE protocol. He did not follow correct procedures for the nystagmus test, which rendered the test invalid, but until this was brought out on cross examination the jury was left with the false impression that the test was validly performed. There were a few other instances of such behavior but it was clear midway through the trial that the defense would argue that  the officer’s credibilty was suspect. Let me say right here that the vast majority of officers I have faced in trial have not conducted themselves in this fashion and they bring credit to their profession. However in this case I argued to the jury that this case had become a referendum about the trial process. Would the jury approve of such disrespect for the Oath to tell the whole truth and nothing but the truth while on the stand? Should they give any credibility to the testimony of a witness who is willing to leave them with half truths and false impressions? The verdict of acquittal by this Seattle jury in this case was more than a judgment about whether the DUI charge was proved beyond a reasonable doubt. It was a statement by the jury that above all, the integrity of our judicial system must remain inviolate.


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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.