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.

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.

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.

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.