What Were You Told About the DUI Breath Test?

Believe it or not, under Washington’s Implied Consent Law you have already consented to the breath test if you drive a car in this state. Simply put, the Implied Consent law says: “Take the breath test or you will lose your license.” Washington’s Implied Consent Law simply says: “If you take the test and blow over the legal limit, you will lose your license.” The consequences for refusing the test or taking it and flunking are different but under either scenario the DOL will seek to automatically revoke or suspend your license independent of the DUI court case. Generally, a person with no prior DUI arrests who refuses to take the test will almost certainly suffer harsher licensing consequences. Suspension/Revocation after flunking the breath test or refusing happens automatically at the hands of the DOL. The only way to have a chance to fight automatic suspension of the driver’s license is to timely send to the DOL (with the $375 fee unless you are indigent,) a request for an administrative hearing. If you took or refused a breath test, the request for an administrative hearing must be sent to the Department of licensing within 7 days after arrest.

Many people mistakenly think that they have satisfied their obligation to blow into a breath test machine by blowing into the portable breath test machine (PBT) which is commonly given by the police officer at the scene of the traffic stop. That is a grave error. The Implied Consent Law is satisfied only if you blow into the “official and approved” Draeger breath test machine which is located at a police station. It does NOT apply to the portable breath test commonly given at the scene of the stop. Refusing to submit to the portable breath test machine will not impact your driver’s license; refusing to submit to the official, evidential breath test at the police station results in serious licensing consequences and may adversely impact the defense of the DUI charge. The Implied Consent “warnings” given at the police station before the Draeger breath test do not explain the differences between the portable breath test and the "official" breathalyzer at the police station as they relate to the Implied Consent law. Many people have lost their licenses because they did not understand this critical distinction.

Because the decision to take or refuse the breath test has serious consequences, the law provides that you must be officially “reminded” of the consequences of your decision. The officer reads a form and you are then asked to make your decision regarding the test.

The form is difficult to understand, especially if you are hearing it for the first time. Keep in mind that at the time the officer is reading it, you have been arrested, handcuffed and taken to jail, probably for the first time in your life. For most people, the shock of the arrest makes it very difficult to appreciate the fine legal distinctions presented by the Implied Consent Warning. It is no surprise that many people under arrest for DUI exercise the right to call an attorney for advice before making any decision regarding the breath test.

The Implied Consent Warning form does not tell you several important facts: If you refuse the test, you will probably be prosecuted anyway and your refusal to take the test will likely be a cornerstone of the prosecutor’s case. Also, if you refuse the test your license will be suspended/revoked and you will have to file proof of financial responsibility (otherwise known as “high risk” insurance) with the DOL, the same as if you had been convicted of DUI. Further, a person who refuses the breath test  can still be required to submit  to a blood test  because many officers will  apply for a search warrant for the blood  if the driver refuses the breath test.

Any person facing the decision to take or refuse the breath test should call an attorney immediately to discuss the consequences of that decision in connection with the specific facts of the case. Police agencies in most jurisdictions have a list of attorneys who are available for consultation by phone even in the middle of the night.

Generally speaking, for drivers with no prior arrests, refusing the breath test brings about harsher consequences than taking the test and flunking it. If a person with no prior dui arrests takes the tests with a result of .08 or higher, the Department of Licensing will suspend the driver’s license for a minimum of 90 days administratively (before trial) and for an additional 90 days (minimum) if convicted of the DUI. The driver may apply for an ignition interlock license which, if processed in a timely manner, can result in there being no interruption in the privilege to drive. There is a catch, however: the ignition interlock license only permits a driver to drive a vehicle that is equipped with an ignition interlock. There are no restrictions as to time or place that the vehicle may be driven, but the individual will be required to blow into the ignition interlock device in order to start the car and periodically while driving.  The law now is a complex matrix of decisions and consequences, and an early  consultation with an experienced DUI defense attorney  is a smart move.

If a person under arrest with no prior DUI convictions and no prior (within seven years) DOL administrative actions takes a breath test with a result near or above the legal limit, which is .08 in Washington, the chances of being convicted are usually increased. If the test result is .08 or higher, the Department of Licensing will suspend the driver’s license for a minimum of 90 days administratively (before trial) and for an additional 90 days (minimum) if convicted of the DUI.

Refusing the breath test can make things more difficult in court. The fact of refusal is admissible in the drunk driving trial. In other words, the prosecutor can argue to the judge or jury that the reason the driver refused testing was because the defendant knew he or she was drunk and would fail the test. Additionally, a test refusal increases the fine and jail sentence of a person convicted of DUI as well as result in additional and longer license suspensions based on the conviction.  Moreover, a DUI decision issued by the Washington State Supreme Court  approved a DUI police procedure whereby a search warrant for the blood of a DUI suspect might be obtained by the police officer if the suspect has refused to submit to a breath test. The case, City of Seattle v. St. John, involved a Seattle DUI squad police officer who obtained a search warrant for the blood of Mr. St. John after Mr. St. John refused to take a breath test. The Supreme Court found no statutory or constitutional bar to a police officer obtaining a blood sample in this manner, even forcibly, pursuant to a search warrant. This means that a driver who refuses to submit to a breath test may find that he suffers the administrative penalty of license revocation at the hands of the Department of Licensing but also that the prosecution will still have an alcohol reading to present to the jury upon trial of the DUI charge.  Further, that same driver  need not have been told that if he refuses the breath test , a search warrant  could be obtained  and blood taken.

The driver is entitled to a hearing before the Department of Licensing to fight the suspension or revocation of the license if a request for a hearing is timely submitted to the Department of Licensing, along with the appropriate fee. Remember, it is critical to make a timely request for a DOL hearing in order to have a chance to save your license from automatic administrative suspension or revocation. Keep in mind, however, that an individual whose license is suspended/revoked by the Department of licensing may apply for an “ignition interlock license” which, depending upon the timing, can result in there being no interruption in the ability to drive so long as the personal vehicle being driven is equipped with an ignition interlock device.

The law regarding taking or refusing the breath test is one of the most complicated areas of DUI law. This short summary cannot substitute for legal advice from an experienced attorney. Any person who is asked to take a breath test by a law enforcement officer should ask to contact an attorney immediately.   In any event,  after a DUI arrest it is  always wise to  consult with an experienced  DUI attorney.

Can a Breath or Blood Test Be Challenged?

Can a breath test be challenged? Yes, but only if the defense attorney is intimately familiar with DUI laws, the physiology of breath testing, and the intricacies of the police procedures used in administering breath tests and maintaining the breath testing machines. I have been challenging breath testing for more than 30 years. It is critical for a defense lawyer to always be well informed about the technology that will be used in court as evidence against one charged with DUI. Yes, a breath test can be challenged.

Most people think that the breath and blood testing machines used by the state are automatically accurate, but this not always true. In analyzing your case, your defense attorney must investigate the test result to determine how it may be challenged in court. A breath or blood test must meet specific legal and scientific standards if it is to be considered reliable enough for use in court as evidence. If these standards are not met, the jury may disregard the test results or a judge may decide that the test results should be suppressed, that is, not be considered at all. These rules prevent innocent persons from being wrongfuly convicted by inaccurate evidence.

The law and science each provide valid challenges to DUI test results, and the lawyer defending a DUI case must be knowledgeable in both. Records may be subpoenaed which contain information about the breath test that is not always documented on the breath ticket given to the defendant after the breath test. These records may for the basis of a court challenge to the procedures used in administering the breath test, and thus the legality of the test itself.

A person under arrest for DUI must be “warned” of the consequences of taking or refusing the breath test. The procedures used to administer this Implied Consent Warning are critical since a significant deviation from a proper advisement means that the breath test should not be admitted into evidence. Also, a breath test must not be used in court unless the defendant was advised of the right to talk to a lawyer before being asked to take the test. There are many potential legal challenges to a breath test not listed here but which will be considered by a good DUI attorney when defending your case.

Even when the breath test is allowed into evidence, there are valid challenges to its accuracy which may be considered by the judge or jury. These are based upon test procedures and also inherent problems in the technology of the breath testing machine itself. The law permits the judge or jury to totally disregard breath or blood test results when not completely convinced that the results are accurate.

The law also gives you the right to get your own private test which may be used to challenge the breath or blood test you took while in police custody. In most cases this additional test will be a blood test taken at your own expense at a hospital emergency room. Since this is a good way to challenge the police test results, courts have ruled that the police cannot intentionally prevent you from obtaining your own independent test, should you choose to do so.

A breath test can be discredited by the live testimony of independant witness who can verify how much alcohol the you actually had to drink. Using well accepted scientific principles, your actual blood or breath alcohol may be calculated from the information the witnesses supply. A judge or jury is entitled to disregard the police breath or blood test results if the testimony of the defense witnesses is deemed credible.

A good defense attorney will know of experts in the field of breath testing and physiology who may be able to present persuasive testimony challenging the accuracy and reliability of the breath test. A good working relationship between the defense attorney and such experts can enhance the ability to challenge breath or blood tests in a meaningful and credible way in court.

We have discussed only a few of the many ways in which a breath or blood test may be challenged in court. Your first step should always be to consult with an experienced attorney to discuss the facts of any particular case.

Can I Get an Occupational License for Work?

If you are convicted of drunk driving your license will be suspended. The minimum suspension is 90 days, for a DUI with no priors first time offense where the breath test results were under .15. There is no “occupational license” available for a DUI conviction as this has been replaced by the “Ignition Interlock License” under recent changes to Washington state DUI laws. The ignition interlock license allows you to drive during the period of a license suspension for a DUI conviction so long as the vehicle you drive is equipped with an ignition interlock device (a breath test device attached to your car that prevents it from starting if alcohol is detected).

In addition, “SR22” insurance is required. There are no limitations on time or where you can drive in Washington State with an ignition interlock license but if you need to drive a company car, the ignition interlock requirement could be a problem as generally, employers don’t want to equip company cars with ignition interlock devices. The law has a limited answer for this problem — the “employer vehicle” exception. This exception is set forth in RCW 46.70.720(3)(b) which states:

The installation of an ignition interlock device is not necessary on vehicles owned, leased, or rented by a person's employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person's employer as a requirement of employment during working hours. The person must provide the department with a declaration pursuant to chapter 5.50 RCW from his or her employer stating that the person's employment requires the person to operate a vehicle owned by the employer or other persons during working hours.

(b) The employer exemption does not apply when the employer's vehicle is assigned exclusively to the restricted driver and used solely for commuting to and from employment.

A driver who is covered by the “employer vehicle” exception would drive his/her ignition interlock equipped vehicle to work, but would be permitted to drive a car owned by the employer during work hours, and the employer’s vehicle would not be required to be equipped with an ignition interlock device. This is good news but on the other hand, the law requires that the employer sign a declaration certifying that the employee does need to drive as a condition of employment, so in this circumstance there is no way to avoid notifying the employer of the DUI conviction.

Here are the forms you need when a DUI license suspension has occurred:

Questions: Call Jon Fox (425) 274-9190

How Do I Find A Good DUI Lawyer?

How Do I Find A Good DUI Lawyer? If you’ve been charged with DUI, finding a good DUI lawyer must be your first priority. It’s not easy. DUI attorney webpages are prolific, and every DUI attorney looks great on the internet. Be wary of attorneys who claim a “98% success rate” or “best dismissal rate” or other such puffery. You’ll need to trust your attorney. It’s important to choose wisely because today’s DUI laws are complicated and the punishment is life-changing. Look for an attorney who devotes his or her practice to DUI defense and who has a strong reputation for competence in the legal community. Just as with most professions, lawyers know who has the best reputation for handling specific types of cases, so the best referral source is usually a local attorney. If you don’t know any attorneys, another excellent source is anyone involved in law enforcement or the criminal justice system. It is also worthwhile to check online webpages that contain “reviews” from actual former clients of DUI defense attorneys. A good source to compare attorneys is www.AVVO.com. Be aware that attorneys pay for top placement in Google searches, so look beyond the advertisements that jump out at you when searching, and carefully compare attorney qualifications. Police officers, prosecutors, judges and court personnel all know who the best DUI lawyers are and can tell you who they would retain if they were charged. An actual referral from a living person is always more reliable than relying upon what you read online.

Another source is the local bar association referral service. However, be advised that the Bar does not screen candidates for its referral list, so you should be careful to verify the attorney’s credentials before making a hiring decision. Be sure to ask the lawyer what percentage of his or her practice is devoted to DUI defense. In addition, the lawyer should practice criminal law exclusively and should have a solid background of trying cases. Finally, ask the lawyer to describe his or her recent experience with DUI’s in particular. When meeting the attorney in person, consider several questions: Is the attorney well-versed on the subject of DUI’s and able to readily answer all your questions?  Does he or she seem genuinely interested in you, as well as your case? Does the attorney really listen to you and address you concerns? Before retaining the attorney, you should, above all, feel a strong sense of confidence in the attorney’s ability to handle your case. If you don’t, keep looking.

Take a close look at the attorney’s credentials, including number of years defending DUI cases, whether the attorney has published books or articles on DUIs, has taught other attorneys about DUI defense, and whether the attorney has support staff who are experienced and available. Always meet with the attorney in person so that you can form an impression of the attorney’s demeanor and whether the attorney’s office has support staff who can provide additional resources to the attorney in the defense of your case.

How much will an attorney cost? Just like anything else, you usually get what you pay for. Competent DUI defense lawyers may charge from $5,000 to $10,000 and up, depending on a variety of factors, including the attorney’s years of experience, the complexity of the case, client’s prior record, the court in which the charge is filed, the likelihood of a trial, etc. A good defense lawyer can usually save you more in the long run than he or she charges in legal fees. However, just as with any legal case, there can be no guarantees. Certainly, however, retaining the most competent lawyer you can find, an attorney in whose hands you can confidently leave your case, is the best formula to obtain a positive result and some peace of mind during the process.

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

What If I Have a Commercial License and Get a DUI?

The licensing consequences of DUI are particularly egregious for those who possess a commercial license and are stopped while driving a commercial vehicle. A commercial driver faces the possibility of being disqualified from driving a commercial vehicle both administratively by the Department of Licensing AND as the result of a criminal conviction of DUI.

When a law enforcement official determines that a commercial driver has ANY alcohol in his system while driving, the driver will immediately be issued an out of service order valid for twenty four hours which means the driver may not operate any commercial vehicle for a twenty four hour period. The officer may then require the driver to submit to a test of his breath to determine the alcohol content. If the driver has an alcohol concentration of .04 or more, or if the driver refuses to submit to a breath test, the officer will submit a sworn report indicating such to the DOL within 72 hours of the incident. Upon receipt of the sworn report by the DOL, the administrative process has begun and the DOL will automatically disqualify the driver from driving a commercial vehicle UNLESS the driver requests a hearing within 7 days of the incident.

If no hearing is requested or if it is established at the hearing that the driver had an alcohol concentration of .04 or more, or refused the breath test, the driver will be disqualified from driving a commercial vehicle. For a first violation, the driver will be disqualified for a period of not less than one year. For a second or subsequent violation, the driver will be disqualified for life.

Even if the commercial driver is successful at the Department of Licensing hearing and defeats the administrative disqualification he or she still faces disqualification if convicted of DUI in the criminal courts. 

Upon disqualification, whether through the administrative or criminal process, the commercial driver must notify his employer of the suspension by the end of the following business day. The employer is then prohibited from permitting the driver to operate a commercial vehicle during the disqualification period. Upon expiration of any disqualification of a year or more, the driver may again apply for his commercial license but must also requalify for the license before it is reissued.

Because the licensing consequences for a commercial driver suspected of DUI are quite complex and very severe, it is advisable to consult a qualified DUI defense attorney to fully protect your interests.

What Special Rules Apply If I Get a DUI Under 21?

In an effort to crack down on under-aged drinking drivers, the legislature has enacted a zero tolerance policy directed at that group.

If a driver is under age 21, and is stopped while driving under circumstances where an officer has reason to believe the driver has alcohol in his or her system, the driver can be arrested and asked, under threat of loss of license, to take a breath test. If the test shows an alcohol concentration of .02 or above, the driver can be charged with a crime that carries a maximum sentence of 90 days in jail and a $1,000 fine under RCW 46.61.503. Such a conviction will appear on the driving record which, for an under-aged driver, can result in serious insurance consequences, but no license suspension is imposed because of the conviction. As will be seen below, there is “administrative action” taken by the Department of Licensing independent of a court conviction for RCW 46.61.503 and this can result in license suspension and the requirement of SR22 insurance.

In the case of a minor driving after consuming alcohol, the arresting officer is required to notify the Department of Licensing when the test results are .02 or higher. Upon receipt of that information, the Department will suspend the under-aged driver’s license for 90 days. The driver is entitled to a hearing before the Department within 30 days of the date of arrest, but a hearing must be requested within 7 days of the arrest, and the request must be accompanied by a check for $375  (unless the driver can prove he is indigent.) At the hearing, a Hearing Examiner will determine whether there was a lawful arrest by an officer having reasonable grounds to believe the driver had alcohol in his or her system, whether or not the driver was informed of his or her rights under the implied consent law, whether the test was properly administered, and whether the test result was .02 or more. If the license suspension is sustained at the hearing, the driver’s license is suspended for 90 days the first time, or for one year or until the driver turns age 21 the second time, whichever is longer.

If the driver refuses testing, the license is revoked for one year the first time, longer if there is a refusal. In order to get the driver’s license reinstated, the driver must file Proof of Financial Responsibility (SR22 insurance), which for a young driver will almost certainly result in extreme increases in premiums.

A diver under age 21 offender can also be prosecuted for DUI, the same as an adult, if the breath test result is .08 or greater, or, if the prosecutor can prove the driver was impaired at the time of driving. All of the same penalties apply to a minor in this situation that would apply to an adult if convicted of the same DUI.

What Will Happen If I Am Found Guilty of DUI?

What Will Happen If I Am Found Guilty of DUI? The goal, of course, is to avoid a DUI conviction by asserting an effective defense. In the unhappy event that a DUI conviction occurs, Washington State DUI laws set forth a myriad of penalties. These are mainly set forth in RCW 46.61.5055. Unlike most other criminal charges, a conviction for DUI entails both maximum and mandatory minimum sentences. The specific penalty a judge might impose beyond the minimum penalty depends upon the facts of the case, the criminal record, and the presentation made by your DUI defense attorney at the time sentence is imposed and throughout the case. A person found guilty of even a first offense DUI in Washington faces jail, stiff fines, long periods of probation with many restrictions and conditions, electronic home detention, license suspensions and restrictions on the license, an alcohol evaluation and up to two years of alcohol treatment. Every phase of a DUI sentence costs money and the total cost of a conviction can be staggering. DUI is a misdemeanor, but the sentence and complications are more severe than some felony charges.

It is difficult to generalize about sentences, since every DUI case and every individual has unique facts, history and circumstances. The presentation made at the time sentence is imposed can make a difference and certainly, the skill and reputation of the DUI attorney representing the accused can positively impact the sentence. But even the mandatory minimum sentence for a first DUI conviction is an onerous punishment. Here is a typical “mandatory minimum” sentence for a first offense with a “low” (under .15%) breath test.

One year in jail is imposed, even on a first DUI offense with a “low” breath test. However, once it is imposed all but one day is usually “suspended” in a low breath test case pending successful completion of all the conditions of probation. This minimum sentence must be served as twenty-four hours of consecutive confinement in jail, which means that an individual who was booked into jail and bailed out after fifteen miserable hours in the slammer can receive no “set off” against the jail sentence to be served because the remaining seven hours of jail are not part of a 24 hour consecutive jail term. The judge has the power to require that the jail be served as electronic home detention and this might seem to be a desirable alternative in some circumstances. However, the law requires a fifteen-to-one conversion if the sentence is served on home detention. Thus, the one-day sentence the judge imposed turns into a fifteen-day sentence on home detention, with you paying a “rental” fee for the electronic equipment for each of those days. 

The imposition of actual jail is required subject to one narrowly construed exception under RCW 46.61.5055 (the DUI sentencing statute). The judge cannot suspend the imposition of jail “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.” The law does not specify what constitutes a “substantial risk” to the offender’s physical or mental well-being, but judges will grant this exception only if substantial evidence is presented on behalf of the accused.

If jail is required to be served, it is sometimes difficult to determine which jail facility will be used because some cities contract with other cities to provide jail facilities. For a DUI in King County or a DUI in Seattle, for instance, jail might be served in the King County Jail or at the Regional Justice Center Jail. However, a City of Seattle DUI jail sentence was once served in the served in the Yakima County Jail pursuant to contract (the Issaquah jail is used now). In the case of a Bellevue DUI, it is likely that jail would be served at the Issaquah Jail, which is under contract with Bellevue. For DUI cases in the City of Kirkland, the only option is the Kirkland Jail. For Snohomish County DUI cases, jail sentences are typically served in the Snohomish County Jail. 

Typically, a $5,000 fine is imposed with $4,650 “suspended,” plus costs and assessments. The court has the power to impose the balance of the fine if there are any violations of probationary conditions imposed. A “BAC” fee of $250 is also imposed. You pay this for taking the breath test. There are a number of other “taxes and assessments” on a DUI fine which add up quickly. The total typical fine imposed in a first offense “low breath test” case is nearly $1,000.00. But the fine is only the tip of the iceberg of costs and obligations for one convicted of DUI. Probation fees can be charged at up to $50.00 per month for a 60 month term of probation.

An ignition interlock is required for at least one year after reinstatement of the license. During that year, a driver is restricted to driving a car that has a state-approved breath testing device installed which prevents the car from starting if you have alcohol on your breath beyond a set tolerance level. There is an exception to ignition interlock requirement for vehicles owned by an employer and driven as a condition of employment. That exception allows you to drive an employer-owned vehicle during work hours, on work business, without an interlock. However, an interlock on your personal car is still required.

An alcohol evaluation is required upon conviction. The results of the evaluation dictate whether alcohol education classes or alcohol treatment must be completed. On the lowest end of the scale, a minimum of an eight-hour “alcohol information school” and one session of the “DUI Victim’s Panel” are required. On the higher end of the scale, up to two years of intensive alcohol treatment at a state approved alcohol agency is required. The two year program consists of three “phases” of varying intensity, with the first “intensive” phase typically including four lengthy group meetings on a weekly basis. In addition, weekly AA (Alcoholics Anonymous or other self-help support group) meetings are required as part of the entire two year program. Whatever treatment/classes are imposed, the accused bears the cost, which can amount to many thousands of dollars for extensive or long term treatment. The court has the power to impose the balance of the “suspended” jail mentioned above if the treatment is not completed as required.

A license suspension of at least 90 days must be imposed, and this is separate from the license suspension imposed “administratively” at the hands of the Department of Licensing. However, if you previously served the 90 day suspension, the law provides that you will get “credit for time served” on the new suspension. The requirement of filing “proof of financial responsibility” for three years with the Department of Licensing is imposed, and for most people this translates into a huge financial burden in the form of “high risk” insurance. Driving is allowed during the period of suspension only if the driver has an ignition interlock license and is driving a car with an ignition interlock device installed, subject only to the “employer’s car” exception discussed above.

Up to five years of probation may be imposed, with the judge deciding whether it will be “formal” probation where you regularly report to a probation officer, or “informal” probation, where the court periodically checks your court file and record to determine compliance with the many conditions of probation. Many different types of probationary restrictions may be imposed and the court has the power to impose the balance of the “suspended” jail and fine upon a probation violation. There are certain probation violations which require the judge to impose a mandatory minimum of thirty days of additional confinement, and an additional thirty day license suspension. These are set forth in RCW 46.61.5055 (11) as follows:

(11) Conditions of probation. 

(a) In addition to any nonsuspendable and nondeferrable jail sentence required by this section, whenever the court imposes up to three hundred sixty-four days 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; (ii) not driving a motor vehicle within this state without proof of liability insurance or other financial responsibility for the future pursuant to RCW 46.30.020; (iii) not driving or being in physical control of a motor vehicle within this state while having an alcohol concentration of 0.08 or more or a THC concentration of 5.00 nanograms per milliliter of whole blood or higher, within two hours after driving; (iv) not refusing to submit to a test of his or her breath or blood to determine alcohol or drug 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 or drug; and (v) not driving a motor vehicle in this state without a functioning ignition interlock device as required by the department under RCW 46.20.720. 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), (iii), (iv), or (v) 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.

The consequences listed here are a summary of the “minimum” consequences which will be imposed in a first offense “low breath test” case. However, the penalties go up from these minimums depending upon the defendant’s record and the facts of the case. For instance, for a second offense, at least 30 days jail and a two-year license revocation are imposed on conviction, and Federal law has a restriction pursuant to the Interstate Compact on Adult Offender Supervision upon moving out of state without prior permission from the Department of Corrections and a transfer of probation. If the driver previously was required by DOL to have an ignition interlock, then the ignition interlock requirement will be imposed for at least five years.

There is never any guarantee that a judge will impose the minimum sentence and upon a DUI conviction the judge has the power to impose up to the maximum sentence and not even state a reason for doing so. However, the reality is that most judges will impose no more than the mandatory minimum if the case is properly presented and there are no “aggravating factors.” A competent DUI attorney will always be familiar with the sentencing practices of the judge who is presiding over the matter and will know how best to present the case to that judge. Effective representation at every stage of the case will enhance the opportunity to minimize the legal consequences if a DUI conviction occurs.

What’s Involved In a DUI Deferred Prosecution?

Many years ago, the Washington legislature recognized that some people get in trouble with the law not because they’re criminals, but rather because of alcoholism or drug addiction or in some cases, mental health issues. As a result, it passed the Deferred Prosecution statute designed to emphasize treatment more than punishment. Thus, if you are charged with a DUI and have such issues, you have the option of asking the court to defer formal prosecution of the case while you seek treatment at a state-certified treatment agency. Deferred prosecution is a demanding program requiring absolute abstinence from alcohol and non-prescribed drugs and adherence to the program requirements. In return, you do not suffer the usual consequences of a DUI conviction such as fines, jail, and loss of license.

However, there are some potential consequences which should be thoroughly discussed with your attorney before deciding to petition for deferred prosecution. It is not an easy road to take, but in the right case it is an excellent resolution of a DUI case that also results in improvement in the live of the accused. The law states that you may be granted only one deferred prosecution in a lifetime, so it important to carefully consider this decision.

All state-certified treatment agencies are required to follow essentially the same treatment program, so there is no such thing as finding an easy-versus-hard program. The alcohol treatment program itself is divided into three phases: the Intensive Phase, the Follow-up Phase and the Monitoring Phase.

The Intensive Phase is just that, requiring either inpatient hospitalization or outpatient treatment involving almost daily contact with the agency for three or four hours at a time for four to six weeks. The program involves in-depth individual and group counseling, education, self-help support meetings, lifestyle changes, etc.

The Follow-up Phase lessens the time demands, but still requires strict sobriety and complete compliance with the treatment requirements. During Follow-up, you are required to attend at least two self-help support meetings per week and meet with a counselor once a week. In addition, you are required to submit to random urine or breath tests throughout the two year program upon the request of either by your counselor or probation officer.

Once phase two is completed, you move into the Monitoring Phase. During these last 16 or 17 months, you must still attend at least two self-help support meetings per week and meet with your alcohol counselor at least once a month. In addition, you may be required to meet regularly with your probation officer to confirm your compliance.

Upon successful completion of the treatment program, the treatment agency sends a discharge summary to the court, the probation department and your lawyer. Even after completing the two year treatment program, you must still wait an additional three years before the case may be dismissed. The court may elect to continue your probation for the additional three years while imposing such conditions (continued self-help support meetings,, for instance) as are deemed appropriate. Three years after completion of treatment, you will have earned the right to a formal dismissal of the charge.

Deferred prosecution has many positive aspects, but is it important to consider several points. First, you are only eligible if you agree that you have significant substance use issues or are suffering from mental problems, that you are in need of treatment, and unless treated the probability of future recurrence is great. Secondly, the court requires you to give up substantial rights in return for the deferral, including the right to trial and to contest the charges should any violation of the program occur during the five year period of deferral of the DUI charge. In other words, you likely will proceed directly to sentencing on the DUI charge if the court revokes the deferred prosecution after finding noncompliance.

Third, strict compliance with the treatment plan’s terms is required, including total abstinence, random urinalysis or breath tests and attendance at all required meetings. In addition, costs of the program can be substantial; an outpatient treatment program can cost up to $6,500. Most group health insurance policies cover the bulk of the costs at approved treatment agencies, but some policies do not.

Fourth, even a successfully completed deferred prosecution, where the charge was dismissed, can be treated as a prior conviction. If you are subsequently convicted of another DUI where the second arrest occurred within seven years of the first arrest. The second case is a "second offense" even though the first case was dismissed on completion of the deferred prosecution program.

The deferred prosecution option has some major advantages in the right case, but it should be pursued only after very careful deliberation with the assistance of an experienced Washington State DUI attorney. In your writer’s experience, the deferred prosecution program can an excellent option when used appropriately, but it is a recipe for disaster if taken without consideration of all the rigorous requirements and the consequences that follow if the DUI deferred prosecution is not successfully completed.

Will I Have To Go To Trial?

Most criminal cases do not go to trial. The same is true of DUI cases. While the likelihood of a DUI case going to trial is certainly affected by how strong or weak the prosecutor’s case is, probably the single most important factor is how skilled the defense lawyer is in challenging the government’s case before trial through a process called pretrial litigation.

Pretrial litigation involves raising legal challenges to the prosecutor’s evidence and the validity of the procedures used to secure that evidence. The issues to be raised may include questions of the legality of the initial stop of the vehicle, whether there was probable cause to make an arrest, whether the defendant was fully and properly advised of all of his or her rights, whether the breath or blood test was properly administered, and a number of other issues that may arise in particular cases.

The goal of raising pretrial litigation is to limit or exclude damaging evidence that may have been improperly obtained by the police officer so that the prosecutor becomes willing to engage in plea bargaining. Plea bargaining is a process whereby the prosecutor agrees to allow a defendant to plead guilty to a lesser charge, one that does not involve all of the severe consequences resulting from a drunk driving conviction. An advantageous plea bargain could be one that results in avoiding a jail sentence, or license suspension, or both.

Factors that affect plea bargaining include the skill or reputation of the defense lawyer, the official policies of a prosecutor’s office, the extent of overcrowding in the individual court, the record of the accused, and the results of an alcohol evaluation.

When a prosecutor offers an amendment to a reduced charge, the defense must consider whether this disposition serves the important goals of the client which have guided the case from day one. In some cases a plea bargain will be rejected by the defense because the benefits of the reduced plea are not significant enough to outweigh the risks of a conviction at trial. Ultimately, whether a case goes to trial or not is determined by a prosecutor’s frank assessment of his or her chances of winning the case at trial, factoring in the facts of the case as well as the opposition, and the willingness of the defense lawyer to try the case if a plea bargain is not forthcoming.

A competent DUI defense attorney will insure that every opportunity has been maximized in an effort to resolve the case without trial, seeking only the resolution that satisfies the goals you have established regarding the case. At the same time, an attorney should prepare your case for trial from day one so that your chances of prevailing, should trial be necessary, are maximized. The thought of going to trial is terrifying to most people who have never been in a courtroom before as a defendant charged with a crime. The best DUI defense attorneys will explain the process in detail and will fully prepare you for all phases of trial so that the stress caused by the unknown is minimized if your case actually does proceed to trial.

Will I Lose My Job Because of a DUI?

Although you won’t find “loss of job” listed in the DUI penalty statute, a DUI arrest can have a devastating impact upon your continued employment. If your job requires driving, or you need to drive to get to work, a DUI arrest sets in motion two ways you can suffer due to loss of your license: (1) administratively at the hands of the Department of Licensing and (2) by DOL action if you are subsequently convicted of DUI. There is a twist: Under the “Ignition Interlock Law” an individual may continue to drive, without interruption, so long as the vehicle is equipped with an ignition interlock device. SR22 insurance is on file with the DOL, and the appropriate application to DOL has been made along with payment of fees. The law provides an exception to the ignition interlock requirement for employees driving employer-owned vehicles on legitimate company business. 

License suspension due to a DUI arrest poses an additional concern especially if you drive a company car: You are required to file “proof of financial responsibility” (SR22 insurance) with the department of licensing for three years. Some employers view drivers who are required to file SR22 insurance as “too risky” to entrust with company cars.

As a practical matter, if your job involves traveling and you must rent cars in destination cities, the DUI arrest itself can cause huge problems. Recall that upon a DUI arrest with a breath test of .08 or higher or a breath test refusal, the Department of Licensing issues a suspension that becomes effective 30 days after the arrest (be sure to timely request a hearing to fight the suspension). The  driver can apply for an “ignition interlock license” and the “employer exception” that will permit the driver to drive on company  business,  even vehicles that are rented  pursuant to business. However, there is a practical problem because some rental companies might refuse to rent to a person who has a restricted license of this type. Additionally, the DOL advises that the interlock license may or may not be recognized by other states. These and other considerations make it advisable to timely request a DOL hearing to contest the administrative suspension. A victory at this hearing would avoid all of the above problems unless there ultimately is a conviction on the underlying DUI.

There are some careers that will be jeopardized by a DUI arrest or conviction for reasons other than loss of the ability to drive. Corporate officers, public figures, professional athletes, or employees with security clearances or in sensitive positions may find, if the matter comes to the attention of the media, that the impact of the resultant adverse publicity is more damaging to the career than the actual “legal” consequences of a DUI. Jon Fox of the Fox Law Firm has represented many individuals in this situation. Such cases must be defended well and handled carefully, with the objective of preserving the career while minimizing potential legal consequences.

If you have fears about the impact of a DUI arrest or conviction upon your career, you should first determine, by obtaining the advice of experienced DUI defense counsel, the true potential consequences of your arrest and, with your lawyer, map out the best legal defense to the charge. Next, determine what the corporate policy is in the event of a DUI arrest or conviction so that you will not be terminated for failing to report an arrest IF you are required to do so. Take no steps without adequate professional advice. In some cases, additional steps might include contacting a union representative, or seeking independent representation by a lawyer versed in employment law.

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

How Much Did You Have to Drink?

This is a critical question in any DUI case. A DUI defense attorney will know how to use an established scientific method called “Widmark’s Formula,” to determine whether the amount you had to drink was in fact enough to produce a reading over the “legal limit.” To be reasonably accurate, the period of consumption, rate of consumption and type of liquor consumed must be known along with other critical facts such as your body weight. This evidence is admissible in court to cast doubt upon the results of the breath test machine. Ultimately the jury will decide whether it believes in the sworn testimony of citizen witnesses or “guilt by machine.”

The Washington State Liquor Control Board in the past published and distributed BAC charts for men and women. These charts showed the Liquor Board’s best guess as to what the alcohol level would be for a given amount of drinking. The Liquor Control Board charts are included herein with this caveat: There are so many variables in the formula used to calculate breath test results based upon an individual’s weight and number of drinks consumed that the chart is practically worthless as a way to precisely determine an individual’s breath alcohol concentration. This fact, however, did not stop the Washington Supreme Court in the case of State v. Brayman from referring to the chart in its ruling that Washington’s DUI law criminalizing “per se” a given alcohol level is constitutional.

Why Did the Police Officer Stop You?

There must be a valid reason to detain a citizen and it must be proved in court if challenged by the defense. All citizens in this country have the right to travel free of unjustified police interference. Random stops of citizens by police are illegal and police stops based upon a hunch are also illegal. A roadblock is a random stop and is not permitted in Washington, although other states do allow the use of roadblocks.

Typical “drunk driving” (weaving all over the road) is not always the reason people who wind up getting arrested for DUI are stopped by police. Many people who are arrested were stopped for speeding, having a tail light out, driving with no lights on at night, or expired registration. In fact, the police are trained to look for certain driving mannerisms that might indicate a chance that the driver is drunk. A list of suspicious driving mannerisms is published by the National Highway Traffic Safety Administration (U.S. DOT-NHTSADOT HS 805711) including the percentage chance (according to the DOT) that a driver at night is legally drunk. Here is the list:

Turning With Wide Radius 65%
Straddling Center or Lane Marker 65%
“Appearing” To Be Drunk (e.g., Slouching in the seat, Gesturing erratically or obscenely, Eye fixation, Tightly gripping the steering wheel Face close to the windshield, Drinking in the vehicle, Driver’s head protruding from vehicle) 60%
Weaving 60%
Driving on Other Than Designated Roadway 55%
Swerving 55%
Slow Speed (More Than 10 MPH Below Speed Limit) 50%
Stopping (Without Cause) in Traffic Lane 50%
Following Too Closely 50%
Drifting 50%
Tires on Center or Lane Marker 45%
Braking Erratically 45%
Driving Into Opposing or Crossing Traffic 45%
Signaling Inconsistent With Driving Actions 40%
Slow Response to Traffic Signals 40%
Stopping Inappropriately (Other Than in Traffic Lane) 35%
Turning Abruptly or Illegally 35%
Accelerating or Decelerating Rapidly 30%
Headlights Off 30%

Not all of these indications constitute violations of the law justifying the stop of a car. If a car is illegally stopped, generally speaking, anything discovered by a police officer after the stop is “tainted” evidence which cannot be used court. Thus, the legality of the initial detention is often a critical and hard fought issue in a drunk driving case. Such litigation has implications beyond the individual case because it protects the constitutional rights of all of us.

Did you take the Portable Breath Test?

A PBT machine is a portable breath test device used by police to help them decide whether to make a drunk driving arrest. It is typically given at the roadside where the drunk driving arrest is made, whereas the “official” breath test machine – the Draeger 9510 Alcosensor  – is located at a police station. The PBT is used for “probable cause” whereas the Draeger is used as evidence at trial on a drunk driving charge. (The “Breathalyzer” has not been used in Washington state by police for years but that term is still often used when referring to the evidential breath test machine at the police station.)

The law specifies a protocol for the administration of the PBT and the advisements that must be given before the PBT is administered. If the officer doesn’t give the correct advisements, then the results of the portable breath test cannot be used in court for any purpose. If the correct advisements are given, then the results of the portable breath test may be used in a “probable cause” hearing but not at trial. Of course, preventing the portable breath test from being used at trial depends upon the defense attorney being alert to the potential use of the portable breath test and making a timely objection in pretrial motions before the start of the trial on the DUI charge.

There is a critical difference between the PBT and the “official” breath test machine — Draeger 9510: You do not have to submit to the PBT, but the law says that you will lose your license for at least one year if you refuse to take a legally requested Draeger breath test. It is a grave mistake to confuse the PBT with the “official” test, but the critical legal difference between the PBT and the Draeger frequently is not clearly explained to a driver during a drunk driving arrest and processing. These are fine legal distinctions, and a person arrested for DUI would be well advised to ask to speak with an attorney (they are available 24 hours a day by telephone in most Washington counties.)

Questions? Call Jon Fox at the Fox Law Firm PLLC (425) 274-9190.

Did you take the Field Sobriety Test?

The term “field sobriety tests” is a misnomer. Even the “state of the art” field sobriety tests currently approved by the Federal Government do not, according to the most recent research, measure impairment of the ability to safely drive a car. They do measure agility and the ability to do certain physical feats under extreme pressure. Calling them “roadside agility tests” is probably more accurate but since most people know them as field sobriety tests, we will use that term in this section.

Field sobriety tests are not mandatory and there is no legal obligation to submit to the tests under Washington Law. Refusing the tests, however, will probably not prevent the driver’s arrest and may even make the arrest happen more quickly. A refusal to do the tests will undoubtedly make the officer more suspicious. Prosecutors like to argue that the refusal to take field sobriety tests is evidence of “consciousness of guilt,” but there are many good reasons why a person might refuse to take the field tests.

Experienced DUI defense attorneys have heard officers testify about a variety of “sobriety tests” which are offered to prove that a driver is drunk. These tests included such feats as the following:

Coin Pickup Test

Officer drops coins on the ground. Driver tries to pick them up. Driver has trouble picking one or more of them up, or misses one in the darkness.

Hand Pat Test

Officer tells driver to pat hands in a particular sequential order, up, up, up and down, down, for instance. If the driver fails to follow instructions, (because she has never tried such a thing before) it’s a “fail.”

Trick Questions

“What was the date of your thirteenth birthday?” If not answered properly, this shows the driver is under the influence of alcohol.

Partial ABCs

Say the abc’s from “D” through “U,” without singing them. If not said properly, or if done they way they were learned, by singing, you’re one step closer to jail.

Tongue Twisters

Say “sophisticated statistics” or “Methodist methods” quickly three times.

Time Estimates

Close your eyes and estimate when 25 seconds has elapsed.

None of these tests is a scientific measure of intoxication and there is no scientific research to justify use of such tests. There are, in fact, only three tests “approved” by the Federal Government (National Highway Traffic Safety Administration or “NHTSA”) for use by police: Horizontal Gaze Nystagmus (HGN), the “One-Leg Stand” and the “Walk and Turn” tests. These are the ONLY tests the federal government has determined are “empirically related” to blood alcohol levels. To be valid, the NHTSA approved tests must be administered and graded precisely according to NHTSA rules for each and every DUI suspect. Let’s examine the “approved” NHTSA battery of field sobriety tests:


This is an “eye test” and the officer tries to estimate in degrees where the suspects eye “bounces” when following a pen or finger from side to side. The vast majority of Washington courts have not been persuaded that this test is reliable enough to be used as courtroom forensic evidence that a driver was intoxicated, but many police officers think it is the most accurate field sobriety test.

One-Leg Stand

Subject stands on one leg for approximately 30 seconds. NHTSA instructs the officer to look for four “clues” to determine pass or fail:

  • sways while balancing
  • uses arms to balance
  • hops
  • puts foot down

According to NHTSA, the best that can be said about this test is that if the individual is unable to finish the test, the “probability” of correctly identifying an individual with a blood alcohol concentration of .08% or higher is 65%. This means that under ideal conditions, this test “fails” 35 out of 100 people whose blood alcohol concentration is not over the legal limit.

Walk and Turn or Walk the Line Test

The federal procedure for this test requires a visible line to walk or a straight reference point, like a curb, in plain sight. Further, the testing surface must be level. NHTSA requires the officer to give specific instructions, including requiring the suspect to stand in a “heel to toe” position during the instructions. Next, the suspect must walk nine steps up and nine back, all heel to toe, all on the line. Here are the “clues” used to determine “pass” or “fail:”

  • can’t balance during instructions
  • starts too soon
  • stops while walking
  • doesn’t touch heel to toe
  • steps off the line
  • uses arms to balance
  • loses balance on turn or turns incorrectly
  • takes the wrong number of steps

If the individual is unable to complete the heel to toe test, the probability of correctly classifying an individual as having a .08% bac or more is 68%. This means that 32 of every 100 people who fail this test are, by NHTSA logic, “legally sober.”

There is probably not a single police agency in the state of Washington which strictly follows the Federal NHTSA rules for field sobriety tests. As an example, here are the “heel to toe” instructions typically given by a local police department’s DUI emphasis patrol officers:

Have subject stand on line, right heel to left toe, keeping arms at sides while you complete the instructions for the test. After giving the instructions, have the subject walk in a straight line (no visible line is required in these instructions) in a heel to toe manner, taking nine steps without stopping, keeping arms at sides, looking at feet while stepping, and counting the steps out loud, then turn around by taking small steps with the back foot while keeping the front foot on the line, and walk back in the same manner.

A driver who refuses to take the field sobriety tests forces the officer to make the decision to arrest based upon the evidence of intoxication, if any, the officer has obtained up to the point the FSTs were refused. If the officer smelled alcohol on the driver’s breath, and noticed ANY other signs that might indicate intoxication, the arrest is almost a certainty if the driver refuses the field tests. The arrest might have been avoided had the driver taken the tests and passed them 100%. On the other hand, for most officers, less than perfect performance on the field sobriety tests will likely constitute a “failing” grade and result in an arrest anyway. The driver being asked to take field sobriety tests faces a difficult decision, and one that must be made quickly as the officer awaits an answer to his question.

Questions? Call Jon Fox at the Fox Law Firm PLLC (425) 274-9190.

Were you read your Miranda Rights?

Anybody who has watched television has heard that the arresting officer must read the “Miranda rights” when a citizen is arrested. What is the effect of the officer not reading the Miranda rights to a person arrested for DUI? It depends upon the particular facts of your case.

The “Miranda rule” came about in order to insure that statements by the accused would not be coerced by police officers. The arrestee’s responses to questions by a police officer cannot be used in court, no matter how critical they are to proving the charge, unless the prosecution proves that the suspect was advised of the Miranda rights and waived those rights before questioning. A common misconception is that a criminal charge is automatically dismissed if the suspect was not “read his rights.” The truth is that the prosecution is entitled to continue but would be prevented from using the suspect’s statements in court. If those statements were a critical part of the case, there might not be enough evidence remaining to attempt to prove the charge. Then, a dismissal might follow. If there is sufficient evidence remaining without considering statements of the accused, the trial will go on. 

Most people DO waive their right to remain silent and answer the officer’s questions, thinking that if they cooperate with the officer it will help their case. Certainly, everyone wants to be cooperative. However, in asking questions of a suspect in custody, the officer is doing his job and looking for more evidence to help INCRIMINATE THE SUSPECT. The law gives you the right not to answer questions, and your silence cannot be used against you in court as evidence of “consciousness of guilt.”

A form (usually called the Alcohol Influence Report, or AIR) is used by almost all Washington police agencies. It contains questions asked of all DUI suspects who waive the right to remain silent. Typically, the officer writes down the suspect’s answers to the questions and the suspect is not allowed to review the answers written down for correctness or context.

As you have read, one of the “Miranda rights” is the right to consult with an attorney before answering questions. In Washington state, by a criminal court rule set forth by the Washington Supreme Court, a suspect in custody on suspicion of DUI must be advised that he has the right to an attorney before being asked to make a decision about taking or refusing the breath test. If suspect was not advised of the right to counsel as explained herein, a breath test subsequently administered cannot be used in the DUI criminal prosecution.