Oregon Appeals Court Rules Accused Drunken Driver ‘Coerced’ Into Blood Test

Recently, an Oregon Appeals Court found that a suspected intoxicated driver was ‘coerced’ into providing a blood test.  Police and prosecutors say a court of appeals ruling will make it more difficult to investigate and prosecute suspected drunken drivers. Although a man accused of drunken driving gave his consent to have his blood drawn for testing, the Oregon Court of Appeals ruled this week that the consent was coerced and should be suppressed. In a 6-4 decision, the appellate court found that the man’s consent was not voluntary because he agreed after a police officer read him the penalties of not complying, as required by state law. The court also ruled that the officer, who had probable cause to believe the driver was intoxicated, could have obtained a search warrant by phone without sacrificing evidence and should have done so.Washington drivers have likewise given their consent and this recent ruling may serve as a model for future challenges here in Washington. Currently, a DUI arrestee is most often requested to give a breath sample and the person is likewise informed of the consequences of refusing a sample, or providing a sample. These warnings are called Implied Consent Warnings and are found in RCW 46.20.308 and state the following:

(a) If the driver refuses to take the test, the driver’s license, permit, or privilege to drive will be revoked or denied for at least one year; and (b) If the driver refuses to take the test, the driver’s refusal to take the test may be used in a criminal trial; and (c) If the driver submits to the test and the test is administered, the driver’s license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if the driver is age twenty-one or over and the test indicates the alcohol concentration of the driver’s breath or blood is 0.08 or more, or if the driver is under age twenty-one and the test indicates the alcohol concentration of the driver’s breath or blood is 0.02 or more, or if the driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and (d) If the driver’s license, permit, or privilege to drive is suspended, revoked, or denied the driver may be eligible to immediately apply for an ignition interlock driver’s license.

If a driver refuses to provide a breath sample, something that they have a right to do and are specifically told of this right, an officer may apply for a search warrant for the purpose of drawing blood from the arrestee against that person’s will. You will notice that the above warnings do not inform the person of this possibility. Oregon has a similar provision which the Appeals Court appears to have alluded to and heartily endorsed.

On this point, Oregon is not alone as the Washington Supreme Court recently endorsed this search warrant procedure in the case of City of Seattle v. St. John. Under normal circumstances a blood sample is not usually requested and drawn because breath testing is done. However, in certain circumstances blood is sought first. These circumstances are where the suspected driver is; 1) receiving aid and a breath test machine is not available; 2) the driver has injured another person; 3) the driver killed another person; or 4) the driver is unconscious or otherwise incapable of providing a breath sample and the officer has probable cause to believe that person was DUI.

An additional circumstance where police can request a blood sample is if a person has undergone an exam with a Drug Recognition Evaluation (DRE) and the officer suspects the person to be under the influence of a drug.

Under current Washington law, regardless whether a person arrested for DUI is requested ot provide breath or blood, their right to refuse either test can be ignored and they can have blood taken from them with force under the authority of a search warrant. While this search warrant has been recently upheld, the ruling in the Oregon Court of Appeals may provide new life for a future challenges in light of the fact that the Washington State Constitution gives more protection to citizens from these types of searches. However, it will take a lawyer with unique experise in Washington DUI law to recognize the right case and prepare it for such a important challenge. At Fox Bowman Duarte, both our Bellevue and our Bellingham locations are staffed with talented lawyers that possess this unique skill set.

 

 


Reckless Endangerment can be a DUI Plea Bargain

A DUI conviction carries a mandatory sentence include mandatory jail, fines, alcohol evaluation/treatment and more, that the judge is required by law to impose, with rare exceptions. In addition, the Department of Licensing imposes mandatory license suspension and ignition interlock requirements upon receiving notice that a driver has been convicted of DUI. A person charged with DUI benefits from a reduction of a DUI charge to a “lesser charge” since the reduction usually avoids most of the mandatory penalties that come with a DUI conviction. Today’s prosecutors are generally reluctant to offer a reduction of a DUI charge unless the defense lawyer can show the prosecutor that there are significant factual or legal issues that imperil the prosecutor’s ability to prove the case. As a result it may agreed that the DUI charge will be amended to a different charge such as Reckless Endangerment. This compromise benefits both the prosecution and the defense. Although no mandatory jail is required upon a conviction for Reckless Endangerment, the judge always has discretion to impose any sentence that the judge deems appropriate – up to a $5,000 fine and one year in jail. Typically the judge will “suspend” some or all of the jail time upon required conditions that generally track conditions of probation imposed upon a DUI conviction – lawful behavior, alcohol evaluation and follow up, abstinence from alcohol (where recommended by the evaluation), probation, etc. Violation of any of these conditions of probation can result in the judge imposing the balance of the jail or fine. In addition, a reduction to Reckless Endangerment, will be treated as a “prior offense” that will increase the mandatory minimum sentence to be imposed in the event of subsequent DUI arrest and conviction within seven years of the arrest in the current case. This is because the legislature has recognized the practice, where appropriate, of amending a DUI charge to a different charge with different sentencing options. See RCW 46.61.5055(13)(v). The accused also benefits from a reduction to Reckless Endangerment. There is no mandatory jail time, license suspension or “high risk” insurance required by virtue of a conviction for Reckless Endangerment and it is not a driving offense (however, remember that this will not affect any “administrative suspension” of the license already imposed by the DOL.)

Although the prevailing public opinion likely disfavors any reduction of charges when a citizen is charged with DUI, a reduction to Reckless Endangerment is recognition by the prosecution and the defense that each side has a risk of losing if the matter proceeds through full litigation and thus, each side is willing to accept a reasonable compromise.


Cancellation of Ignition Interlock License?

The new ignition interlock license is taking some of the sting of the lengthy license suspensions that the Department of Licensing issues upon a DUI arrest or conviction.  The ignition interlock license permits an individual to drive anywhere, anytime, so long as the vehicle being driven has an ignition interlock (with certain exceptions) and proof of financial responsibility (“SR-22” insurance) on file with the Department of Licensing. However, an individual who is driving on an ignition interlock license needs to be very careful, because the DOL has the power to revoke the ignition interlock license.  The ignition interlock statute, RCW 46.20.385, provides as follows:

(5) The director shall cancel an ignition interlock driver’s license upon receipt of notice that the holder thereof has been convicted of operating a motor vehicle in violation of its restrictions, or of a separate offense that under this chapter would warrant suspension or revocation of a regular driver’s license. The cancellation is effective as of the date of the conviction, and continues with the same force and effect as any suspension or revocation under this title.

Therefore, if a driver has a two-year license suspension and has successfully applied for and received an ignition interlock license, that individual may drive pursuant to the terms of the license during the entire two-year suspension.  However, if the driver is subsequently convicted of an offense such as reckless driving, hit-and-run, or another “license-suspendable” offense, the ignition interlock license is canceled and the individual may not drive for any purpose for the remaining duration of the license suspension.
In essence, this is a “no tolerance” provision intended to ensure that individuals who are driving during a suspension pursuant to ignition interlock licenses will be law-abiding drivers.  However, this section of the ignition interlock law must be kept in mind whenever a defense lawyer undertakes to represent an individual who is currently driving on an ignition interlock license and who is charged with a subsequent offense that carries license suspension as one of the penalties.


Washington State DUI Grounds Pilot?

When it comes to pilots and DUI law, there are a myriad of federal regulations that apply but in some respects, Washington State DUI law pertaining to pilots is tougher than Federal regulations. Although Washington State cannot revoke a pilot’s certificate upon a conviction for “flying DUI, “  a pilot who is convicted of operating an aircraft recklessly or while under the influence of alcohol or drugs can be prohibited, at the discretion of a judge, from operating an aircraft anywhere within Washington State for up to one year. This means the pilot whose aircraft is hangared in Washington State is effectively grounded for one year as a sanction for flying under the influence of alcohol (DUI in the sky) or operating an aircraft recklessly. Note that the law may be violated on the ground as well as in the air. Reckless operation on the ground during taxi, or “DUI while taxiing” can result in the one-year grounding of a pilot in Washington State. (This is similar to the penalty imposed in the case of a Washington State DUI committed in a vehicle which results in driver’s license suspension.)

There are a myriad of federal and state complications facing a pilot, whether private or commercial, who is arrested for a Washington State DUI whether in a vehicle or as a consequence of operating an aircraft. For a pilot, just as with any citizen, it is important to seek effective legal representation when charged with DUI or any alcohol related offense involving an aircraft.


DUI Police Reports – Real or Canned?

Every Washington State DUI arrest should be well documented in a DUI police report. DUI police officers receive special training in report writing so that they can testify fully when a DUI case is litigated in court. In past years, we have seen a few strange things regarding police report writing. A few officers had “canned” language in the police reports that was identical in every DUI arrest made by that officer. While that practice apparently is in the past, it can’t be denied that the current police report forms emphasize “check box” observations so that an officer won’t have to articulate what actually happened. It’s easier to just check a box. The problem with this approach is that it can become a habit for officers to check the boxes in DUI preprinted police reports, so that a box might be checked even if it doesn’t apply. The failure of most agencies to videotape arrests amplifies this problem. The police report form used by the Washington State Patrol when documenting a DUI arrest is actually posted on the State Patrol website; the Seattle DUI squad has no similar webpage although their officers use a similar form. Both forms have a number of “checkbox observations.” The whole issue of police report writing is coming to a head in Vallejo, California. The news webpage nbcbayarea.com reports that the Vallejo Police Department is outsourcing the typing of police reports. The officer dictates the substance and the file is emailed out of state where it is typed. The article did not report on any safeguards to insure that the DUI police report reflects what actually happened in the DUI arrest. There are arguments on both sides of this practice, but it might be that a police report that is dictated by the DUI police officer soon after an arrest would be more accurate than a bare-bones report with “appropriate” boxes checked.

Our firm examines all evidence in a Washington State DUI with a critical eye. Experience shows that, especially in the case of a police report documented by the DUI officer checking boxes, favorable facts are often found through careful investigation – looking “behind” the report.


Seattle DUI due to “Drug Dumping?”

A Washington State DUI arrest almost always involves alcohol. Although the legal consequences of a DUI in Seattle and elsewhere in Washington State are fully discussed elsewhere on our blog and within our firm website, recent research has revealed a medical risk that may occur when “time release” medicine is taken and alcohol is present in the stomach at some point during the “time release” phase. Science Daily reported on September 29, 2009, about a review of existing studies by author Hans Lennin in the September-October issue of ACS’ Molecular Pharmaceutics. The author draws the conclusion that alcohol in the stomach may, in some cases, cause “dose dumping,” where the medicine is released immediately, rather than over time. The conclusions and recommendations in the article are preliminary but the author calls for appropriate testing of time release drugs to determine whether “dose dumping” may occur in the presence of alcohol.

The implication for a Seattle DUI (or a DUI elsewhere in Washington State) is that an individual might take, for instance, a time-release pain medication that if properly dosed, would not impair driving. If that same individual had consumed a non-impairing amount of alcohol before taking the time release drug, and the alcohol caused the medication to “dose dump,” the individual might unwittingly become very impaired by the drug and find himself or herself charged with DUI due to alcohol, drugs, or both. The possibility of “dose dumping” is yet another reason to strictly heed all instructions regarding the use of prescribed drugs, including warnings about not consuming alcohol while taking the drug. This is the safest way to avoid a Seattle DUI arrest.

Our law firm has vast experience defending DUI charges throughout Washington State and in the Seattle metropolitan area. We are very experienced Washington drug DUI attorneys, so please contact us for a free consultation about your arrest.


Will A DUI Mean I Cannot Be A Nurse?

Registered Nurse DUIIn 2006 the legislature directed the Department of Health (DOH) to adopt rules about mandatory reporting of health care practitioners who commit unprofessional conduct, or unable to practice safely. Part of this new regulatory scheme is the requirement to self-report even if there has been no criminal conviction as the new rules require disclosure of pending actions triggered by an arrest. A DUI arrest falls into this rule of disclosure.

The DOH adopted these rules on March 31, 2008 and they cover all practitioners that are regulated under the umbrella of the department secretary, a board, or a commission. Nurses fall under this criteria and the rules can be found in WAC 246-16. Subsequently, in 2008 the WAC was amended the section pertaining to Mandatory Reporting of conduct and it is this change that requires the disclosure of charges and arrests.

While I encourage all inquires to be directed directly to Washington State Department of Health, 30 Israel RD SE, Olympia WA, 98501-7860, or call 360-236-4700, there is some information that can help a nurse rest a little easier. Any active nurse, or student nurse enrolled in a program dedicated to achieving nursing licensing, should know that a single DUI conviction is not a bar to licensing. Upon my consulting with the Nursing department licensing specialist the department has a somewhat humanistic approach to licensing and recognizes that one mistake in the form of a criminal charge or conviction for DUI does not accurately reflect the applicant, nor does it define their ability to practice health care. While they appreciate the fact that many DUI charges ultimately result in lesser charges, the applicant MUST disclose the original DUI charge as well as the ultimate result stemming from the charge. Any period probation, also does not bar an applicant. The disclosure of charge and final result is necessary to assess the applicants honesty, which is a criteria for licensing, so omitting the original charge and only disclosing the end result will do more harm than good.

While a single DUI charge is unlikely to have a detrimental licensing consequences, multiple charges will almost certainly bar licensing but the time between the charges is a factor worthy of much consideration. The closer the two charges are in time, the more likely the licensing department is to find that that applicant likely is a substance (alcohol) abuser, or perhaps dependent and given the fact that nurses judgment must be sound, as well as their access to potent medications, a practicing nurse, or potential nurse applicant will need to demonstrate that they do pose no danger. Obviously, someone who abuses, or is dependent upon addictive substances will have more difficulty overcoming this hurdle than someone who has only been arrested 1 time in their life.

Consequently, a single DUI conviction, or conviction for a lesser charge is unlikely to act a bar to either the admission to the Nursing field, nor is it likely to terminate an active nurse. However, since every case is different, readers are encouraged to use the address and phone number given above as well as visit the Nursing Commission


Barred From Canada For DUI

Having a DUI charge pending, or a DUI reduction, or conviction on your record will get you banned from visiting Canada, where drunken driving is treated as the most serious type of offense (Indictable Offence ).  This is the equivalent to a felony, and you’ll have to wait at least five years from the date probation terminated, and then complete lengthy paperwork to be considered rehabilitated and admissible to the Country.

There is no guess work about it, if the immigration officer in the at Canada Customs becomes aware of your prior DUI, pending DUI, or DUI reduced to something else, you will almost certainly be turned away and told not to return until the matter is resolved not only in your home state but with Canada Immigration. With the upcoming Olympics fast approaching and the games worldwide attention drawing more than 250,000 visitors to the Province, some wonder if the strict policy is worth it. In the meantime, if you are planning on attending the games in person and you have a criminal conviction for DUI, or even a pending charge now, even if it is resolved before the games you will likely be inadmissible.

These types of immigration consequences are what are called “collateral” consequences. Being aware of them before it is too late, and dealing with a DUI charge with an eye towards minimizing these types of issues is what a highly trained DUI lawyer can offer. At Fox Bowman Duarte, we have such lawyers who are often called upon to teach other lawyers how to competently deal with these issues.  We also maintain important contacts to Canadian immigration lawyers who will be necessary in many cases to close the case on Canadian admission stemming from a DUI charge.  If you are someone you know is facing a DUI charge, or recently resolved a DUI charge and seeking a visit to Canada for business or the upcoming games it is important to seek legal counsel trained to deal with these unique and complex issues.


Seattle DUI – Why is a DUI trooper at my door?

As discussed in a previous blog, in 2009 the Washington State Patrol instituted a pilot “Ignition Interlock Compliance Program.” As part of that program, Washington State Patrol troopers are knocking on the doors of drivers who, after a Washington State DUI arrest or conviction, are required to have an ignition interlock device installed in their personal vehicles. The vast majority of drivers arrested for DUI have great anxiety about the prospect of damage to career and reputation that can be caused by public knowledge of the DUI arrest. For most folks, there is very little risk that they will be in the position of being arrested for DUI again after having once gone through the humiliating and frightening process. They just want to resolve the matter and quietly move on. “Quietly moving on” will now likely be interrupted by a personal visit to one’s residence by a uniformed Washington State Patrol officer in a marked police vehicle, in full view of the neighbors. Legal issues exist in this scenario: Is there legal authority for WSP to arrive on the doorstep demanding proof of compliance with the DUI ignition interlock laws? Is a citizen required to open his/her garage and let the officer in to examine the vehicle?  Below is the text of the law that established the WSP DUI pilot Ignition Interlock Compliance Program.

RCW 46.20.745

Ignition interlock device revolving account program — Pilot program. 

(1) The ignition interlock device revolving account program is created within the department to assist in covering the monetary costs of installing, removing, and leasing an ignition interlock device, and applicable licensing, for indigent persons who are required under *RCW 46.20.385 and 46.61.5055 to install an ignition interlock device in all vehicles owned or operated by the person. For purposes of this subsection, “indigent” has the same meaning as in RCW 10.101.010, as determined by the department.

     (2) A pilot program is created within the ignition interlock device revolving account program for the purpose of monitoring compliance by persons required to use ignition interlock devices and by ignition interlock companies and vendors.

     (3) The department, the state patrol, and the Washington traffic safety commission shall coordinate to establish a compliance pilot program that will target at least one county from eastern Washington and one county from western Washington, as determined by the department, state patrol, and Washington traffic safety commission.

     (4) At a minimum, the compliance pilot program shall:

     (a) Review the number of ignition interlock devices that are required to be installed in the targeted county and the number of ignition interlock devices actually installed;

     (b) Work to identify those persons who are not complying with ignition interlock requirements or are repeatedly violating ignition interlock requirements; and

     (c) Identify ways to track compliance and reduce noncompliance.

     (5) As part of monitoring compliance, the Washington traffic safety commission shall also track recidivism for violations of RCW 46.61.502 and 46.61.504 by persons required to have an ignition interlock driver’s license under *RCW 46.20.385.


Alcohol Detecting Ankle Bracelet gets Judicial approval in South Dakota DUI Case

A SCRAM device is an electronic ankle bracelet that is designed to detect whether a person has been drinking alcohol by measuring alcohol through the person’s skin. This is called a measurement of transdermal alcohol concentration. SCRAM is short for Secure Continuous Remote Alcohol Monitoring.  In Washington State, some judges require a person accused of DUI to wear a SCRAM bracelet pending trial of the DUI case. Use of the SCRAM device in DUI cases is controversial and the technology has not met with universal judicial acceptance. No appellate court has ruled upon the scientific acceptability of the SCRAM device in a case involving a Washington State DUI arrest, however, the device recently received judicial approval from the Supreme Court of the State of South Dakota in the DUI case of State v. Lemler, a DUI opinion filed on September 16, 2009. Although the South Dakota Supreme Court’s ruling binds that state, attorneys representing persons arrested for DUI in Washington State remain free to challenge whether the SCRAM device has met with enough “scientific acceptance” to warrant across the board approval of SCRAM use when appropriate in a DUI charge arising from a Washington State DUI arrest.

The attorneys at Fox Bowman Duarte are familiar with SCRAM technology and the issues raised by SCRAM arising from a Washington State DUI arrest.