DUI Defense Advocate Blog | Everett | Mill Creek

2010 Washington DUI Law Update

On June 5, 2010, in Caselaw, Criminal Law, DUI, DUI Attorney, DUI Law, DUI News, Monroe, Monroe DUI, Snohomish County, Traffic Law, Washington State, by Scott W. Lawrence, Esq.

The 2010 Washington State Legislative session has brought several law changes related to DUI cases. The biggest changes are not to the DUI laws themselves, but collateral laws such as the Interlock Ignition License statute, child dependency and traffic laws. Unless otherwise noted the updates below do not take effect until January 1, 2011.

Mandatory reporting for suspected DUI with a child in the vehicle. SHB 3124 requires law enforcement officers to notify child protective services when a child under the age of 13 or under is present in a car being driven by a parent, legal custodian, or guardian who is being arrested for driving under the influence of physical control. If an officer believes that the child will be in imminent risk of harm, or there is no person properly authorized to take custody the officer is authorized to take the child into emergency custody.

Unauthorized use of cell phones while driving is a primary offense as of June 10, 2010. What this means is that an officer can now pull over drivers for talking on their cell phone or texting without using a hands-free device or texting while driving. (Previously the officer could only write a ticket for this infraction if he or she had stopped the vehicle for some other valid reason, but could not stop a driver simply for violating the cell phone statute.) Drivers with an instructional permit or intermediate license can no longer use a cell phone while driving at any time. There is an exception to this law when the driver is reporting illegal activity, summoning medical or other emergency help, or to prevent injury to a person or property. Why is this relevant to DUIs? Most DUI cases start as a stop for some type of traffic infraction, such as speeding or failure to use a turn signal. This provides one more reason for officers to legally stop vehicles and initiate DUI investigations. This law may also give officers authority to stop vehicles driven by drivers using hands free devices if they appear too young to have a regular license (although, this is obviously brings up lots of Constitutional issues).

New breath test machines are on the way. HB 2465 amends RCW 46.51.506, the statute governing when a breath test is admissible, to include the use of a dry gas external standard. This allows the State to start replacing the old Datamaster machines (no longer produced) with machines using dry gas technology, the Alcotest 9510 manufactured by German company, Dräger.

Deferred Prosecution administrative fee increase. The administrative fee that courts can charge for a Deferred Prosecution was increased to $250. Considering the cost of an IIL, probation and two years of treatment, this is still the least of one’s worries when entering a DP.

Interlock Ignition License (IIL) law updates. The most significant changes in DUI related legislation come in the area of IIL laws. Amendments to RCW 46.20.385(1)(a) extend the eligibility for an IIL to include drug-related DUI offenses, DUI-related vehicular assault and vehicular homicide. The “employment vehicle” exception is extended to include valets, mechanics and rental cars for “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. “

Under 2SB 2742, an individual must be given 45-days notice of DOL’s intent to cancel a IIL, instead of the 15 days previously required. Notice must also comport with all of the requirements of RCW 46.20.245 (directing how notice is provided and for the right to request an administrative hearing to challenge the cancellation). Also a driver whose IIL has been cancelled may apply for immediate reinstatement if they meet all of the requirements for an IIL.

As of January 1, 2001, before an IIL holder can remove an IID they will have to affirmatively establish that, within the four months prior to the request for removal, there was: (1) no attempt to start the vehicle with a BAC of 0.04% or higher; (2) no failure to take or pass a re-test; and (3) no failure to comply with required calibration, maintenance or repair of the IID.

The Washington Legislature also voted to change some of the requirements for courts when a driver is convicted of DUI. Courts are now required to order installation of an IID and application for an IIL for both drug and alcohol based DUI and Physical control convictions. The court may waive these requirements if the driver (1) does not operate a vehicle, (2) is not otherwise eligible for an IIL, or (3) lives out of state and an IID is not reasonably available. The requirement that the court order “other alcohol monitoring” when not ordering an IIL has been amended so that the court only need require this when also ordering abstinence as well.

Lowering the costs of Deferred Prosecutions courts will no longer be required to order the defendant to apply for an IIL per RCW 46.20.720(2).

Finally, IID installers must begin to use the newer fuel cell technology in lieu of the older T-cell technology. Companies that are currently using T-cell technology have five years to replace their equipment.

Tagged with: Bothell DUI Attorney • Drunk Driving • DUI • DUI Cases • DUI Law • DWI • Monroe DUI • Monroe DUI Attorney • Monroe DUI cases • Monroe DUI law • Snohomish County DUI • Snohomish County DUI Attorney • Washington State

Refusing to perform DUI roadside tests is not indicative of a “conciousness of guilt.”

On April 23, 2010, in Caselaw, Constitutional Law, Criminal Law, DUI, DUI Attorney, DUI Law, DUI News, Everett, Everett DUI Attorney, Mill Creek, News, Snohomish County, United States Constitution, by Scott W. Lawrence, Esq.

On September 29, 2006, Stafford County, Virginia Sherrif Deputy Peter Nelson and a number of other officers were investigating a burglary. The officers believed that the perpetrator had fled the scene. In order to contain and capture the suspect the officers set up a perimeter around the area using police vehicles with their overhead lights activated.

Mr. Jones drove slowly trough the perimeter two times. Because the vehicle had tinted rear windows, Deputy Nelson “flagged down” Jones to make sure the thief was not hiding in his back seat. Upon approaching the vehicle, and talking with Jones, Nelson became aware of a possible DUI when noticed a “strong odor” of alcohol coming from the vehicle.

Nelson continued his investigation of DUI by ordering Jones to exit the vehicle. Jones complied. Nelson testified that at that point he detected an odor of alcohol coming from Jones’s person. Jones denied having consumed any alcohol, but that the odor might have been due to cough drops or incense.

Nelson testified to the usual “tell-tale” DUI signs: slightly slurred speech and glassy red eyes. Jones seemed irrational and made inconsistent statements. He did not know which county he was in and he stated he “came to help” Nelson, but Nelson “was trying to hurt him.”

”If you are not intoxicated, prove to me you’re not intoxicated,” Nelson said as he repeatedly asked Jones to submit to roadside DUI field sobriety tests. Jones refused despite the Deputy’s persistence. After about 15 minutes of converstaion, Nelson arrested Jones for DUI.

At trial Jones’ motion to supress because the officer lacked probable cause to arrest him for DUI was denied and he was convicted. The Virginia Court of Appeals upheld the decision stating that a defendant’s refusal to submit to DUI field sobriety tests supports a finding of probable case beacuse it is evidence of his “conciousness of guilt.”

The Virginia Supreme Court, in JOnes v. Commonwealth, 2010 WL 143787, disagreed with the lower courts’ decisions. A refusal to submit to DUI field sobriaty tests can often be based on innocent reasons. Unlike flight, use of false names, or other deceptive acts, “a driver refusing to submit to a field sobriety test has not undertaken affirmative action to decieve or evade the police.” The decision may be based on physical limitations, dimished ability to communicate or a simply reluctance “to submit to subjective assessments by a police officer.”

The Court held that a DUI suspects refusal to submit to DUI field sobriety tests is not evidence of “conciousness of guilt.” However, refusal to submit to DUI roadside tests can be considered as one factor in determining probable cause to arrest for DUI. In this case, there was sufficient probable cause for DUI arrest.

Tagged with: Bothell DUI Attorney • Constitutional Rights • Court of Appeals • Drunk Driving • DUI • DUI Cases • DUI Law • DUI News • DWI • Everett • Everett DUI Attorney • Mill Creek DUI Attorney • Police • United States Constitution

Speeding, riding the fog line, odor of alcohol and “DUI eyes” do not add up to probable cause to arrest.

On April 18, 2010, in Caselaw, DUI, DUI Attorney, DUI Law, DUI News, Everett, Everett DUI Attorney, Mill Creek, Traffic Law, United States Constitution, by Scott W. Lawrence, Esq.

From the Georgia Court of Appeals comes a helpful case for Washington DUI attroneys on what amounts to probable cause to arrest for DUI. In State v. Encinas, 2010 WL 481357, the officer stopped Mr. Encinas for going 70 M.P.H. in a 55 M.P.H. zone and “riding against the fog line.” Upon approaching the vehicle the officer noticed that Encinas had bloodshot, glassy eyes and the he smelled of alcohol. When asked how much he had to drink Mr. Encinas replied the he had not been drinking. He had dropped somone off who had been drinking and that is why the vehicle smelled of alcohol.

Encinas was asked to exit the vehicle. The officer noted an odor of alcohol coming from the suspects breath. He perfrormed the HGN test and observed 4 of 6 clues (indicating the driver had likely consumed alcohol). Encinas declined any further roadside tests and elected not to take a breath alcohol test.

Officers also testified that Encinas did not fumble for his wallet or seem disoriented. He was steady on his feet and did not have slurred speech. Playing of the video of the arrest showed that the officer had not properly performed the HGN and thus could not be used to determine PC to arrest.

In rendering its decsion the Court of Appeals noted:

The probable cause needed to conduct a DUI arrest requires that the officer have knowledge or reasoanably trustworthy information that the suspect was actaully in physical control of a moving vehicle while under the influence of alcohol, to a degree which renders him incapable of driving safely. (This is analogous to Washington DUI standard of “affected to an appreciable degree.)

As has been found in Washington DUI cases, when the evidence shows only consumption, but not impairment, this is insufficent to support an arrest for DUI.

Tagged with: arrest • Bothell DUI Attorney • Constitutional Rights • Drunk Driving • DUI • dui arrest • DUI Cases • DUI Law • DWI • Everett DUI Attorney • Evidence • false arrest • Law • Mill Creek DUI Attorney • Police • probable cause

What does Padilla v. Kentucky mean for DUI attorneys?

On April 12, 2010, in Caselaw, Constitutional Law, Criminal Law, DUI, DUI Attorney, DUI Law, DUI News, Everett, Everett DUI Attorney, Snohomish County, United States Constitution, Washington State Constitution, by Scott W. Lawrence, Esq.

The recent United States Supreme Court ruling in Padilla v. Kentucky, 599 U.S. ____ (2010) held that the Sixth Amendment requires defense counsel to provide affirmatve competent advice to a noncitizen defendnat regarding the immigration consequences of a guilty plea. Absent such adivce a noncitizen may raise a claim of ineffective assitance of counsel.

Deportation is a criminal penalty not a collateral consequence of a conviction. Professional standards for defense counsel require the attroney to investigate and advise noncitizens on the immigration consequences of the dispostion of a criminal case. Furthermore, defense counsel is required to affirmatively offer advice on the consequences of conviction and cannot simply sit in silence on the issue.

Mr. Padilla was a lawful permanent resident immigrant who plead guilty to transportation of a large amount of marijuana in his tractor trailer. As a result of his plea he faced deportation. Mr. Padilla calimed that his counsel advised him that he didn’t have to worry because he had been in the county so long. Mr. Padilla further stated that he relied on this statement when deciding whether or not to plead guilty.

In Mr. Padilla’s case the court found that removal as a consequence of his conviction was clear and that any failure to advise him of this falls below an objectively reasonable standard of representation. As such, Mr. Padilla’s Sixth Amendment right to adequate counsel was violated.

What does this mean for those of us handing DUI defense cases? The immigration consequences in a drug conviction are much clearer than those in DUI cases. While DUI is not currently considered grounds for deportation depends on the noncitizens curtrent status. If the individual is in the county illegally the answer is clear. Any conviction can be grounds for deportation. On the other hand, if someone has any type of legal status the results of a single DUI conviction are much less clear. There is also some concern that multiple DUI convictions can open up the possibility of deprortation as a “mental illness” or some other grounds.

Fortunately for those of us practicing DUI law in Washngton there are some great resources. If you are trying to determine the immigration results of any conviction you should start with the Washington Defender Association immigration resources. There are lots of helpful printed materials to help you better understand how ICE and the federal courts approach criminal convictions. WDA’s immigration attorneys are a great resource as well.

If you are a noncitizen charged with DUI (or any crime) it is essential that you hire a proven DUI attorney that understands immigration issues.

Tagged with: Constitutional Rights • Drunk Driving • DUI • DUI Cases • DUI Law • DUI News • DWI • Everett • Everett DUI Attorney • Immigration • Mill Creek DUI Attorney • News • Right to Counsel • United States Constitution • Washington State Supreme Court

Lynnwood Municipal Court “Fingerprints & Photographs Required”

On September 23, 2009, in Bothell, DUI Law, Lynnwood, Mill Creek, Snohomish County, Washington State, by Scott W. Lawrence, Esq.

Arrested in Lynnwood?

If you have been arrested and/or cited in the City of Lynnwood you may have received a yellow slip of paper directing you to report to jail for formal booking. The notice states: “Prior to your scheduled arraignment you must report to the Lynnwood Police Department jail to be fingerprinted and photographed. You must report on Tuesdays, Thursdays or Saturdays between 11:00 am. and 3:00 pm. Bring your citation with you.”

When an individual is arrested the police may record identifying information of the suspect, such as a physical description, fingerprints or “mug shots.” However, once you are released from custody you cannot be compelled by the police to return for the purpose of providing this information. That doesn’t mean they can’t ask. If you want to spend your time going to the police station to submit to these invasive procedures no one can stop you. But, in my opinion, there are better ways to spend a day.

If the police approach you about this you should immediately ask to contact your attorney. On the other hand, under certain circumstances, a court may issue an order compelling you to provide fingerprints, or other evidence. Again, contact your attorney if you are served with such an order.

To be clear, this is much different than your Sixth Amendment right to an attorney and your Fifth Amendment right to remain silent. If you are contacted by the police you should always ask if you are free to leave. If you are, then leave. If not, then assume you are under arrest. If you are under arrest you should always exercise your right to an attorney and never answer questions or take tests without consulting an attorney first.

Also, if you are under arrest the officer may conduct a search of your person and belongings. Do not obstruct the search. Never consent to any search (Did I say never? I meant never, ever, ever…). If the officer has authority to search he or she will do so with or without your permission. On the other hand, if the officer lacks authority to search (and you have not consented) it may lead to the exclusion of any and all evidence.

In general it is always a good idea to consult an attorney before talking to police. If you have received one of these notices and feel compelled to comply please consult a Lynnwood Criminal Defense Attorney to discuss your decision before contacting the police department.

Tagged with: Constitutional Rights • Courts • DUI • DWI • Evidence • Fingerprints • Lynnwood Police • Mug Shot

Quick! Get a pro tem. Judge unavailibility not an adequate reason to deny speedy trial.

On October 4, 2009, in DUI Law, Washington State, by Scott W. Lawrence, Esq.

Changes in the Washington State time for trial rules in 2003 have caused many criminal defense attorneys to comment “there is no such thing as ‘speedy trial’ anymore.” Fortunately, that is not entirely true.

The Washington State Supreme Court, in State v. Kenyon, recently addressed the question of whether the lack of an available judge is good cause to continue a case beyond the speedy trial period. Certain time periods are excluded when computing “speedy trial.” Continuances granted for “unavoidable” circumstances beyond the control of the court, qualify as one of these excluded periods. CrR 3.3(e)(8). In general, the court is given wide latitude in deciding whether good cause exists for a continuance. A trial judge’s decision will only be overturned if the ruling was “manifestly unreasonable, or exercised on untenable grounds, or for some untenable reasons.”

After several continuances Keyon refused to further waive his right to speedy trial and demanded a trial. In the two department Mason County Superior Court, one judge was already scheduled for trial and the other judge was unavailable due to a pre-scheduled vacation. The trial court continued Kenyon’s case based on judge unavailability.

The Court of Appeals upheld the lower court’s decision. The appeals court recognized “court unavailibity” was similar to ”court congestion” and, under the previous time for trial rules, court congestion was not ”good cause” for a continuance. However, this court questioned the continuing viablity of this view under the post-2003 version of CrR 3.3. Ultimately the trial court’s decison and Kenyon’s conviction were upheld.

The Supreme Court disagreed. The court did agree that judge uanavilibilty was identical to court congestion and, under the current rule, a court may grant a continuance due to congestion. However, it must make a record of the unavailability of judges and courtrooms and the availability of judges pro tempore. Thus, a court must take affirmative steps to address court congestion. In the present case the trial court made no such record. “Here, the trial court should have documented the availability of pro tempore judges and unoccupied courtrooms. The failure to do so violated Kenyon’s right to a speedy trial.”

Judge unavailibilty alone is not sufficient to allow a continuance. Because Keyon’s right to a speedy trial was violated the court dismissed all charges.

The bottom line is that courts must make reasonable efforts to alleviate roadblocks to speedy trial, at least as they relate to court or judge unavailibility. In the era of sweeping budget cuts overburdened courts are going to be forced to decide between finding a courtroom and a pro tem or dismissing your case.

Click here for a complete version of State v. Kenyon.

13 Ways to be in Physical Control of a Vehicle

On October 5, 2009, in DUI News, by Scott W. Lawrence, Esq.

Safely off the Roadway?

Did you know you can be found guilty of “DUI” simply by sitting behind the wheel of your car while over the legal limit? “Physical Control” is essentially the same crime as DUI without the driving element (.08% or higher within 2 hours of being in control of a vehcile). The potential and minimum punishments are identical to DUI.

In Washington there is a defense to Physical Control. The burden of proof is on the defendant to show he or she ”moved safely off the roadway prior to pursuit by law enforcement.” Sounds pretty straight forward. However, juries are given little guidance as to what exactly this means.

In a recent case, the Arizona Supreme Court addressed the problem of defining “Physical Control.” While the physical control laws in Washington and Arizona are not identical, and Arizona does not appear to offer the same statutory defense, some of the analysis may be helpful in arguing Physical Control in Washington. Arizona v Zaragoza, 209 P.3d 629 (2009) announced thirteen factors for a jury to consider when deciding whether an individual is in physical control of a vehicle.

Arizona applies a “totality of the circumstances” test to the question of whether the defendant is in physical control of the vehicle. Specifically, the jury is to consider the totality of circumsatnce shown by the evidence and whether the defendant presented a real danger to any person. The thirteen factors are as follows:

Whether the vehicle was running;
Whether the ignition was on;
Where the ignition key was located;
What position the driver was found in the vehicle;
Whether the person was awake or asleep;
Whether the vehicle’s hedalights were on;
Where the vehicle was stopped;
Whether the driver had voluntarily pulled off the road;
Time of day;
Weather Conditions;
Whether the heater or air conditioner was on;
Whether the windows were up or down;
Any explanation of the circumstances shown by the evidence.

So, how does this apply to Washington? Washington State’s “safely off the roadway” defense, codified in RCW 46.61.504, would seem to implictly include these factors. They certainly could be helpful when considering both; (1) if a an indvidual was actually in control of a vehicle, and (2) whether that individual can establish the statutory defense necessary to negate the charge. (Though, I must admit, I’m not sure how factors 11 and 12 contribute to the analysis.) Arguably these factors should be included in any physical control or “safely off the roadway” jury instruction. Absent this they form a great structure to craft the theory of your case around.

Everett police officer charged in shooting of suspected DUI driver

On October 28, 2009, in DUI News, Snohomish County, Washington State, by Scott W. Lawrence, Esq.

Fortunately for the citizens of Mayberry, Barney only has a 6-shot revolver.

Everett police officer Troy Meade, has been charged with manslaughter in the June 10th shooting of Niles Meservey, 51. Snohomish County Deputy Prosecutor Mark Roe indicated that the use of deadly force was not justified in this case.

Meservey was shot seven times from behind while boxed in by three cars. Witnesses indciated that Meservey posed no immediate threat or imminent danger to anyone at the time he was shot. Mead had first used his tazer on Meservey through the open driver’s window of Meservey’s Corvette. When that didn’t deter Meservey the officer allegedly stated “Time to end this,” then opened fire on the Corvette.

Meade is an eleven year veteran of the Everett Police Department. He was involved in the shooting of another suspect in 2006. That shooting was ruled justified by Roe.

This marks thes first time a Snohomish County officer was been charged in relation to a shooting in the line of duty.

Tagged with: Crime • DUI • DWI • Everett • Misconduct • Police • Shooting

Go figure…a “Prior DUI” actually means an offense committed before the current DUI.

On October 29, 2009, in DUI Law, Snohomish County, Washington State, by Scott W. Lawrence, Esq.

Washington Supreme Court in Olympia

Scott Winebrenner and Jesus Quezada were on deferred prosecutions in the City of Seattle for seperate DUI offenses. Both committed and were sentenced on new DUI charges. The Seattle Municipal Court judge revoked their deferred prosecutions and proceeded to sentencing.

The Assistant City Attorney argued that the new DUIs should be considered “prior DUIs” for sentencing purposes on the old DUI, becaue the new charges occurred before the date of sentencing on the older charges. As such, the City argued the defendant’s should be subject to the mandatory minimums for a 2nd DUI on the older charges. However, if correct, this could potentially set up a situation were an individual is sentenced twice for a second offense.

The issue for the Washington Supreme Court to decide was whether “prior offense” applies only to offenses that occurred before the current offense or whether “prior offense” includes all offenses the defendant has committed before sentencing. The Court ruled that the offense date is the relevant inquiry. A “prior” DUI is one that occurred prior to the date of the new offense.

To view entire opinion see: http://www.courts.wa.gov/opinions/pdf/812799.opn.pdf

Tagged with: DUI • DWI • Law • Statute • Washington Supreme Court

Man in Breathalyzer Costume Arrested for DUI

On November 2, 2009, in DUI News, by Scott W. Lawrence, Esq.

James Miller in his breathlyzer costume

James Miller, 18, was arrested for DUI around 2:30 a.m. Sunday morning apparently on his way home from a night of Halloween partying.

Miller was stopped for driving the wrong way on a one-way street in Oxford, Ohio. When officers approached, they found Miller dressed in a Breathalyzer costume. Miller blew into a real breathylyzer and recorded a blood-alcohol level of .158.

Miller was charged with DUI and underage drinking and released.

Tagged with: Bothell DUI Attorney • Drunk Driving • DUI • DWI • Halloween • Minor • News • United States

Woman Calls 911 to Report Herself for DUI

On November 4, 2009, in DUI News, by Scott W. Lawrence, Esq.

On November 3, a Wisonsin woman called 911 to report a drunk driver. This happens often enough that it usually is not a newsworthy event. What makes this case unusual is the drunk driver she was reporting was herself.

Dui.com reports:

A 911 dispatcher in Neilsville, Wisconsin received a phone call from a woman reporting a drunk driver. When asked if she was following the suspected impaired driver, the woman replied “I am them”.

Mary Strey, 49, admitted being drunk after “drinking all night long” and was concerned about hurting someone. The dispatcher instructed her to pull over and turn on her emergency flashers. Clark County Sheriff’s Chief Deputy Jim Backus said Strey was found about three miles northeast of Neilsville, in central Wisconson. Her phone call, and the fact that she had a blood alcohol content twice the legal limit, lead to charges of driving under the influence in Wisconsin.

Chief Deputy Backus said DUI self-reporting is rare.

Ironically, she might be entitled to a “safely off the roadway” defense in Washington as she moved off the roadway before being pursued by law enforcement officers.

FYI – “don’t call 911 on yourself” is not included in my Top Ten Ways to Avoid a DUI page, but I’m thinking about adding it.

Click here to listen to the entire 911 call.

Tagged with: 911 • Bothell DUI Attorney • Drunk Driving • DUI • DWI • News • United States

Barabra Madsen named Chief Justice of the Washington Supreme Court

On November 6, 2009, in DUI News, Washington State, by Scott W. Lawrence, Esq.

Justice Barbara Madsen

Former public defender Barbara Madson has been named Chief Justice of the Washington Supreme Court. She has served on the court for 16 years and will be the third woman to hold this position. She will succeed the court’s longest serving Chief Justice Gary Alexander.

A local product, Justice Madson wass born in 1952 in Renton, Washington. She graduated from the Universtiy of Washington and attended law school at Gonzaga University. After passing the bar she worked as a public defender in King and Snohomish Counties before moving on to the Seattle City Attorneys office. In 1998, Justice Madsen was appointed to the Seattle Municipal Court bench.

For more infomation on Justice Madsen you can check out her biography on the Washington Courts site and the Washington State Supreme Court Blog has compiled a list of some of her more notable decisions.

Tagged with: Courts • News • Washington State Supreme Court

Drunk Driver’s Defense: “Dude, I do this every night.”

On November 6, 2009, in DUI News, by Scott W. Lawrence, Esq.

An Indiana Trooper pulled over a Dodge pickup driven by Zachary Duis, 24, based on a citizen’s tip that he was driving erratically. The aptly named Duis reportedly offered an unusual defense, “Dude, I do this every night; I’m straight up and not drunk!”

Needless to say the trooper was less that impressed and arrested Duis for DUI (and two misdemeanor warrants). Duis’ was transported to the Portage Police Department where he allegedly blew nearly four times the legal limit of .08.

Mr. Duis, you have the right to remain silent. Use It!

Tagged with: Crime • Drunk Driving • DUI • DWI • News

Police lieutenant charged with Hit & Run and DUI

On November 10, 2009, in DUI News, by Scott W. Lawrence, Esq.

The Atlanta Journal-Constitution reported on November 4, 2009:

Cobb County police lieutenant was charged with driving while drunk after a hit-and-run crash in Kennesaw.

On Oct. 26, Lt. Robert A. McGee was off duty when he was involved in a minor accident around 5:19 p.m.,on Chastain Road and George Busbee Parkway, police spokesman Sgt. Dana Pierce said.

McGee, 45, is being investigated by the Cobb Public Safety department’s internal affairs division and has been charged with misdemeanor DUI, hit and run and following too closely, Pierce said.

McGee turned himself in to the Cobb County jail late Monday afternoon, and was released about an hour later on $3,500 bond.

McGee, a 17 year vetran of the department, has been reassigned to the Animal Control Unit. Apparently this happens more than one would think. See the following forsome examples:

http://hamptonroads.com/2009/11/va-beach-police-officer-reports-jail-serve-dui-sentence

http://www.toledoonthemove.com/news/story.aspx?id=374746

http://www.roanoke.com/news/roanoke/wb/225745

http://www.duiattorney.com/news/6057-utah-police-officer-resigns-following-dui

Tagged with: Crime • Drunk Driving • DUI • DWI • News • Police

DUI emphasis patrol officer goes to jail for, you guessed it, DUI.

On November 11, 2009, in DUI News, by Scott W. Lawrence, Esq.

Source: Virginia Beach Police Department

Virginia Police Officer Bryan K. Womble, 37, began serving a five day sentence for hit and run and DUI on Monday. Womble was a member of the Police Department’s Traffic Enforcement Team specializing in DUI enforcement.

Womble was arrested on June 20th after a crash with another vehicle and registering a 0.15 blood-alcohol concentration.

At trial Womble testified that he did not mean to flee the scene, but was disoriented from the crash. He also stated that he had only started drinking a month before the incident and did not drink before that.

In addition to the jail time, Womble’s driver’s license was suspended for one year, he was fined $500, ordered to attend alcohol safety awareness classes and use an ignition interlock device for the next six months.

Womble was in the news about a month before his own DUI arrest wehn he arrested former NFL player Bruce Smith for DUI.

The Virginia Beach Police Department will now begin the administrative process to decide whether or not Womble will remain with thier agency.

According to WVEC.com, the Commonwealth’s Attorney Office has stated that all cases involving Womble as an arresting officer will go forward and that he would still be called as a witness regardless of whether he is fired.

Tagged with: Drunk Driving • DUI • Misconduct • News • Police

Suspected DUI driver shuts down Highway 18 in Auburn

On November 12, 2009, in DUI News, Washington State, by Scott W. Lawrence, Esq.

If you were stuck in traffic nightmare South of Seattle this morning it may have been due to the following incident.

The Seattle Times reported:

The Washington State Patrol says a drunken driver went the wrong way for a mile-and-a-half on Highway 18 before colliding head-on with another car.

The crash about 3 a.m. Thursday seriously injured the other driver. The wrong-way driver suffered minor injuries.

Westbound lanes of Highway 18 were closed for two hours.

No other details were readily available as of Thursday night.

Tagged with: Auburn • Crime • Drunk Driving • DUI • King County • News • Washington State Supreme Court

Hit and run may be resolved by civil compromise.

On November 12, 2009, in DUI Law, Snohomish County, Washington State, by Scott W. Lawrence, Esq.

Some imporant DUI-related rulings were handed down in Washington in October. State v. Stalker, decided October 19, 2009 by Division I involves a DUI and Hit and Run. This case is relevant to DUI Defense because of the significant number of Hit and Run charges that accompany DUIs. The trial court dismissed the Hit and Run on a showing of civil compromise. [A civil compromise, under RCW 10.22, allows the court to dismiss most misdemeanors if the victim declares that he or she: (1) has been paid back for all damages; and (2) does not wish to pursue criminal charges.]

In Washington, restitution cannot be ordered on a Hit and Run because the damages are not a result of the crime. The crime is leaving the scene of an accident, not the act of getting into the accident. On appeal, the Prosecution argued that the same reasoning should apply to a civil compromise of a Hit and Run. Payment for damages should not be considered restituion for the crime because the damages were not the result of any crime. In making this argument the prosecution urged the court to overturn prior precedent which specifically allowed for civl compromise of a Hit and Run.

The court of appeals agreed with the trial court and upheld the dismissal. Thus, civil compromise remains a great tool in resolving Hit and Run and many other crimes by taking discretion out of the prosecutor’s hands and placing it with the victim.

Tagged with: Court of Appeals • Courts • Crime • Division I • DUI • DWI • Hit & Run

Third Chicago officer accused of falsifying DUI reports

On November 13, 2009, in DUI News, by Scott W. Lawrence, Esq.

Illinois State’s Attorney’s Office is invetigating Chicago Officer Richard Fiorito for drumming up false DUI charges.

A federal lawsuit was filed against Fiorito by 21 people that allege they were roughed up and called anti-gay slurs by the Chicago police officer. As many as 20 more indivudals are expected to join the suit.

A video released Tuesday appears to show Fiorito bullying a DUI suspect during a June arrest. There are a number of problems with the way the field sobriety test were conducted. Despite the officer’s inability to conduct the tests correctly the driver seems to do fine. Despite his performance he is arrested for DUI.

A second video does not appear to support Fiorito’s allegations that the driver was swerving from lane to lane and narrowly missing parked cars.

On Novmeber 12, 2009, NBC Chicago reported:

Fiorito has been honored by Mothers Against Drunk Driving for the 313 DUI arrests he made between Jan. 1, 2007 and June 6, 2008.

He said that if he’s called to testify in these cases, he will assert his 5th Amendment rights.

Fiorito is the third Chicago cop accused of trumping up DUI charges. Last year, prosecutors dropped more than 50 cases after accusing Chicago officer John Haleas of perjury. Earlier this year, dozens of DUI arrests by officer Joe Parker came under scrutiny.

I previously practiced in a jurisdiction where all police vehicles were equipped with cameras. The videos above demonstrate why they should be mandatory in every jurisdiciton. Not only do offer unbiased evidence, they can be used to deter (or at least catch) police misconduct.

As the push to arrest more and more DUI driver’s continues, these type of incidents will become more prevelant.

Tagged with: Constitutional Rights • DUI • DWI • false arrest • Law • Misconduct • News • Police • video

Designated driver dies driving party-goers home.

On November 18, 2009, in Bothell, DUI News, Lynnwood, Snohomish County, Washington State, by Scott W. Lawrence, Esq.

This particular post hits a little closer to home than most. Those of you who know me are aware that I’m involved in the Seattle soccer scene as a referee, administrator, player and coach. I’m also the proud parent of a soccer player and referee. It is sad when one of our soccer family passes. Even more tragic is that this story involves someone so young, who apparently was trying to do the right thing by keeping his friends off the road and out of trouble.

The Daily Herald’s story, written by Katya Yefimova and printed on November 16, 2009 is contained below:

Friends mourn two killed in crash

LYNNWOOD — Brandon Norton was the designated driver Friday night.

The Meadowdale High School graduate, 21, had already taken a car full of people home from a party he attended and was driving three of his other friends.

They were northbound on North Road in unincorporated Snohomish County just past 2 a.m. on Saturday when the car went off the road and smashed into a tree.

He died instantly. So did Ehlo Blacknall, 20, who sat behind Norton.

Tyler Gilbert, 20, and Trevor Moore, 21, were rushed to Harborview Medical Center in Seattle with serious injuries.

Gilbert was allowed to go home on Sunday evening. Moore was in serious condition.

Detectives from the Snohomish County sheriff’s Collision Investigation Unit on Saturday determined that the car was traveling at 70 to 80 mph when it left the road. The speed limit in the area is 35 mph. The turn is posted at 25 mph.

“He was so young and had such a good life ahead of him,” said Laurie O’Donnell, Norton’s mom, on Sunday evening.

She recalled how her son’s face would light up when he smiled, ear to ear.

A memorial of flowers and candles surrounding a makeshift cross marked the place of the crash on Sunday afternoon. More than a dozen friends and family members looked on, many choking back tears.

A poster placed against a tree read “Proud to be Meadowdale Maverick.”

Norton was a star athlete, said Lizzi Mohs, 18, of Lynnwood.

Mohs and Norton struck a friendship in middle school and were close friends in high school.

“Brandon had a great laugh,” said Mara Eberth, 19, who also came to honor her friends’ memory.

Norton wanted to play soccer professionally. He had playoffs scheduled for Saturday morning, Mohs said. She said nobody saw him drink at the party on Friday night.

On Saturday, the sheriff’s office said in a press release that it is investigating whether alcohol may have been a factor in the crash.

Temperatures in the area dipped below freezing Friday night, and there could have been ice on area roads, according to the National Weather Service.

“They were the most fun-loving, outgoing people,” Mohs said about her friends.

Blacknall lost his father as a child and went through some rough times, Mohs said. He loved skateboarding and loved life.

Mohs and other friends drove to Seattle later on Sunday to visit Moore and Gilbert in the hospital.

She said Moore was a “guardian” to his loved ones.

“It’s all about family for him,” Mohs said.

When Moore was younger, he got into a bike accident and skinned one side of his face. He now has a white eyebrow, Mohs said. It made her smile.

Mohs learned from Moore’s family that he needed surgery. She and others just hoped he would get better soon.

Gilbert spent Sunday evening with his loved ones.

He and Blacknall were always together, always making friends laugh. They even shared a home, she said.

Kim Matzen watched from her porch on Sunday afternoon as friends came and went in a steady stream, bringing more flowers, balloons and candles.

Matzen’s house is on 176th Place SW, a cul-de-sac right before North Road makes the turn where Norton and Blacknall died. She’s seen many wrecks over the years; mostly cars in a ditch, but serious crashes too.

“Rarely do people go the speed limit,” she said.

The road is narrow and curvy, and there is little room to walk on the side of the road. The traffic, however, is always heavy and Matzen is worried about kids walking to school.

“There is no room for error here,” she said.

Norton was recently acquired by Starfire Premier Soccer League’s Big Daddy Hogslayer. The premier division team played for the league championship on Sunday night at Starfire Stadium in Tukwila, Washington. A memorial was held for Norton prior to the game. Romania won the match 2-1.

Tagged with: Accident • DUI • DWI • Lynnwood • News • Soccer

Brandon Norton story update…

On November 20, 2009, in DUI News, by Scott W. Lawrence, Esq.

Here are a couple of photos of the memorial at the crash site. Included in the array of items were multiple soccer balls, Norton’s High School jersey, several Seattle Sounders items and lots of photos and other personal items.

DSCF2234

Brandon Norton

DSCF2231

Tagged with: 911 • Accident • Drunk Driving • DUI • Lynnwood • Soccer

Fundraiser and Memorial for Four Slain Officers’ and thier Families

On December 7, 2009, in Legal News, by Scott W. Lawrence, Esq.

Four officers were brutalied murdered in Lakewood, Washington, last week while having coffee and preparing for their shifts. A friend, who also happens to be the mother of a Washington State Patrol Officer, sent me this:

IF you live near a Papa John’s Pizza place, PLEASE consider having a meal there on Tuesday (December 8), or Wednesday (December 9), as all profits from all Papa John’s nationwide will go to take care of the 4 families who have lost a parent. There are a total of nine children in these families.

If going to have pizza cannot be in your plans, please remember in your prayers, and hold in your heart, the families of these Lakewood, Washington officers who were slain in a senseless massacre last week. The memorial service will be held in the Tacoma Dome on Tuesday:

Mark Renninger.

Tina Griswold

Ronald Owens

Greg Richards.

Thank you sincerely.

Tagged with: News • Police

King County DUI Breath Testing Update

On February 15, 2010, in Uncategorized, by Scott W. Lawrence, Esq.

Seattle NPR station KPLU, 88.5 FM just aired a news piece on the state of breath alcohol concentration (BAC) testing in King County. BAC results have not been admissible in DUI cases since last year because of the many documented errors and misconduct by the Washignton State Patrol Toxicology Lab (see State v. Amach). King County Prosecutors have brought action to allow BAC reuslts to be admitted once again.

In King County, breath tests that measure blood alcohol level are not admissible as evidence in drunk driving cases. That’s true in many other counties as well. This all started two years ago when problems surfaced with the Washington State Toxicology lab. Now there’s a move to once again allow juries to consider blood alcohol concentration (BAC).

King County Prosecutor Dan Satterberg admits it’s been a challenge.

“We have to prove the case on the bad driving, field sobriety tests, on observations that the officer made of an individual and sometimes, if there’s not enough of those things, we don’t have a case that we can go forward on,” he said. He says that will mean more drunk drivers out on the road.

Satterberg insists the state’s toxicology lab, which was discredited for its sloppy handling of DUI evidence in the past, has cleaned up its act. A new director has conducted an audit and the breath testers have been recalibrated and received international accreditation.

“So all of the practices that the court found deficient have been taken care of,” he said.

Defense attorneys say not so fast. They acknowledge improvements have been made at the lab, but say they still question its independence.

“Part of the problem we have with forensic science all across the board is that it’s too closely associated with law enforcement,” says Kevin Trombold, a Seattle DUI defense attorney.

Trombold believes the state toxicology lab operates more as an arm of prosecutors than as an objective scientific enterprise . Prosecutor Satterberg disputes that.

Both sides will have an opportunity to make their case in the next few weeks when a three judge panel in King County considers a request to once again allow blood alcohol tests in court.

King county prosecutes 4000 drunk driving cases every year. © Copyright 2010, KPLU

The crux of the State’s argument is that the lab has received international accredidation. This is true, but only for the process of creating and validating the “simulator sloutions” used to calibrate the Datamaster machine. What the Prosecution fails to point out is that the lab, run by the Washington State Patrol, has not received accredidation in the breath testing process they employ. Thus, the reliability of any results of a BAC test in the State of Washington are still in question.

Prosecutor’s Reference to Defendant Asking to Call His Attorney Requires Mistrial

On April 5, 2010, in Caselaw, Constitutional Law, DUI, DUI Attorney, DUI Law, Everett, Everett DUI Attorney, Oregon, United States Constitution, Washington State Constitution, by Scott W. Lawrence, Esq.

The Defendant was convicted of DUII under Oregon law. Defendant attempted to call his family attorney ffrom his cell phone in the back of the police vehicle before his phone was taken away by officers. Upon arriving at the police station the Defendnat made several attempts to talk to his family attorney. Defendant also called his mother for a referral to other attorneys. Ultimatley he was unable to reach his attorney and declined the offer to call another attorney out of the phone book. Defendant then declined to submit to a breath test.

In pretrial motions the trial court ruled that there would be no mention of telephone calls as this was an invocation of Defendant’s right to counsel. In her opening statement the prosecutor made mention of the cell phone call from the back of the police car. The defense objection was overruled. On direct examination the prosecution elicited testimony that the Defendant wanted to call his lawyer before making a decision of whhether to submit to a BAC. The trial court sustained the resulting objection and admonished the prosecutor on the record. Defendant was convicted of DUII.

The Oregon Court of Appeals, in State v. Veatch, 2008 WL 4724420, overturned the conviction because the prosecutors comments during opening statements had an adversely prejudicial effect on the jury. The Defendant’s invocation of counsel is a protected statement under the Sixth Amendment to the United States Constitution and Article 1, section 11 of the Oregon State Constitution and a jury would liklely infer that a person arrested for DUII would not ask for an attorney unles he or she was concerned about failing the test.

Tagged with: Constitutional Rights • Court of Appeals • Drunk Driving • DUI • DUI Cases • DUI Help • DUI Law • DWI • Everett DUI Attorney • Law • Mill Creek DUI Attorney • Oregon Cases • Right to Counsel • Sixth Amendment • United States • United States Constitution

Are the Circumstances Surrounding Your Blood Draw Unreasoanble?

On April 5, 2010, in Caselaw, Constitutional Law, DUI, DUI Attorney, DUI Law, DUI News, Everett, Everett DUI Attorney, United States Constitution, by Scott W. Lawrence, Esq.

A recent Texas case addressed the reasoanbleness of the methods used to forcefully obtain a blood draw. In State v. Johnston, 2009 WL 3720156, the Defendant refused to submit to a blood draw. A warrant was obtained and a sample of her blood was obtained against her will. The sample was taken the police station where the Defendant was restrained by an officer. The officer who had taken the blood had completed extensive training as a Phelbotomist as had another of the officers that were present.

The trial court found that the seizure violated the Fourth Amendment’s reaosnableness requirement by not being taken by medical personnel in a hospital or medical environment. The Texas Court of Appeals upheld the supression. However, the COA was not nearly as troubled by the where the blood was taken or that it was taken by an officer. Rather the COA was disturbed that proper medical safeguards were not taken. Because the officers had not inquired of the Defendant’s medical history before taking blood, and that they failed to follow up on her condition afterwards, they had subjected her to an ujustified risk of medical harm.

The lesson for Washington attorneys is that we should be assuring whoever is taking blood draws from our clients is observing the proper procedures to assure our clients’ physical health, regardless of whether the blood draw is voluntarily given or obtained by warrant.

Tagged with: Bothell DUI Attorney • Constitutional Rights • DUI • DUI Cases • DUI Law • DWI • Everett DUI Attorney • Mill Creek DUI Attorney • United States

How much time does the officer need to give you to find a DUI attorney?

On April 9, 2010, in Caselaw, Constitutional Law, Criminal Law, DUI, DUI Attorney, DUI Law, Everett, Everett DUI Attorney, Mill Creek, Snohomish County, United States Constitution, Washington State Constitution, by Scott W. Lawrence, Esq.

A recent Minnesota Appellate case, State v. Beattie, 2009 WL 1751131, address this issue. In this case, the Defendant arrested for DUI and taken to the Crow Wing County jail. The Defendant was read his implied consent warnings and given a phone book to locate a DUI attorney. Several phone calls were made and when no one answered the Defendant left messages.

After six minutes the officer demand the Defendant stop his search and submit to a breath test. The Defendant refused. As a result the Defendant’s license was suspended and he was charged with a “refusal” DUI under Minnesota law. At trial, the Defendant’s motion to suppress the refusal was denied. The Defendant agreed to a stipulated trial and was ultimatley convicted while preserving his right to appeal.

The Court of Appeals overturned the conviction. Under the Minnesota Constitution, a person charged with DUI has the right to counsel before choosing whether or not to submit to a breath or blood alcohol test. This right is not unlimited and the Defendant is only entitled to a “reasonable amount of time” to locate an attorney. The court declined to say what amounts to a reasonable amount of time. Instead, the court should consider the totality of circumstances, including the underlying purpose for the right to counsel and whether the Defendant was continuing to make a good faith effort to reach a DUI attorney. Whether the time of day made the search for an attorney harder, and whether more time would affect the BAC results probative value, were given as important factors for trial courts to consider

In this case, the officer interfered with the Defendant’s ongoing good faith search. Less than one hour had elapsed since the driving and the Defendant was only given six minutes to conduct his search. Thus, the Court found that the Defendant’s right to counsel was not vindicated and the lower court decision was reversed.

Given that a defendant in Washington also has the right to consult with an attorney before deciding whehter or not to submit to a chemical test of his breath or blood, this smae reasoning should apply in Snohomish County DUI cases, as well.

Tagged with: BAC • Breath TEst • Constitutional Rights • Court of Appeals • Datamaster • Drunk Driving • DUI • DUI Cases • DUI Law • DUI News • DWI • Everett • Everett DUI Attorney • Mill Creek DUI Attorney • Police • Right to Attorney • Right to Counsel • United States Constitution

Everett Police Department sponsors soccer academy for low income families.

On April 20, 2010, in Uncategorized, by Scott W. Lawrence, Esq.

The Everett Police Department, Liga Hispana Noreste, Washington State Youth Soccer and a number of generous sponsors have collaberated to create the 2010 Casino Road Futbol Academy. This 2nd annual camp is scheduled for June 22 thru July 2 at Walter Hill Park.

A $10.00 registration fee will provide each player with a camp tee shirt and soccer ball. Lunch will be provided by the school district and local restaurants. If you would like to sponsor a young soccer player, donations can be sent to:

Everett Police Department
c/o Sgt. Manny Garcia
3002 Wetmore Ave
Everett, WA. 98201