Snohomish County DUI Emphasis Patrols “Night of a Thousand Stars”

December 11, 2009 was the evening of the annual “Night of a Thousand Stars” kickoff in Snohomish County. The name derives from the badges worn by the reported nearly 1,000 DUI officers who patrolled throughout Washington state on this date, looking for drunk drivers. The Night of a Thousand Stars is part of a continued annual cooperative effort by the Washington State Patrol and other police agencies to increase DUI arrests and to decrease the incidence of DUI by increasing public awareness of police presence on the roads.

Certain legal issues can arise from such programs particularly where police officers make arrests outside of their jurisdiction, or where there is insufficeint probable cause for the detention or arrest of the citizen who is driving through an area saturated by such emphasis patrols.

DUI accidents involving police bound to lead to increased DUI efforts

Every holiday season, Washington State police agencies step up DUI patrols as part of an increased DUI awareness and enforcement program. In most cases, a DUI arrest happens after an officer observes some driving error and pulls the vehicle over.  Two recently reported cases are unique in that the police vehicles were struck by vehicles and the accident investigation resulted in DUI arrests for the driver.  In both cases, police officers were sent to the hospital as a result of the collisions.  It is reported that both the officers involved in the collisions will recover. You can read about the collisions here. These incidents received a lot of publicity and there is no doubt that the police determination to detect and apprehend DUI drivers has been increased by these incidents.

Can I take a blood test instead of a breath test?

When a person is arrested for a misdemeanor DUI and taken to the police station the police will usually ask: “Will you take the breath test?” The answer to this question can greatly influence the complications that will arise from the DUI arrest, including length of license suspension and also the mandatory minimum DUI criminal penalties.  Some people don’t answer with a “yes’ or “no” but rather with the statement “I would like a blood test.” Here is one of the confusing points about Washington State DUI law and a major difference between how our state processes DUI arrests as compared to the procedures used by other states. In Washington state, you don’t have a choice between breath, blood or urine, as you do in other states. You can either take the breath test or refuse to take it, but saying “I’d rather take a blood test”  is legally the equivalent of saying “I’m refusing the breath test.” If you say that, you will be deemed to have refused the breath test, thus incurring a license revocation for at least a year and increased penalties as compared to someone who took the breath test. However, you do have the right to an “additional” test administered on your own, separate from the duty to give breath for police evidential purposes. This additional test is almost always a blood test drawn at a local hospital and it serves the purpose of providing independent evidence to challenge the police breath test. This is an important due process right and the arresting officer cannot take steps to thwart your effort to obtain the independent blood test.

Therefore, the short answer is that you can’t “choose” a blood test in place of the breath test the police are asking you to take, but you have a right to get an independent blood test later to refute the breath test. However, as with all things in the law, there are exceptions and caveats. For instance, sometimes the officer has a right to request a blood test, not breath, and you must give a “yes” or “no” to the police blood test. Under this scenario, you still have a right to an independent blood test.

Further, believe it or not, if you refuse the breath test by stating that you want a blood test, this will count as a “refusal” despite the fact that the officer then has the right to secure a warrant to force you to give blood, and despite the fact that you were at all times willing to give blood.

These rights and more are spelled out in the Implied Consent Law, RCW 46.20.308.It is not exactly a model of clarity and lawyers have been litigating the interpretations of this law for years. After you read this law, it is easy to understand why it is a good idea to exercise the right to speak with a lawyer before making the decision to take a breath test. Our firm, Fox Bowman Duarte, has a lawyer on duty 24/7 to help when called.

How much to drink is “too much?”

This holiday season, the DUI emphasis patrols will be out in King County and throughout Washington State, patrolling in an increased effort to make DUI arrests. Undoubtedly, DUI arrests will occur. In some of those cases, the driver will be arrested and charged with DUI despite making a good faith effort to drink responsibly. That driver begins the night with the question: “How much is too much to drink?” and finds that the legal answer is not easy to determine. The simple answer is that “too much” is the amount that causes a breath test reading of .08 or more within two hours of driving. This is the clear cut standard set by law under RCW 46.61.502. But how is a driver to determine whether he or she is .08 or higher before driving? The fact is that there is no practical way to make this determination with precision. Although you might recall hearing a “One Drink Per Hour” rule, and the liquor control board publishes charts that are helpful, there are so many variables (biological, instrumental, etc) involved that the rule or chart is at best only an estimation.  Even if the chart was 100% accurate in a given case, simply having a reading under .08 is no guarantee that that a DUI arrest and prosecution cannot occur because the officer can arrest and charge in such a case if he is of the opinion that the suspect’s ability to drive was impaired in any appreciable degree.

Another difficulty in determining whether it is “safe to drive” is that there is tremendous variability regarding what constitutes a “drink” depending upon who mixed the drink and further, there is variability in the amount of alcohol in certain similar-sounding drinks. For example, a glass of beer might have 5.6% alcohol (Anchor Porter) or 2.5% alcohol (Pabst Extra Light) depending upon the brand/type. In the example above, two glasses of Anchor Porter would have approximately the same alcohol content as four glasses of Pabst Extra Light, but there are not many people who make this type of calculation when they are out on the town.  It is possible to reasonably estimate the alcohol level in one’s blood using a time-tested formula known as Widmark’s formula. This formula is used in DUI trials to calculate a breath alcohol level based upon percentage of alcohol in the drink, number of drinks, time of consumption, sex, weight and other factors. Although this formula is accepted evidence in DUI trials, as a practical matter it is of little use to the driver who wonders whether he/she is safe to be on the road.

The best advice, as always, is to have designated driver provide transportation. That is the only sure way to avoid problems given the severe penalties in Washington State’s DUI laws.  Alternatively, there are portable alcohol breath testing devices that can give a ballpark estimate as to an individual’s breath alcohol level. The caveat that bears repeating, however, is that it remains a violation of Washington State’s DUI law to drive when one’s ability to drive is impaired in any appreciable degree even if the breath test reading is under the legal limit.

Holiday DUI Patrols are coming

Although there has not yet been a formal announcement, expect to see DUI holiday patrols this year from Thanksgiving through New Year’s.  This time of year, state troopers and other police agencies work in unison to increase their presence for DUI emphasis patrols.  In the past we have seen, for instance, a coordinated DUI enforcement effort from nine police agencies in King County’s eastside– Bellevue, Kirkland, Redmond, Medina, Lake Forest Park, Issaquah, Bothell, Mercer Island and the city of Snoqualmie. When the DUI task force is patrolling, more people get arrested for DUI.

These officers are looking for any driving errors or other probable cause that gives them arguable legal justification to stop a vehicle. If they smell alcohol from the driver, the traffic stop changes into a full-blown DUI investigation and perhaps an arrest. Their goal is a laudable one – removing the impaired driver from the road.  Legal issues are raised by this approach. For instance, if a Bellevue police officer stops a vehicle in Kirkland, it must be shown in court that a proper interjurisdictional agreement authorized the Bellevue officer to patrol in Kirkland.

Obviously, the best way to avoid the legal and professional problems resulting from a DUI arrest is not drive at all after having had anything to drink.  That’s easy advice to give but the law does allow a citizen to lawfully drink and drive so long as the ability to drive is not impaired and the driver is not over the legal limit.  Still, a number of law abiding citizens who make legitimate efforts to consume alcohol responsibly will find themselves snared in this year’s DUI dragnet.  DUI charges are routinely filed even where breath test readings are well below the legal limit if the officer believes that the driver’s ability to drive is impaired by alcohol to any appreciable degree.   In this sense, it is not wise to rely upon the “BAC Charts” issued by the state liquor control which can be found in liquor stores, because a breath test reading under the legal limit is no guarantee that a driver won’t be arrested  and prosecuted for DUI.

Our DUI law, RCW 46.61.502, criminalizes two things: (1) driving with a prohibited level of alcohol in the blood, and (2) driving while impaired by alcohol.  The relevant text of the law is set forth below.

RCW 46.61.502

(1) 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:

(a) 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 or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug

Do I have to go to Jail for a DUI?

The possibility of serving time in jail is one of the most frightening things about being arrested for DUI. Many Washington State Patrol troopers routinely book into jail every person they arrest, thus many people already have had a view of what jail can be like. It is an unpleasant experience all around.

For a first conviction for  DUI, RCW 46.61.5055 requires the judge to impose a day in jail (a full 24 hours). Therefore, if an individual was booked into jail and served 12 hours in jail, the law does not permit the judge to grant credit for time served and the convicted individual will be still required to serve the full 24 hours in jail at a minimum. However, there are several alternatives to jail that, depending upon circumstances, may apply. The first is that the law permits, in the case of a first DUI conviction, service of electronic home detention instead of jail. However, it takes fifteen days of electronic home detention to replace one day in jail. That’s fifteen days of restricted liberty to avoid one day of restricted liberty. On the plus side, an individual on electronic home detention is allowed to go to work, but generally, otherwise, the individual must remain at home.  The second alternative that can avoid jail is the exception stated in the law as follows:  “Twenty-four consecutive hours of the imprisonment may not be suspended or deferred unless the court finds that the imposition of this mandatory minimum sentence would impose a substantial risk to the offender’s physical or mental well-being.” Our firm has successfully argued for this exception and with proper preparation and documentation, courts are willing to suspend the imposition of jail. However, most judges will replace the jail requirement with electronic home monitoring, as discussed above, so this alternative is more useful where an individual is facing substantial jail time due to prior DUI offenses. It is worth emphasizing that judges will only grant this exception with presented with appropriate documentation, usually in the form of medical or psychological reports bolstered, where necessary, with supporting testimony. A third legal alternative that will avoid the imposition of jail is the deferred prosecution alternative authorized under RCW 10.05. This alternative applies in the case of an individual who is alcoholic, drug dependant, or suffering from mental health issues. In essence, if the individual commits to treatment and waives trial rights, the judge may “defer” prosecution for five years. During this time the treatment program is completed and the individual must strictly comply with court and DOL imposed conditions. Upon successful completion, the case is dismissed. There is much more to a deferred prosecution than is covered here, but it does avoid jail time. However, a deferred prosecution should not be used simply as a way out of jail, but as needed treatment for a problem. If an individual does not succeed in a deferred prosecution, a DUI conviction will follow and with it, jail.

There is another alternative to jail time – successfully litigating a DUI case and either winning at trial or securing a reduction of the charge that does have a mandatory jail penalty. It is important to consider all the alternative outcomes to the case early on when deciding how to proceed next when one is arrested for DUI.

Exactly What Is An Ignition Interlock?

IMG00105-20091012-0945Many people shudder at thought of having one of these devices and are disappointed to learn that this device may be the only way that can drive their car for period of time in the future. The reality is, with Washington State DUI laws become harsher ever year and with legislative lobbying by MADD and other interest groups, the ignition interlock will soon be a reality for many citizens who are accused of drinking and driving. It is an unpleasant surprise for many to learn that this device can be required even without having ever gone to court! This is because every DUI arrest is followed by an independent licensing suspension from DOL. This action by DOL must occur within a finite period of time after the arrest regardless of whether the arrestee has even been to court on a first appearance.

Where a person has never been arrested for a DUI within the previous 7 years, and the person provides a breath sample of .08 or above, the DOL will seek to suspend the person’s license for 90 days. On the other hand, if the arrested person refuses to provide a breath sample, the DOL will seek to revoke the person’s license for 1 year.  Where a driver has previously been arrested for a DUI and that arrest occurred within the past seven years, the driver faces a 2 year loss of license regardless of whether the arrested person provides a sample of their breath.

While most suspended or revoked people are eligible to continue driving during their suspension periods, this is allowed ONLY with an ignition interlock license (IIL) which obviously requires an ignition interlock device (IID) on their vehicles.  Here is what an the device looks like.

This ignition interlock is handheld and requires the driver to provide a breath sample prior to the vehicle being started. Once a sample is provided, analyzed, and clear, it will permit the vehicle to start. During the drive time the device will randomly and frequently require the driver to provide samples. As a result, many drivers will be required to place the device in their lap as they drive for easy access when prompted for a sample.

While installation and maintenance are an issue, as well as the fact that the device has many limitations, complications, and false positives, those issues will be left for another discussion. In the meantime, what citizens need to know is that although the device can be hidden under the seat, in a console, or even a glove box when the vehicle is parked, there is simply no way to use the device while driving discretely. It will always be seen by the passengers. As a result, the ignition interlock device is the “scarlet letter” for every driver who has one.

Experienced and aggressive legal counsel is critical immediately after a DUI arrest so that the accused will have the best chance possible of avoiding the DOL suspension. If you or someone you know has been arrested for DUI they will almost certainly face a DOL action and only have 20 days to respond. Regardless of where you live, the Seattle DUI Attorneys of Fox Bowman and Duarte can help.

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.

A DUI Exception to the Constitution?

Today, according to an article in the Washington Post,  Justice Roberts of the United States Supreme Court “spoke out” about a DUI case. He was joined by Justice Scalia in  dissenting from the decision of the other justices of the Court to deny review of a ruling from the Virginia Supreme Court. The Virginia court found a police detention of a suspected DUI driver was unconstitutional where Virginia police stopped a car for DUI based upon an anonymous, uncorroborated tip to a “drunk busters hotline.”  The Virginia Supreme Court ruling is in line with established law in Washington state.

 In Washington State this very issue was considered twenty seven years ago in the case of Campbell v. DOL. In that case an anonymous tip was given to police that a vehicle was driven by a drunk driver. Nothing was known about the reliability of the person giving the tip, nor was anything known about the facts upon which the tip was based. An officer followed the “offending” car and saw nothing unusual, but he pulled it over anyway.  Applying well-established principles of law, and relying upon precedent from the United States Supreme Court, the Court of Appeals reasoned as follows:

  •  “The case before us involves the unusual situation of a police officer on traffic detail stopping an automobile driver for suspicion of drunken driving when the officer has absolutely nothing to suggest that the driver was under the influence of intoxicating liquor except a conclusory tip from an unidentified passing motorist that the driver was drunk.”
  •  “A police officer may make an investigatory stop for suspected drunk driving, but before doing so he must first possess a well-founded suspicion based on articulable facts that such a violation has been committed or is presently being committed.”
  •  “The passing motorist in this case provided no factual information from which the officer could assess, as he must, the probable accuracy of the motorist’s conclusion.”
  •  “The State argues, however, that the initial detention was nonetheless reasonable due to the threat of harm to third parties and the resultant need for an immediate police response. We agree that the seriousness of the suspected criminal conduct is a relevant consideration in the reasonableness calculus, e.g., there must still exist some measure of objective fact from which the conclusion of criminal conduct can reasonably be derived. To hold otherwise would be to expose every citizen’s right of privacy against arbitrary invasion by others to the unfettered exercise of an officer’s discretion. This is what the Fourth Amendment was enacted to prevent. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, …”

 It is not difficult for an officer to obtain the corroboration needed to stop a suspected DUI driver based upon a citizen offering only an anonymous tip. The officer might simply ask: “Who are you and how do you know?” and then the tip would be neither anonymous nor uncorroborated. Barring that, the officer might just rely upon his training. As the Campbell court pointed out:

 “It is perhaps appropriate to observe that driving while under the influence is not a readily concealed offense. For example, the Washington State Patrol Academy’s current training manual lists some 44 different “detection clues”, based on the manner in which a vehicle is operated, which indicate that the operator may be under the influence.”

 Courts have, for years, employed the Constitutional principles underlying Campbell to determine whether a detention is legal in the context crimes such as murder, robbery, and the like. However, the temptation to create a DUI exception to the Constitution is strong, and maybe Justice Roberts is not strong enough.

Justice Roberts stated: “I am not sure that the Fourth Amendment requires such independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.”

 I do,  of course, have all the appropriate respect for Justice Roberts. However, it is elementary that the protections established by the founders of this nation (and preserved at the cost of the lives of many courageous patriots) DO NOT change according to the crime that is charged. Every citizen of this country, even a citizen charged with DUI, is entitled to the protections afforded by our Constitution.

Do Zero Tolerance DUI Laws for Minors Work?

Nobody wants minors to drink and drive and Washington’s law regarding this is known as a “zero tolerance” law. Washington’s law prohibits a minor from driving after consuming alcohol. The law is commonly known as a “Minor DUI” but it a violation does not require proof that the minor drove under the influence of alcohol.  All that is required is that the minor drive after drinking, as evidenced with a breath test reading of .02 or higher. Here is the text the pertinent part of Washington’s “zero tolerance” law:

RCW 46.61.503 Driver under twenty-one consuming alcohol — Penalties.  

(1) Notwithstanding any other provision of this title, a person is guilty of driving or being in physical control of a motor vehicle after consuming alcohol if the person operates or is in physical control of a motor vehicle within this state and the person:

(a) Is under the age of twenty-one;

(b) Has, within two hours after operating or being in physical control of the motor vehicle, an alcohol concentration of at least 0.02 but less than the concentration specified in RCW 46.61.502, as shown by analysis of the person’s breath or blood made under RCW 46.61.506.

Everyone would agree with the intent of this law and it is hoped that the existence of this law would deter teen drinking and driving.  However, Science Daly reports that a study by a Sam Houston State University economist found that these laws have no effect. The economist analyzed data from 30,000 fatalities in nighttime accidents involving drivers under age 21 and concluded that “zero tolerance” laws did not modify the behavior of drivers under age 21.  This conclusion was based upon his statistical analysis of blood alcohol concentrations involved in drivers two years before zero-tolerance laws were enacted in a particular state, and again two years after enactment.

This is not to say, however, that these laws should be repealed.  These laws should be viewed as part of an overall program intended to reduce teen tragedies related to drinking and driving. Concurrent alcohol education and changing the attitudes of drivers under 21 about drinking and driving, in conjunction with “zero tolerance” laws is bound to have a positive impact in the future. The mere existence of a “zero tolerance’ law by itself is simply not enough.

To learn more about the implications of a Washington state criminal traffic conviction contact the experienced Seattle Minor DUI Lawyers at Fox Bowman Duarte for a FREE legal consultation to discuss your Minor DUI case.