Proof of "Consent" in DUI Trials Required for FST
November 29th, 2008
DUI defense attorneys in Washington State have been arguing for years now that field tests require some level of consent. Although the higher courts have repeatedly agreed that field tests are voluntary, they have offered no guidance in determining what level of consent is required to determine whether or not a person volunteered to participate. Regardless of the level of consent that is applied by the court, however, central to any consent argument is whether or not your client had the capability to make a voluntary judgment. A recent case from Division One may be helpful to us in that regard. This court handles DUI appeals from King County and cities such as Bellevue, Seattle and Redmond. In State v. Salah Al-Hamdani, No. 47227-5-I (Div. 1, December 2001), the issue of whether an intoxicated person is capable of giving consent was addressed in the context of a Second Degree Rape case. While not a DUI case, this opinion contains principles useful to DUI Defense attorneys in the course of defending DUI charges. The Rape 2 statute requires that a victim be incapable of consent by reason of being physically helpless or mentally incapacitated. A person is mentally incapacitated when he or she has a condition that prevents understanding the nature or consequences of the act of sexual intercourse. RCW 9A.44.050; RCW 9A.44.010. In Al-Hamdani, the victim had consumed enough alcohol to produce an estimated blood alcohol level of somewhere between .13 and .21. The court accepted expert testimony that a person at this blood alcohol level could not appreciate the consequences of her actions and was, therefore, incapable of providing consent. In a DUI context, it certainly seems reasonable that a person who is too intoxicated to understand the nature or consequences of the act of sexual intercourse would also be too intoxicated to understand the nature or consequences of consenting to the gathering of potentially inculpatory evidence in a criminal investigation. It should follow, then, that an individual with an estimated blood alcohol level greater than .13 should be deemed incapable of providing consent to participate in such an act.