The E-DUI Law is a Feel-Good Hypocrisy

Law enforcement has announced that “E-DUI” enforcement patrols will be stepped up in April with over 150 Washington police agencies participating. “E-DUI” refers to Washington State’s distracted driving law which went into effect on July 23, 2017. It’s called “E-DUI” because, as is pointed out on the DOL’s webpage,  talking on a cell phone while driving is the same as driving at a .08 alcohol level. DOL also says that texting while driving is the same as driving at a .16 alcohol level – double the legal limit. So, it makes sense that the penalties for an alcohol DUI are the same as for an E-DUI, right? Let’s find out.

For a first offense DUI, the Washington State penalties include one day in jail minimum (up to a year), a fine of approximately $1,000 (up to $5,000), three years of high risk insurance, a 90 day license suspension (up to two years), ignition interlock for a year, up to five years on probation, and a permanent criminal record.

What’s the penalty for the new “E-DUI?” First of all, it’s not even a crime, so there’s no criminal record and no jail is possible. The penalty for an E-DUI is $136 for the first offense, and $234 for the second offense. That’s it.

For over thirty years, I’ve been providing vigorous representation to folks who are faced with the  frightening and harsh penalties that come if there is a DUI conviction. I know that many people who are arrested for DUI are unaware that their alcohol level is over the limit.  By comparison, every person who is driving and talks or texts on a cell phone they’re holding knows that they are breaking the law.

Either the penalties for an alcohol DUI are too harsh, or the penalty for an E-DUI is too lenient. The legislature can’t have it both ways. On the one hand, every year the legislature looks for ways to make the DUI laws harsher and arguably the laws are now too harsh. On the other hand, if the DUI laws are not deemed too harsh, then the E-DUI law the legislature passed last year is just a feel-good hypocrisy.


After a DUI License Suspension – Get Legal

Avoiding license suspension is one of the goals of a DUI attorney, but no attorney can guarantee a win on this front.  When a suspension is imposed, knowing the proper steps to take after the suspension has been served is very important. If you have just finished serving a DUI license suspension,  you are still not legal to drive unless you “reinstate” your license. The DOL does not automatically give you your license back after you have served a suspension. The requirements for reinstatement are different depending upon the type an length of license suspension.  The DOL has created a web-tool that is a good way to know what DOL is requiring, and how to comply. Find it here: https://fortress.wa.gov/dol/dolprod/dsdreinstatements/. In some cases, simply payment of a reinstatement fee is required. In others, filing SR-22 insurance, an alcohol evaluation and follow-up treatment is required. In still other cases, you’ll need to take the written and driving exams in addition to other requirements before the license is reinstated. TYou can always give my office a call (425) 274-9190 for help with this or any criminal traffic related problem. We offer representation for all DUI and traffic related matters, focusing upon cases arising in Western Washington, but also offering representation in certain cases in counties east of the mountains.


Meteors, Cosmic Rays and DUI defense

Meteor DUI DefenseRecent happenings (March, 2010) reveal some unusual defenses to DUI charges. First, there was the decision of the Court of Appeals in State of Washington vs. Richard Charles Tracer, No. 37812-4-II. This was a Washington State DUI/Vehicular Assault case where the Court of Appeals discussed the propriety of the legal procedure employed by the trial court in appointing a special prosecutor to handle the case when the “regular” prosecutor failed to appear for a hearing. The case involved a Vehicular Assault charge where the defendant’s vehicle collided head-on with another vehicle. The defendant’s blood alcohol was .13 according to court records. One way a misdemeanor DUI becomes a felony Vehicular Assault is where the DUI driver causes substantial bodily harm to another person. The defense challenged whether the injury was “caused” by the defendant. If the swerve of the defendant’s vehicle was due to something beyond the defendant’s control, he did not “cause” the substantial bodily harm to the other driver. Enter the meteor. Literally. As the court put it:  “According to his defense attorney, on May 25, 2007, Richard Charles Tracer collided with another vehicle after the car he was driving was hit by a meteor. Tracer’s counsel told the Jefferson County Superior Court that because it was the meteor and not Tracer’s .13 blood alcohol level that caused the collision, the special deputy prosecutor appointed to handle the case had agreed to allow Tracer to plead guilty to driving while under the influence (DUI).” The published court record does not reveal whether there was physical evidence of a meteor striking the defendant’s vehicle or whether anyone saw the meteor enter the earth’s atmosphere, streaking towards the defendant’s vehicle to keep its date with destiny. However, according to some sources, the chances of a meteorite striking a human are such that it is expected to happen once every 186 years. A car presents a larger target but nonetheless, it might be a hundred years before the meteorite defense is seen again in a court of law.

One lesson from all this, that that “cosmic events” might well impact ordinary life, is reinforced by the recent Toyota Prius “unexplained acceleration” problems that we have heard so much about. It seems that some instances of unexplained acceleration remain unexplained. The company was unable to duplicate any aspect of the unexplained acceleration that a Los Angeles driver said occurred in his Prius in a widely publicized case recently. A few days after this incident, a news article entitled “Toyota mystery: Could cosmic rays be the culprit?” by reporter Justin Hyde was widely published. The article stated: “It may sound far-fetched, but federal regulators are studying whether sudden acceleration in Toyotas is linked to cosmic rays… Radiation from space long has affected airplanes and spacecraft, and is known for triggering errors in computer systems, but has received scant attention in the auto industry.” The article further states: “Electronics makers have known for decades about “single event upsets” (SEUs) — computer errors from radiation created when cosmic rays strike the atmosphere. Yet, the tipster last month told the National Highway Transportation Safety Administration (NHTSA) that “the automotive industry has yet to truly anticipate SEUs.”
All of which brings us to breath testing in Washington State DUI cases. Washington State’s DUI breath test machine is computer controlled, as is the Prius control system. Washington States’ DUI breath test machine is, however, based upon 1980’s computer technology. Your author is familiar with a number of cases where the alcohol that was reported as being consumed does not add up to a breath test reading over the legal limit. Could cosmic rays be the culprit? We’ll never know. The issue has never been studied. Although the potential impact of cosmic rays upon breath testing might seem farfetched, the same was said about the defense assertions, later substantiated, that radio frequency interference (such as from an officer’s handheld radio) could impact breath test results. Today, every state of the art breath DUI breath testing machine is protected in one way or another from the impact of radio frequency interference but there is no shielding for cosmic rays.


Exactly What Is An Ignition Interlock?

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

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

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

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

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

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


Do Zero Tolerance DUI Laws for Minors Work?

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

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

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

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

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

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

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

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


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 arrest by WSP?

 Most people know that police power to make an arrest is usually limited by the jurisdiction served by the agency.  In other words, ordinarily, a Seattle DUI Squad police officer cannot patrol and make a DUI arrest in the City of Bellevue.  In the usual case, a Seattle DUI arrest is made only by a Seattle police officer, and a Bellevue DUI arrest would only be made by a Bellevue police officer.  There are exceptions, such as when an arrest is made pursuant to a valid interjurisdictional agreement. A different situation is presented, however, when a Seattle DUI arrest is made by the Washington State Patrol.  Most of the time a WSP Seattle DUI arrest would occur on a freeway passing through Seattle, and nobody quarrels with the authority of the State Patrol to patrol freeways as it is  universally understood that the Washington State Patrol has the authority to patrol the highways.  However, occasionally a Seattle DUI arrest will be made by a WSP  trooper on a Seattle city street. This strikes many people as being “outside of the jurisdiction” of the Washington State Patrol.  However, by statute, a Seattle DUI arrest made by a Washington state patrol trooper on a Seattle city street would be authorized pursuant to RCW 43.43.030 which simply states:
Powers and duties — Peace officers. 
The chief and other officers of the Washington state patrol shall have and exercise, throughout the state, such police powers and duties as are vested in sheriffs and peace officers generally, and such other powers and duties as are prescribed by law.
Whenever a Seattle DUI arrest occurs, and in any Washington state DUI arrest, our firm will investigate to determine the basis of  a challenge to the jurisdiction and authority of the officer making the  DUI stop. Our firm can be reached at (425) 451-1995 or contact us online.


Seattle DUI-Can Police Force You To Take a Blood Test?

Washington State DUI law can be confusing and in some instances, misleading. Most citizens in Washington State know that in the case of a Seattle DUI (or a DUI anywhere in Washington State, for that matter) the usual choice that must be made between taking a breath test or refusing it.  In most DUI arrests, the investigation goes no further in terms of collecting evidence. The Seattle DUI case is filed and the prosecutor proceeds either with a breath test or a refusal. The driver has been advised under our Implied Consent Law that there are consequences for taking the breath test and blowing at or over the legal limit, or for refusing the breath test. What the DUI defendant does not know is that if there is a refusal to take the breath test, a Seattle Police DUI Squad officer is likely to telephonically obtain a search warrant compelling the driver to give blood.  The driver therefore faces the consequences of refusing the breath test (loss of license and the prosecutor can argue to the jury that the refusal indicates “consciousness of guilt”) while at the same time, the driver is going to be driven to the hospital where a blood sample will be taken pursuant to court order to be used as evidence against him. Moreover, the Implied Consent law states that if the test is refused “no test shall be given.” The same Implied Consent law, however, states that lack of consent to the test does not prevent the officer from seeking a warrant.  If a Seattle DUI defendant had been told that blood would be compelled if he refused the DUI breath test, most folks would take the breath test. However, our Implied Consent Law does not require such an advisement and no such advisement is given. The whole matter is now before the Washington State Supreme Court, brilliantly argued by Seattle DUI attorney Ryan Robertson for the defense. Keep an eye out for the decision in Seattle v. Robert St. John, No. 81992-1.

 

UPDATE 9-10-09: The Supreme Court has ruled that there is no statutory or constitutional bar to the taking of blood pursuant to a search warrant if the DUI suspect has refused to submit to a breath test. See the blog “Refuse a breath test at your peril.”


CDL Will No Longer Be Saved By A Deferred Prosecution For DUI Arrest

Senate Bill 6068, Section 1 amends RCW 46.20.270 and Section 2 amends RCW 46.25.010.  Under this statute, a deferred prosecution will not save a person’s CDL. Undoubtedly, the new language will have a tremendous detrimental effect on unsuspecting CDL holders and possibly surprise attorneys who are unaware of this change. The date to keep in mind is July 26, 2009. On this date a few simple words in the law will erase what once was a safe harbor for those who possess a CDL and charged with a DUI, even if the DUI arrest occurred while in a personal vehicle.

RCW 46.20 is the general statute that requires drivers of motor vehicles  to obtain a valid driver’s license and sets out exceptions, exemptions, and punishments for violations of the statute. The specific changes to this statute are found in RCW 46.20.270, subsections 4 and 5.  The changes to these subsections are found within SECTION 1 of the new Bill (6068).  The major substantive change is new lanaguge in RCW 46.25.010(7). There, “entry into a deferred prosecution” is added to the long list of what will now be considered a conviction for purposed of the CDL.

Although the question comes up with some frequency as to whether a Deferred Prosecution saves a person’s CDL, the answer after July 26, 2009 is now simple: No, it will not.

This change has come about due to what many have called “Anti-Masking” Legislation.  Pursuant to 49 CFR 384.226, Judges are not allowed to “mask” convictions.  The state must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver’s conviction for any violation, in any type of motor vehicle, of a state or local traffic control law (except a parking violation) from appearing on a driver’s record, whether the driver was convicted of an offense committed in the state where the driver license is licensed or another state. We started seeing this a few years ago in traffic courts and to most practitioners who limit their practice to DUI defense this change is not really all that surprising. However, to the average CDL holder who previously knew that in worst case scenario a Deferred Prosecution was an “ace in the hole,” the odds are now completely stacked against the CDL holder and in favor of the house.

As a result of the Federal Legislation forcing this amendment the DUI / CDL arena has now shifted. A basic working knowledge of the interplay between not just the Uniform Commercial Driver’s License Act and Washington State DUI law, but a good working knowledge of Federal Legislation and all other state DUI laws is now a necessity.


DUI Toolbox Includes Jury Trial

In DUI cases it may seem  to the uninitiated that a trial would not be wise.  After all, how can a jury find someone Not Guilty of a DUI charge when the evidence seems overwhelming and it includes a breath test over the legal limit? There are, in fact, numerous Washington State DUI cases where  a dedicated DUI defense attorney secured a NOT GUILTY verdict on behalf of a client who felt overwhelmed by the evidence against him. It is not an easy thing to experience because  trials are risky, they are unpredictable, and trial can certainly be frightening for the accused citizen.

A committed and skilled DUI defense attorney assesses the risks and benefits of trial. Often, trial is the only tool left in the “legal toolbox”  when other means of handling the case have been exhausted.  However, the other tools are used first by a good defense attorney who seeks to obtain the option of a “non-DUI” resolution of the case for the client’s consideration.  If the case can’t be resolved at a pretrial stage, trial may be the only procedure available to the attorney who seeks to fully and completely defend his or her client.  Preparation for a DUI trial, and the commitment to actually trying the case, can lead to good results that were not obtainable at an earler stage of the case. In some cases, the prosecutor is unable to proceed on the day of trial due to witness problems, or  there are too many cases set for the same day so that some must be resolved and others will go to trial. In addition, the prepared DUI defense attorney presents motions that are heard on the morning of trial. If the defense prevails in these motions, the prosecution might be unable to proceed further. There are numerous other things that can happen on the morning of trial that can be to the benefit of the accused when a DUI case goes to trial.  In the end there are many things that have to go right in order to get a trial to actually start.  But when a trial starts, the defense attorney must be committed, prepared and experienced if the correct verdict is to be secured. Trial is something to be respected. The principles of our Constitution come alive in trial as jurors decide whether the government’s accusation will stand against the citizen.   Our legal system grants to the accused the presumption of innocence  from the moment of arrest  until the minute the jury has heard all the evidence and is charged with coming to a decision in the privacy of the jury room.  During this process all six jurors must agree that the evidence presented convinces them that the presumption of innocence is now outweighed by proof, beyond a single reasonable doubt, for a DUI conviction to follow.  The magnitude of this legal hurdle is another reason why a trial is warranted as opposed to a guilty plea when these are the only two options remaining.   Unfortunately, all too often trial is something that some attorneys are afraid of and thus they convince their clients that pleading guilty is the better option. In reality, however, a guilty plea is  most often the  better option for the attroney, not for the client, although each case is different.  While trial is not the only answer in each and every case it presents a challenge to the prosecutor that might be insurmountable due to a number of factors, not the least of which is the skill and determination of the DUI defense attorney. Therefore, if you wish to evaluate the  DUI defense attorney you are considering to represent you regarding  a Washington State DUI arrest, ask the attorney to tell you exactly when the last time was that he or she said in open court on the morning of jury trial:  “READY FOR TRIAL YOUR HONOR!”