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.

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.

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.

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.