Police Can GPS Track You After A DUI

Who knew? Police can track you via GPS after a DUI. A Washington State DUI conviction carries with it a requirement of at least one year of ignition interlock on any car that you drive. Even before a conviction, a license suspension means you can’t drive unless you have an ignition interlock in your car. Some courts require ignition interlock as a “condition of release” which means it is required from the first appearance in court until the end of the court case, no matter what the DOL says.
Most folks know that an ignition interlock device (commonly referred to as the “blow and go”) requires you to blow into the device before your car will start and periodically when the car is being driven. If alcohol is detected, the car won’t start. If you are driving, the horn will honk and the headlights will start blinking if alcohol is detected. Over the years, the legislature has quietly added two features to the interlock: (1) The interlock must have a camera that records a photo of the person blowing and (2) the interlock must have a GPS that records the exact location of the car when the device is used. By law, the photos and GPS coordinates must be stored by the interlock provider. The photos and coordinates are not protected by law from disclosure. In fact, the interlock provider cannot refuse to hand the data over to the Washington State Patrol upon request – no search warrant required. The photos and GPS logs are “to be used for circumvention and tampering investigations.” Most people likely won’t care about this type of government-mandated tracking unless they are required to have an interlock to drive. Then, it hits home.

Courtesy: SmartStartThis provision of Washington State’s interlock laws was passed without any press coverage of the photo or GPS requirement. Supporters would say it is only a slight loss of privacy to the driver, required by the state as a condition of being able to drive after a DUI. On the other hand, it’s a bit creepy that the state is now, by law, tracking the every day movements of thousands of citizens under the authority of Washington state DUI laws. The Washington Court of Appeals has considered whether GPS surveillance is a violation of the right to  privacy. In 2003, before the GPS/interlock law, the court said: “We conclude that citizens of this State have a right to be free from the type of governmental intrusion that occurs when a GPS device is attached to a citizen’s vehicle, regardless of reduced privacy expectations due to advances in technology. We hold that under article I, section 7 a warrant is required for installation of these devices.” To date, the legality of warrantless GPS tracking via interlock has not been addressed by our courts.

Resources: RCW – Standards for Interlocks

(Photo courtesy SmartStart)

DUI arrest leads to loss of custody of kids?

Every year, Washington State legislature amends the DUI laws in an effort to make the DUI laws even tougher or to “tune up ” the laws. This year’s legislative session resulted in the passage of HB 3124, a law that went into effect June 10, 2010. The law requires that a police officer who makes a DUI arrest must “promptly notify Child Protective Services” whenever a child under the age of thirteen is present in the vehicle. The details are in the full text of the law, presented below.

There are already a number of “automatic” consequences that accompany a DUI arrest. For instance, if the breath test reading is over 0.08, expect mandatory license suspension, mandatory jail, mandatory fines, mandatory ignition interlock, mandatory conditions of probation, and now, mandatory reporting of the parent’s name to child protective services. It is worth noting that this law applies not only in DUI arrests, but to an arrest for any “drug or alcohol related driving offense.” Also, the law applies only when the vehicle is being driven by a parent, guardian, or legal custodian of the child. As a side note, Washington’s DUI laws also require an increased penalty of sorts in the case of an individual who is convicted of DUI and who had a child under the age of 16 in the vehicle: an additional 60 days of driving only with an ignition interlock will be required beyond whatever other licensing penalties may be imposed. See RCW 46.61.5055(6).

The full text of the law is set forth below.

A law enforcement officer shall promptly notify child protective services whenever a child is present in a vehicle being driven by his or her parent, guardian, or legal custodian and that person is being arrested for a drug or alcohol-related driving offense. This section does not require law enforcement to take custody of the child unless there is no other responsible person, or an agency having the right to physical custody of the child that can be contacted, or the officer has reasonable grounds to believe the child should be taken into custody pursuant to RCW 13.34.050 or 26.44.050. For purposes of this section, “child” means any person under thirteen years of age.

Any Washington State DUI arrest is a serious matter. The lawyers at Fox Bowman Duarte are available 24/7 to help.  Call (425) 451-1995 to reach us.

Work Vehicle exception to Ignition Interlock Requirement

An ignition interlock license is a license that permits one to drive during a period of license suspension resulting from a DUI arrest or conviction so long as the vehicle being driven is equipped with an ignition interlock device and SR22 insurance is in place. See RCW 46.20.385. Prior law required the device to be installed in ANY vehicle driven by the accused, and this undoubtedly resulted in quite a few folks being fired where their employment required the driving of a company car. Thus, the ignition interlock law has an exception. The law states: “The installation of an ignition interlock device is not necessary on vehicles owned by a person’s employer and driven as a requirement of employment during working hours.” Thus, a license suspension due to a DUI arrest/conviction need not mean loss of job. However, the DOL does require proof that the driver falls within the “employer vehicle exception.” The law states: “The person must provide the department with a declaration pursuant to RCW 9A.72.085 from his or her employer stating that the person’s employment requires the person to operate a vehicle owned by the employer during working hours.” The DOL provides a form (downloadable here) to be signed by the employer and filed by the driver, that must be filed with DOL in order for the driver to be approved to drive the employer’s non-ignition interlocked vehicle. The problem is that, as a practical matter, there will be some employers who will fire the driver when presented with the form simply because they now perceive the employee as an increased risk when driving a company vehicle. There is no doubt that the law providing for an employer vehicle exception is better than the same law without such an exception but as with most things, this law is not perfect. Avoiding this situation altogether is the best approach. Diana Lundin of our office focuses her practice on DOL administrative hearings and ultimately, upon the task of saving a client’s license from DOL administrative suspension and/or ignition interlock requirements.

Cancellation of Ignition Interlock License?

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

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

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

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

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

RCW 46.20.745

Ignition interlock device revolving account program — Pilot program. 

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

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

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

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

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

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

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

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

“Hard” license suspension for Seattle DUI?

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

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

Washington State DUI Law: Is Your Car Talking to the Police?

Washington State DUI law currently includes a little-known provision that turns your car into a four-wheeled police agent, ready and willing to notify the police when it senses that a DUI probation violation may have occurred. Recall that in several situations, a citizen accused or convicted of a Seattle DUI or Washington State DUI is required to obtain an ignition interlock license. In essence, such a driver can legally drive only a vehicle that has a Washington State DUI ignition interlock installed. The ignition interlock is about the size of a cell phone and it requires the driver to blow into it, with a “no alcohol” (under .025) result, before the car will start. Less well known is that under Washington Administrative Code regulations the device must require the driver to submit to a “rolling retest” within ten minutes of starting the vehicle, and then at intervals not to exceed sixty minutes after the first retest. (WAC 204-50-110(7)). What happens if the device produces a result exceeding .025 during the rolling retest? According to the regulation:

“The device shall be equipped with a method of immediately notifying peace officers if the required retest(s) above is not performed, or if the result of the retest exceeds the lower of .025 BAC or the alcohol concentration as prescribed by the originating court. Examples of acceptable forms of notification are repeated honking of the vehicle’s horn, repeated flashing of the vehicle’s headlamps, or the wailing of a small siren. Such notification may be disabled only by switching the engine off, or by the achievement of a retest at a level the lower of .025 BAC or the maximum allowable alcohol concentration as set by the originating court.”

The law does not limit the “method” by which the interlock will accomplish “notification of police officers” under these circumstances, although it does contain recommendations including honking of the horn, etc. It won’t be long before the convergence of ignition interlock technology and existing Onstar or similar GPS technology results in police officers being notified automatically by the on board cell phone/GPS system if the interlock reading, accurate or not, is .025 or higher. Would such a DUI – related stop be legal? We will know that answer in some future appellate decision.

There are already real-life cases of the police using the factory installed Onstar equipment pursuant to a warrant to track the location of targeted vehicles. At the same time, ignition interlock devices are not 100% reliable and false positive readings can occur. If interlock technology converges with Onstar/GPS technology, it won’t be long before police officers are rushing to stop a “suspect vehicle” based upon an on-board tip that a probation violation (alcohol reading of .025 or more) has occurred.

Washington DUI courts are willing to embrace technology such as interlocks to insure that Seattle or Washington State DUI probationer is in compliance with all conditions. However, caution is urged as technologies converge in the quest for total monitoring of those accused of a Washington State DUI, since no technology is infallible.

Accidents More Likely Because of Ignition Interlocks?

Installation of an ignition interlock device (IID) in a driver’s car is the intended result of Washington State DUI laws. The ignition interlock device is required to be installed if a driver’s license is suspended due to  a DUI arrest or conviction anywhere in Washington State. This is a statewide law, and applies equally to a Seattle DUI or a Bellevue DUI or any other location in our state. Everybody knows that the ignition interlock  is a device (a bit larger than the average cell phone) that is attached to the wiring of car to prevent the car from starting. However, what is not well known is that Washington State’s DUI law also requires a “rolling retest” after the vehicle has been started. In this process, when the car is in motion, the ignition interlock signals the driver to blow into the device. Here is the part of our state DUI law requiring a rolling retest:
WAC 2-4-50-110 (7) Each device shall require the operator of the vehicle to submit to a retest within ten minutes of starting the vehicle. Retesting shall continue at intervals not to exceed sixty minutes after the first retest. The device shall be equipped with a method of immediately notifying peace officers if the required retest(s) above is not performed, or if the result of the retest exceeds the lower of .025 BAC or the alcohol concentration as prescribed by the originating court. Examples of acceptable forms of notification are repeated honking of the vehicle’s horn, repeated flashing of the vehicle’s headlamps, or the wailing of a small siren. Such notification may be disabled only by switching the engine off, or by the achievement of a retest at a level the lower of .025 BAC or the maximum allowable alcohol concentration as set by the originating court.”
The dangers from the use of cell phones while driving are well documented and have resulted in Washington State’s “cell phone law” that makes it illegal to use your cell phone while driving unless via Bluetooth device. The danger in using cell phones while driving is that they are distracting. However, anyone who has seen an ignition interlock device being used will agree that the ignition interlock device is much more distracting to the driver than a cell phone.  It stands to reason that the distraction caused by the device will lead to crashes and injuries.
The intent of our legislature in requiring the IID is to prevent injury due to DUI. Has the legislature unwittingly increased the probability that those same drivers are more likely to be involved in a crash due to the distraction caused by the “rolling retest?” There is no research in Washington State but the California DMV commissioned a study regarding the effectiveness of ignition interlock in California which found, in the words of the study:
“…drivers installing an IID had a risk of a subsequent crash that was 84% higher than drivers not installing an IID.”
The above quote is taken from page eight of the study: “An Evaluation of the Effectiveness of Ignition Interlock In California,” a report given to the California state legislature in September, 2004. 
Washington State DUI laws are tough and are intended to reduce wrecks and injury caused by drunk drivers. However the ignition interlock law was designed so that it applies to every DUI arrest, making no distinction between the driver who has no prior record and a breath test reading of .08 and the driver whose breath test is .25 and caused an accident. Whereas in previous versions of the law our judges were the ones who decided, on a case by case basis, whether the IID was required, now the DOL makes that decision and requires it across the board with no exceptions.  There is thus no real “targeting” of drivers who have demonstrated the most risk to public welfare in this law. Every driver arrested for DUI in Washington State is targeted for IID. It appears that the Washington State ignition interlock law trades off one risk of harm to the public while accepting another risk. The question is whether it is reasonable to accept an 84% higher risk of crash for every driver arrested for DUI in Washington State. For now, our legislature has said “yes” to that question.

Negligent Driving First Degree or a DUI Trial?

Washington State DUI DefenseA good defense attorney not only prepares for trial, he or she also negotiates with the prosecution in order to persuade the prosecutor to offer a reduced charge. The question that the client must then answer is: Do I accept a plea to the reduced charge or do I go to trial and risk a DUI conviction?

A vast majority of the Fox Bowman Duarte clients have zero criminal history yet they find themselves in unfamiliar territory because they were arrested for drunk driving. These people are your neighbors, friends or relatives. They range in age from 16 to as old as 85. They are your auto mechanic, family doctor or an executive at an emerging startup. Their first encounter with the criminal justice system is terrifying and humbling. They have lived their entire lives obeying the law.

In many cases, our attorneys are able to secure an offer from the prosecutor to reduce the charge. In most cases, the best offer that a prosecutor will make is a reduction to Negligent Driving in the First Degree. This is defined by RCW 46.61.5249:

“A person is guilty of negligent driving in the first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property, and exhibits the effects of having consumed liquor or an illegal drug.”

Accepting an offer of reduction means the DUI is gone but still, accepting the offer means pleading guilty to a crime (in this example, Negligent Driving).  Pleading guilty to any crime is a weighty consideration and so one must consider:  “Do I accept the offer or do I go to trial and risk a DUI conviction?”

Every DUI case is different and each evidentiary fact must be weighed and evaluated thoroughly for each client. Fox Bowman Duarte attorneys know all of the pertinent considerations. This post cannot be construed as encouraging anyone to accept such a particular plea bargain, but it is meant to highlight some of the advantages of a Neg 1 conviction over a DUI conviction.

DUI Defense LawyerA DUI conviction in the State of Washington will trigger MANDATORY DUI penalties. The court will review your past criminal history and determine if there are any previous DUI convictions. The court must also review the breath test reading. The Washington State DUI penalties are enhanced if the blood alcohol reading is equal to or greater than 0.15.

This much is assured with a first DUI conviction:

  • 24 to 48 hours in a jail facility;
  • $1,200 to $2,000 in fines, fees and assessments;
  • 90 days to a year or more of a driver’s license suspension;
  • 3 years of SR-22 high risk insurance when you are able to regain your driving privilege;
  • Ignition interlock device installed in every vehicle you operate with very limited exceptions;
  • 5 years of probation;
  • Attending an alcohol evaluation;
  • Attending a DUI Victim’s Impact Panel; and
  • Being banned from entering Canada;

Those are all MANDATORY penalties for a first time DUI conviction. Now here are the mandatory penalties for Negligent Driving in the First Degree:

  • None

Negligent Driving, First Degree is a crime but there are no mandatory penalties. Of course a judge has discretion to impose the maximum penalty of 90 days in jail and a $1,000 fine. However, a DUI conviction carries a maximum penalty of 365 days in jail and $5,000 fine. So again the DUI conviction has more risk. Keep in mind the maximum is rarely imposed, but every crime must have a maximum penalty according to our legislature.

A plea bargain will almost always require you serve some punishment. Since there are no mandatory penalties with Negligent Driving, First Degree your attorney negotiates that punishment, always keeping in mind your priorities and objectives. A majority of such bargains require a fine, some community service, a victim’s panel, alcohol assessment and 2 years of probation. Pain yes, but you will avoid the possibility of mandatory jail, a license suspension, massive fees, the ignition interlock device etc., as these are among the risks that come with taking a DUI case to trial.

Plea bargains are not offered in every case and when they do occur, they are generally won after a long and hard fight by your aggressive and experienced DUI defense attorney. There are also instances where accepting such an offer is not sound advice and going to trial is the best option. These are weighty decisions and they are best made based upon the experience and advice of your defense lawyer. Please contact one of us at Fox Bowman Duarte to ensure a thorough Washington State DUI defense. We are here to protect your rights and interests.

New Ignition Interlock Device DUI Law for 2009

The New Year has brought significant changes to the Washington State DUI law. This year such a change is in the form of the new “Ignition Interlock License” Law. Our firm is finding answers to the questions raised by the Ignition Interlock Law, (otherwise known as IIL). Problematic areas include the scope of the IIL and the procedural limitations that DOL has when it comes to actually issuing the license “without delay.”   Furthermore, there are a number of nuances in the new law that must be reconciled.

RCW 46.20.308 is the mechanism for DOL hearings and it also impacts the admissibility of breath tests in the District and Municipal Courts.  The new law contains a shorter deadline within which a hearing must be requested. This new deadline is a  minor change with a potential for huge impact.

RCW 46.20.308 (7)  now reads: “A person receiving notification under subsection (6)(b) of this section may, within twenty days after the notice has been given, request in writing a formal hearing before the department.”  This amendment shortens, by 10 days, the deadline that applies to drivers who seek to contest their administrative license suspensions. The shortening of this deadline is another example of how one-sided DUI legislation has become.  Once again, the Department of Licensing, has secured an advantage over the driver by affording themselves 40 days (previously it was 30 days) to find a hearing slot and thereby achieve their goal of reducing “suspension dismissals.” Prior to January 1, 2009 when the Department of Licensing had an equal amount of time as a driver the Department of licensing ran the risk of being unprepared to proceed within the statutory timeline.

RCW 46.208.308, subsection 2 has had a substantial change which affects the admissibility of breath tests due to the Implied Consent Warnings now requiring the additional warning to arrestees that:  “If the driver’s license, permit, or privilege to drive is suspended, revoked, or denied the driver may be eligible to immediately apply for an ignition interlock driver’s license”.   However, many police agencies undoubtedly will not have updated their forms to accurately state the requirements and advisement under the new law.  In any given case, this can provide a basis to argue that incorrect advisement given to a driver, misstates the law and as a consequence the driver’s license should not be suspended and the breath test should be excluded from evidence in a criminal trial.

Another change that has been overshadowed by the IIL is section 11 of the new law which also became effective on January 1, 2009.  It appears to eliminate all of those questions regarding a Washington DUI arrest and the effect a potential WA DOL suspension will have upon a non-resident arrestee’s license in their home state.    This section  reads “When it has been finally determined under the procedures of this section that a nonresident’s privilege to operate a motor vehicle in this state has been suspended, revoked, or denied, the Department shall give information in writing of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which he or she has a license.”  Previously, such notification seemed to be more dependent upon the disposition of the particular hearing examiner as to whether they would notify the non-resident arrestee’s “home state,” but given this new directive, and advisement to the home state of he non-resident driver regarding the suspension of the privilege to drive in Washington state is now all but guaranteed.

Although significant portions of the IIL legislation will provide relief for many citizens arrested for DUI, the amendments to the law also include some minor changes that are easy to overlook.  Although these changes are minor, their effect is to continue to “stack the deck” in favor of the DOL.  The correct response, of course, is aggressive litigation by a DUI defense attorney committed to most effectively representing the client’s needs.