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.

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.

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.

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.