Jon Fox Speaks at the Judicial DUI Forum

Jon Scott Fox and Fox Bowman Duarte partner Bill Bowman recently shared the podium for a presentation to judges at the 2009 Judicial DUI Forum in Lynnwood, Washington. The event is sponsored by the District and Municipal Court Judges Association and provides a forum for the discussion of current issues in DUI defense and prosecution. The presentation concerned field sobriety testing and the issues discussed included the proper administration of the tests, the position of the National Highway Traffic Administration regarding field tests, the weight to be given to field tests if admitted, and whether the evidential use of the horizontal gaze nystagmus test should be judicially limited. Mr. Fox and Mr. Bowman were the only representatives of the criminal defense DUI bar at this forum. Jon and Fox Bowman Duarte partner Diego Vargas will be speaking to local judges at the 2009 Judicial DUI Forum in Kennewick later this month.

Seattle DUI – what does quartz have to do with my breath test?

After a Seattle DUI arrest or an arrest for DUI anywhere in Washington state, the citizen who has been arrested for DUI will be asked to take a breath test.  As of the date of this blog, the DataMaster breath testing machine (in two variations) is the only device approved for DUI evidential use.  It operates by using infrared spectroscopy to analyze the breath of a DUI suspect.  One of the issues that exists when an electro-mechanical device is used to produce forensic evidence in a DUI case is whether the machine is properly calibrated.  The calibration process for the DUI breath test machine in our state involves running “simulator solutions” through the machine at various concentration levels and checking the electronics.  However, there is always a question about how the machine is operating in the field.  Therefore, as part of the calibration process, the DUI DataMaster takes a reading of a “quartz plate” that is designed to absorb a given amount of infrared light. Because the DataMaster ultimately produces an alcohol reading on a DUI suspect by comparing the intensity of infrared light in a breath chamber before and after an individual blows into it, the idea is that if the machine is consistently producing the same reading in the field on the quartz plate, it is accurate within a certain range of error. That’s what quartz has to do with a breath test.   The long and short of it is that despite many attempts to ensure the accuracy of infrared spectroscopy to produce evidential DUI breath test results, there remain a number of problems.  As with other areas of Washington State DUI law, the technical side of defending a Seattle DUI is quite complex and requires in-depth knowledge of the technology used by DUI squad police in making DUI arrests and by prosecutors in prosecuting DUI cases.

Seattle DUI – Refuse a Breath Test at your Peril

Our Implied Consent Law states that an individual under arrest for a misdemeanor DUI in Washington state has the “right” to refuse to submit to a breath test. Most citizens know this, and, on average, probably less than 20% of those arrested for DUI in Seattle or elsewhere in Washington State refuse to take the breath test. There are a number of reasons why an individual might refuse to submit to a breath test, however,  including the advice of counsel or a fear that the breath test machine is not accurate.  Those who refuse to breath test might be calculating that they will pay a price for refusing to provide evidence to the state (loss of license for at least one year) but that on the other hand, the prosecution will not have a sample of breath to use at trial.  The decision by the Washington State Supreme Court in the DUI case of City of Seattle v. St. John (No.  81992-1) was issued today and this case changes entirely the calculation regarding refusing to submit to a breath test.  In this case, the Supreme Court held that there is no constitutional or statutory authority preventing the police from obtaining a search warrant for the blood of a driver who has refused to breath test.  Once a search warrant has been obtained, the individual has no right to refuse to submit to the blood test.  Therefore, an individual who does refuse to submit to a breath test at the police station is partially correct in his calculation: the Department of Licensing will administratively revoke the license for at least one year.  However, the prosecution likely will not be deprived of any evidence because the police officer is perfectly entitled to obtain a search warrant for the blood of the individual under these circumstances, according to the Supreme Court’s opinion. This will leave the prosecution free at the DUI trial to argue that the individual showed “consciousness of guilt” by refusing to submit to the the breath test, and the results of the blood test will also be admitted into evidence and argued to the jury. Therefore, it is difficult to conceive of circumstances where an individual under arrest for a misdemeanor DUI would be better off refusing to submit to the breath test if the DUI police officer is going to obtain a sample of the blood via a search warrant in any event.

They are still remain a number of issues regarding the admissibility of a driver’s refusal to submit to a DUI breath test and also regarding the admissibility of any subsequent DUI blood test. Our firm has more combined experience defending Seattle DUI cases and cases throughout Washington State than any other DUI defense firm in Washington State.

Forced blood from DUI arrestee results in lawsuit.

WLWT-TV reports that a Lawrenceburg, Indiana man has filed a lawsuit against the police asserting that police forcibly drew blood and urine from his body during a drunk driving arrest. According to the report, a 53-year-old man was arrested on suspicion of drunk driving and although a breath test showed that he was under the legal limit, the arresting officer doubted the findings.  He then obtained a search warrant authorizing the forcible taking of blood. A catheter was inserted against the driver’s will while the driver was shackled to a gurney, according to the report.  The blood test later showed that the drivers blood alcohol level was not over Indiana’s legal limit.

Could this happen in a Washington state DUI arrest? The answer is yes.  The Seattle police DUI squad has already obtained search warrants authorizing the taking of a driver’s blood in cases where the DUI arrestee has refused to submit to a breath test.  Apparently, a DUI Municipal Court Judge is always available by telephone to consider such DUI blood warrants and a Seattle DUI police officer can thus obtain a telephonic warrant to take the blood of a driver arrested for DUI in Seattle even in the middle of the night.  The same statutory authority used by the Seattle DUI squad exists is available to other Washington state DUI police agencies who could choose to utilize this procedure but currently, the forcible taking of blood pursuant to a search for it has only been seen in the cases of persons arrested for DUI in Seattle who have refused to submit to a breath test.  The forcible taking of blood is at odds with Washington’s DUI Implied Consent Law, which grants the right to every Washington State DUI arrestee to refuse to submit to a breath test when arrested for a misdemeanor DUI charge. The statute does not inform the DUI arrestee that if he refuses to take a breath test, a search for it could be obtained that would authorize the forcible taking of blood.  The entire controversy is currently awaiting a decision by the Washington State Supreme Court.

The law firm Fox Bowman Duarte has a twenty-four hour line available to advise drivers who are facing critical decisions upon a DUI arrest.

No Driver’s License if alcoholic?

The State of Washington emphasizes alcohol treatment when necessary in connection with a Washington state or Seattle DUI arrest or conviction.  However, it is not well known that even in the absence of a DUI conviction or a DUI arrest, the DOL will not issue a license to an individual who has been classified as an alcoholic or an alcohol abuser. Here is the text from the relevant statute:

RCW 46.20.031


The department shall not issue a driver’s license to a person:

     (1) Who is under the age of sixteen years;

     (2) Whose driving privilege has been withheld unless and until the department may authorize the driving privilege under RCW 46.20.311;

     (3) Who has been classified as an alcoholic, drug addict, alcohol abuser, or drug abuser by a program approved by the department of social and health services. The department may, however, issue a license if the person:

     (a) Has been granted a deferred prosecution under chapter 10.05 RCW; or

     (b) Is satisfactorily participating in or has successfully completed an alcohol or drug abuse treatment program approved by the department of social and health services and has established control of his or her alcohol or drug abuse problem;

As the law states, the DOL will issue a license to such a driver who is alcoholic or an alcohol abuser, however, if they are in compliance with a treatment program.The rationale is, of course, public safety. Licensing issues before or after a DUI arrest in Seattle or Washington State are very complex. In our firm, attorney Diana Lundin is our in house source for the latest information regarding DOL implications of a Seattle or Washington state DUI, as her practice is focused upon DOL issues.

DUI Alcohol Evaluation – List of Approved Agencies

If you have been arrested for a Seattle DUI or a DUI elsewhere in Washington State, at some point in the process your DUI lawyer will very likely suggest that you get an alcohol evaluation. This is important to the case because the results of the evaluation can influence the DUI sentence the judge will impose if there is a DUI conviction. Most people don’t know where to get a DUI alcohol evaluation. For court use, the agency must be state-certified. There are numerous DUI alcohol evaluation agencies in the Seattle area and throughout Washington State that will provide an alcohol evaluation. The state publishes a list of all the agencies, by location, online at the DSHS website.

DUI probation violation = 30 days jail?

A Washington state DUI conviction carries with it a maximum of five years probation. Most DUI judges, whether in Seattle or elsewhere in Washington, actually do impose five years of DUI probation. Judges have the option of imposing less probation, but rarely will a judge impose less than two years probation on a DUI conviction. “Conditions of probation” are imposed. For a Seattle or Washington state DUI, these conditions can include, for example,  total abstinence from alcohol and attendance at alcohol treatment. However, Washington state DUI law sets forth certain mandatory conditions of probation that the judge must impose in every case. These conditions are set forth in Washington’s DUI sentencing law, RCW 46.61.5055, which reads in relevant part as follows:

“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.”

Washington state’s DUI sentencing law also sets forth the penalty to be imposed upon a violation of these mandatory conditions of probation:

“(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.

(c) For each incident involving a violation of a mandatory condition of probation imposed under this subsection, the license, permit, or privilege to drive of the person shall be suspended by the court for thirty days or, if such license, permit, or privilege to drive already is suspended, revoked, or denied at the time the finding of probation violation is made, the suspension, revocation, or denial then in effect shall be extended by thirty days. The court shall notify the department of any suspension, revocation, or denial or any extension of a suspension, revocation, or denial imposed under this subsection.”

 Thus, each violation of the mandatory condition of probation results in thirty days of confinement and an additional thirty days of license suspension. Our firm, Fox Bowman Duarte, has successfully argued that the use of the term “confinement” in this part of the statute when the term “imprisonment” is used elsewhere in the DUI sentencing law means that the court has the option of imposing Electronic Home Monitoring rather than jail in the case of a violation of  a mandatory condition of DUI probation. However, for this argument to have the best chance to succeed, it is necessary to take certain steps that will impress the judge that jail is not necessary and that Electronic Home Monitoring is appropriate.

Drunk driving across state lines = Two DUIs

The Washington State Supreme Court issued an opinion on August 20, 2009,  regarding a driver who drove drunk from Washington State into Oregon and was convicted of DUI in both states based upon this single act of driving. (State v. Rivera-Santos, 81445-7.) The driver  was arrested in Oregon after driving south from Washington state over the interstate bridge. He took a DUI breath test with a reading of .17 and was convicted first in an Oregon court of DUI. Later, he was prosecuted and convicted of DUI in Washington State. The driver appealed, asserting that Double Jeopardy prevented him from being prosecuted for DUI in Washington State when he had already been prosecuted for DUI arising out of the same facts in Oregon. The Washington State Supreme Court rejected the appeal and affirmed the conviction, finding that the Oregon DUI conviction did not bar the subsequent Washington State DUI prosecution.

In this case there was one continuous act of DUI driving that occurred in two separate states and that resulted in two DUI convictions. Of interest is that under Washington’s DUI sentencing scheme, the Oregon DUI conviction that was on the record at the time the driver was convicted of DUI in Washington State would have caused the Washington State DUI to be deemed a “second offense,” subjecting the driver to a mandatory minimum of 45 days in jail based upon a .17 breath test reading. The Washington DUI sentencing statute states in part that a a prior DUI conviction includes an out of state conviction that would be the equivalent of a Washington State DUI.

“Hard” license suspension for Seattle DUI?

A “hard” license suspension is a license suspension for which there is no driving of any sort allowed.  By way of background, under the 2009 amendments to Washington state’s DUI laws, a driver whose license is suspended for an alcohol-based DUI arrest or conviction may apply for an ignition interlock license.  This license permits the individual to drive during the period of suspension so long as there is an ignition interlock device installed in the vehicle being driven, and other conditions are met.  However, a strange quirk in the amendments to Washington state’s DUI law that became effective January 1, 2009, exclude from eligibility for an ignition interlock license those persons convicted of DUI where the allegation is that the individual drove under the influence of drugs, not alcohol.  Upon a first conviction for a drug/DUI, a minimum 90 day license suspension is imposed.  “Drug/DUI” cases are not included as candidates for an ignition interlock under RCW 46.20.385 or RCW 46.20.720. The law also excludes such persons from obtaining and “occupational license.” In Seattle DUI cases and elsewhere in Washington state, more and more people are being arrested for DUI where the allegation is that they drove under the influence of drugs, not alcohol.  Typically, an officer called a “drug recognition expert”  (DRE) processes this type of arrest. There are a number of DRE qualified DUI officers on the Seattle Police Department and also in the Washington State Patrol. 

It is hoped that the disparity in the law excluding those arrested for DUI/drugs from eligibility for an ignition interlock or occupational licenses will be addressed during the next legislative session.

Failing a DUI Field Sobriety Test but not drunk

One of the “standardized” field sobriety tests routinely given in a Seattle DUI arrest is the “eye test” otherwise known as the test for Horizontal Gaze Nystagmus. In this test, the DUI arresting officer looks for “bouncing” or “jerking” of the eyes as they follow a stimulus, usually a finger or a pen. If the bouncing begins at a forty-five degree angle or earlier, the police say there is a strong likelihood that the driver is legally drunk. This test is administered throughout Washington State in DUI investigations and relied upon by DUI officers in making arrest decisions, but these officers are not eye doctors and the literature has revealed a staggering number of other causes for nystagmus. What follows is a list of other possible causes of nystagmus: 

(1) problems with the inner ear laby­rinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arterioscle­rosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff’s syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbitu­rates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunc­tion; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use.

However, the list continues to grow of causes of nystagmus that do not include alcohol. One physician believes that mineral deficiency can cause nystagmus.

Nystagmus remains a controversial item of evidence in Washington State DUI cases. A competent DUI attorney practicing in any court the Seattle area or within Washington State should be familiar with the challenges that may exist to the use of Horizontal Gaze Nystagmus in as an attorney defending a DUI charge.