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.

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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.

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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.

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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.

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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.

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