DUI Washington Blog

The Fourth Amendment to the U.S. Constitution generally requires police to first obtain a search warrant before searching property.  For many years, police officers were allowed to conduct warrantless searches during or immediately after a lawful arrest. This exception has been known as a search, incident to arrest. In other words, the search follows an arrest.  However, the U.S. Supreme Court in a recent case, Arizona v. Gant, ruled that such a search was not lawful when the defendant had already been arrested and was in handcuffs.

Gant Ruling Changes DUI Search Guidelines

The Gant ruling is a radical departure from previous case law.  In a 1981 case heard by the U.S. Supreme Court concluded that police officers might lawfully conduct a vehicle search as soon as an arrest was made. There were two reasons commonly given. First, to this day, it remains important to remove any weapons contained in the car that the arrested person might try to use. Second, the police do not want an arrested person to conceal or destroy evidence that might be in the car. Based on these two things, it had been standard practice for almost 30 years for the police to search the passenger compartment of the vehicle, the trunk of a car and anything found in the car.

In Arizona v. Gant, Rodney Gant, who was arrested for driving with a suspended driver’s license, challenged the search of his vehicle as being unlawful. He was arrested for a traffic violation, handcuffed and locked in the back of a patrol car where he had no access to his vehicle. During the search, officers found some cocaine in the pocket of a jacket laying on the backseat.

The Court agreed that police are only authorized to search a vehicle in connection with a recent occupant’s arrest if the person is unsecured and could reach into the passenger compartment at the time of the search. The only exception our nation’s highest court authorizes is a search that’s connected with reasonable suspicion that the police will find evidence in the car that’s related to the reason for arresting the occupant.

Only time will tell how much impact Gant will have, but as things stand now, your Washinton State DUI car search incident to arrest may not have been legal and evidence that has been found from that search may be thrown out of court.

So Can an Officer Search my Car on Suspicion of DUI Without a Warrant?

No, this is no longer legal except for very limited situations.  If you are driving a vehicle, as in a Washington State DUI or reckless driving or racing case, and are subsequently arrested, the officer does not have authority to search your vehicle.

Washington State may still consider DUI as a gross misdemeanor, but not Canada. There, a DUI on your record is a felony. And felons don’t visit Canada even if their records have been clean for years. If a DUI shows up in a U.S. criminal database, your hopes of visiting Canada without securing a visa are probably dashed.

Canada Accesses U.S. DUI Information

So how is it that Canada has access to U.S. criminal databases? The access is part of post 9/11 information sharing between the two countries. Who would have thought that the effort to prevent terrorists from crossing the border, would create red flags for drivers who have made a DUI mistake in the past?

How to Restore Your Ability to Enter Canada After a DUI

There are three ways to get into Canada if you have had a DUI conviction in your past. You can apply for a temporary resident permit, but you must have an urgent reason for your visit—a sick family member, a business meeting. This is your only option if your DUI happened within the last five years.

If your DUI sentence ended more than five years ago, you can apply for an Approval of Rehabilitation. This process is paperwork intensive and includes your FBI file and state police records from every state you have lived in since you were 18 years old. Each offense must be explained. You also have to provide a complete list of home addresses and employers since the age of 18. The fees range from $200 to $1000 Canadian and can take up to a year. But once you have gone through this process you have a reasonable assurance that you can enter Canada.

For Americans who have had only one DUI that occurred more than 10 years ago, a person may be eligible for “Deemed Rehabilitation,” allowing complete access to Canada once again.

It is always recommended that you consult a Canadian immigration lawyer about any criminal offense, no matter how minor or how old before trying to enter Canada.  Without doing this it is impossible to know what will happen at the border.

In our office, people regularly ask us about the consequences of facing a Washington State DUI in regards to Canada.  As we are not Canadian attorneys and are not licensed to practice law in Canada, we refer our clients to:

Joshua B. Sohn
Embarkation Law Group
1.888.663.7474
Joshua@ELGCanada.com

Another Reason It Is Never Safe to Represent Yourself on a DUI charge

Your DUI charge may not have to become part of your record. It is never safe to represent yourself on a DUI charge. Hiring an experienced DUI attorney could prevent Washington DUI gross misdemeanor charges from becoming part of your record. Make sure you contact a DUI attorney before you incriminate yourself by making statements. This is your legal right, so don’t be afraid to exercise it.

Affidavits of Prejudice — A DUI Attorney Tool

Affidavits of Prejudice have been a tool used by Washington DUI attorneys to avoid a judge who the attorney or client does not believe can be impartial in the case.  This “affidavit” allows either the attorney or the client to remove one judge from the case.  It can only be used once in any criminal proceeding.  This means if you remove one judge, you can’t later remove a second judge. The Washington State Legislature passed legislation that went into effect on July 1, 2008. Known as second substitute House Bill (SSHB) 2557, this legislation is intended to further clarify the rules of affidavits of prejudice.

How SSHB 2557 Affected Washington DUI Court Proceedings

When this law went into effect, it changed the landscape for affidavits of prejudice in some courts in the Seattle, Washington area, because it established four legal issues that are not considered discretionary. These concerns for DUI attorneys are 1) the arrangement of the calendar; 2) The setting of an action, motion, or proceeding for hearing or trial; 3) the arraignment of the accused; and 4) the setting of bail or conditions of release. This means that you may still remove a judge even if they have  handled your arraignment, set your pre-trial conditions, set your trial dates or set the jury calendar.

Under the new law, if an affidavit of prejudice against a judge is filed in a timely manner, he/she is barred from setting bail, handling motions, overseeing a trial, determining sentencing or performing reviews.

However, we are uncertain if all judges are going to agree with this reading of the statute and we are fearful that some judges, once affidavited, will continue to make bail decisions on the case.. A timely filing of affidavit of prejudice is supposed to deny a judge any authority to act in a matter. We believe that once a judge has been affidavited that judge can no longer make any decision on the case.

Facebook Post Caused a More Severe DUI Sentence

You may want to be careful about what you post on Facebook. It isn’t quite a private as you may think. One 17- year old, Ashley Sullivan, found herself being sentenced as an adult because the judge was troubled by the message he saw in her Facebook posting.

Sullivan posted the photo with the title, Drunk in Florida, just a month after the she crashed into a brick pillar at an estimated speed of 56 mph in a 30 mph zone. The impact killed her boyfriend. Her blood tested 0.13%, above the legal alcohol limit of 0.08%.

Sullivan pled guilty to criminally negligent homicide and misdemeanor driving while intoxicated. She faces six month’s jail time and five years probation during which time she will be monitored for any alcohol consumption.

She also faces a wrongful death suit from the family of the young man who died in the crash.

Learn more about how the Facebook posting contributed to this woman’s DUI conviction.

If an Officer Suspects a DUI Expect to Be Pulled Over

When a police officer pulls you over, he/she must have a valid reason for doing so. This is known in legal circles as “probable cause.” In other words, the officer had to see you do something that indicates a possible DUI.

The National Highway Traffic Safety Administration (NHTSA) has provided law enforcement agencies in all states, including Washington, with a list of driving patterns they believe DUI drivers exhibit. If an officer sees one or more of these behaviors, he/she will use it as a reason for pulling you over.

DUI Indicators — Problems staying in the lane

• Weaving. The driver generally keeps the car on one side of the road but the driver over-corrects consistently, and even passes over the center line with the front and back tires on one side of the car.
• Drifting. The driver keeps the car traveling in a straight line but the wheel angle is slightly off and the car “drifts” across the line that defines the lane. This can also happen if a driver is tired or there is a carbon monoxide leak.
• Swerving. The driver may correct course gradually or abruptly. There are reasons a driver might swerve that have nothing to do with DUI. An animal darts across the road. An object is in the lane.
• Almost striking another vehicle or an object. The driver may pass unusually close to another vehicle or a fixed object while traveling at either slow speed or in pace with traffic.
• Turning with a wider radius than necessary on an inside curve. The driver crosses slightly into the oncoming lane as he/she makes the turn. NHTSA warns officers to stop any driver who displays this behavior.

DUI Indicators —Speed and Braking Problems

• Stopping too far from a curb or at the wrong angle. Are your parallel parking skills up to par?
• Stopping short of the white line or beyond it at an intersection. Are you new to an area? Driving at night in wet conditions and having trouble seeing the lines?
• Jerky or abrupt stops. Are road conditions wet and your brakes grabbing?
• Accelerating or decelerating rapidly with no reason to do so. Could you have trouble with the gas pedal?
• Alternating between accelerating and decelerating. Is maintaining a consistent speed a regular problem for you?
• Driving less than 10 MPH below the speed limit. Are you uncomfortable driving over 55?

DUI Indicators —Vigilance Problems

• Inconsistent signals. A DUI driver may forget to turn on signals or may turn on the wrong signal.
• Driving into oncoming traffic or going the wrong way on a one-way street. Someone driving in an unfamiliar neighborhood could make this mistake.
• Failure to respond appropriately to traffic signals. Watch out if you don’t notice that the light has turned green. This is listed as a warning sign for DUI.
• Stopping in the lane. A DUI driver may be asleep at the wheel. But this behavior is also seen when a person is lost or confused.

DUI Indicators —Judgment Problems

• Illegal turns. Research suggests that DUI drivers are more likely to make an illegal turn that a sober driver.
• Driving off the designated roadway. If a driver is driving on the shoulder, off the edge of the road or in a turn only lane, officers have been trained to suspect this behavior.
• Unusual behavior. Anything from throwing something from your vehicle to stopping to urinate along the roadside are cited by NHTSA as reasons to suspect DUI.

DUI Indicators —General Behavior and Appearance

• Gripping the steering wheel tightly. Are road conditions icy?
• Slouching in the seat.
• Staring straight ahead with fixed eyes. Could you be getting tired, and it’s time to stop at a rest-stop for a nap? Could your blood sugar be getting too low?

As you can see, there are many situations that could make you look like a DUI driver when you aren’t. If you are charged with a DUI in Washington state, you need a DUI attorney who is knowledgeable on your Washington DUI rights and understands how best to represent your case.

Don’t let a DUI charge go on your record if you weren’t driving under the influence of alcohol or drugs.

As DUI attorneys many people ask us whether or not they should take the field sobriety tests. In Washington state, field sobriety tests are voluntary, and you need not perform them. However, if you do decline to perform these tests, it could be used against you during the trial.

How to Refuse a DUI Roadside Test without It Hurting You in Court

There is a way to avoid a refusal to perform field sobriety tests being used against you—ask to speak to a lawyer before saying anything else. If you ask to speak to an attorney, an attorney will advise you (and the often the police officer) that you are not interested in performing these tests. If that occurs, then it is unlikely that the refusal to do these FSTs can be later used against you.

Another method you can use to prevent your refusal to take FSTs used against you later is to politely say “my attorney advised me not to take these field sobriety tests.”

One final method of not taking these tests is to hand the officer your attorney’s business card.

Unfortunately, most people are not familiar with their legal rights prior to being arrested for DUI; therefore they end up taking these field sobriety tests. So, the question then becomes, what do these field sobriety tests mean?

According to the National Highway Traffic Safety Administration (NHTSA), only three DUI field tests have scientific validity behind them. However, even that science is subject to challenge. Any other test an officer asks you to perform in the field has not been validated. Let’s look at these three tests.

Horizontal Gaze Nystagmus (HGN)

Nystagmus is a scientific term that describes an involuntary jerking of the eyeball. Nystagmus can be classified as either horizontal or vertical gaze nystagmus. Certain chemicals like alcohol and drugs can exacerbate nystagmus. According to NHTSA (but subject to challenge), the higher the concentration of certain chemicals in the blood, the more pronounced the jerking motion of the eyeball becomes.

NHTSA researchers found this test, when used alone was accurate 77% of the time for predicting BAC levels of .10 or higher. Washington state courts will not allow this test into evidence as demonstrating a specific breath-alcohol level. However, most judges will allow the HGN into evidence to show that an individual has consumed alcohol.

Because the results can vary so widely, a DUI attorney must know the various nystagmus and their symptoms thoroughly. If the officer that conducted the test has not been properly trained, he could misdiagnose HGN. A knowledgeable DUI attorney will identify any inconsistencies in procedure and be able to attack the validity of the test.

Walk and Turn (WAT)

Unlike the HGN test which depends on involuntary movements of the eyeball, the Walk-and-Turn test is a divided attention test. The theory behind this test is that most unimpaired individuals can divide their attention between simple mental tasks and physical tasks. However, because the Walk and Turn test is based on balance, some people will not be able to perform it well under any circumstances.

If you agree to perform this test, you will be told to take nine steps, heel-to-toe along a straight line. Then you will be asked to turn around on one foot and walk back to your starting point placing each foot down heel-to-toe until you reach your starting point.

During this exercise, the officer will be looking for eight things. Do you have trouble keeping your balance while you are listening to the instructions? Do you start before the officer has finished the instructions? Do you stop so you can regain your balance? Do you fail to touch your heel to your toe at any point? Do you step off the line? Do you use your arms to keep your balance? Do you make the turn correctly? Do you take the right number of steps?

In a 1981 study NHTSA researchers found this test when used alone was accurate only 68% of the time for detecting BAC levels of .10 or higher. A later study in 1998 indicated that if you have trouble with two or more of these eight indicators, the test is 79% accurate at detecting BACs of 0.08 or greater. Again, this test will not be allowed into evidence to show a specific BAC level.

One Leg Stand (OLS)

The One-Leg Stand test requires you to stand with one foot lifted off the ground about six inches. You are then asked to count up from a thousand (one thousand-one, one thousand-two, etc.) until you are told to put your foot down. This is another divided attention test.

The officer will observe you for 30 seconds. During this time, the officer will watch for four things: 1) Are you swaying? 2) Are you using your arms for balance? 3) Do you hop to keep your balance? 4) Have you put your foot down before time is up?

In 1981, NHTSA researchers found this test, when used alone was accurate only 65% of the time for detecting BAC levels of .10 or higher. A more recent study in 1998, indicates that if you do two or more of the things the office is looking for, there is an 83% chance that you will test with a BAC of 0.08 or higher.

You can expect these three tests to be part of standard procedure if you are stopped for a suspected DUI. Again, our advice is to request to speak to an attorney before doing these tests. An attorney most likely will advise you NOT to take these field sobriety tests. If a private DUI attorney is not available, we suggest that you speak to the public defender.

DUI arrests by Seattle police officers are charged by the Seattle City Attorney’s office in Seattle Municipal Court. Like all courts, Seattle Municipal Court has its own quirks, which can be frightening to the inexperienced. Learning something about the procedures you or your loved one might face in Seattle Municipal Court can help you feel more comfortable and prepared to appropriately handle your case.

First Court Appearance: The Intake Hearing

In Seattle Municipal Court, the first appearance is called an intake hearing rather than an arraignment. These hearings are typically scheduled at 9:00 a.m. in courtroom 302 at the Seattle Justice Center. However, occasionally, a case is assigned to a Saturday intake hearing which take place at a courtroom in the King County Jail.

At the intake hearing, you will be asked to enter a plea to the charge. You should plea NOT GUILTY. After accepting your plea, the judge will address what, if any, conditions should be imposed on you while the case is pending.

It is common for Seattle DUI prosecutors to request that anyone accused of a Seattle DUI post bail. If the judge agrees, you could be taken into custody from court until you are able to arrange to have bail posted. It is important to discuss this scenario with an attorney experienced with Seattle DUI cases so that you can be prepared and avoid being booked into jail. We recommend that you come to court prepared to post bail. We can discuss this with you further and help make arrangements with a reputable bail bondsman.

Additionally, Seattle DUI prosecutors regularly ask for other conditions to be imposed on drivers accused of DUI. These conditions can include an order that you not operate any vehicle unless it has an ignition interlock device installed.

Finally, in some cases, Seattle DUI prosecutors have been known to recommend the installation of alcohol detection devices in the home of a driver accused of a Seattle DUI and place the accused under house arrest. And judges in the Seattle Municipal Court are known for imposing these restrictions-even on first offense DUIs.

We recommend that you contact a DUI attorney immediately, so you have representation at this first court appearance. Otherwise, without representation, you are more likely to face one of the harsher release conditions.

Second Court Appearance: DUI Pretrial Hearing(s)

The first pretrial hearing (yes, there can be more than one) is typically scheduled about one month after your intake hearing. During this time, an experienced Seattle DUI attorney will obtain the police reports, witness statements, possible video evidence and start negotiations with the prosecutor. Your DUI attorney will look for problems with the evidence that empowers negotiating for a reduction in the charges or even dismissal. Your DUI attorney may also negotiate a DUI reduction based on equitable reasons such as a clean record or a low breath test.

It is common that your case will not be ready for resolution at the first pre-trial hearing. Your attorney may need additional time to obtain additional evidence and/or negotiate further with the prosecutor. Typically, Seattle DUI cases are continued at the first pre-trial hearing another 30 or so days.

Ready for Trial: Readiness Hearing

If it is not possible to resolve your case at the pre-trial hearing stage, youyou’re your attorney may elect to set the case for a trial. If so, the Seattle Municipal Court judge will schedule a readiness hearings one to two weeks before the scheduled date for your Seattle DUI trial. Seattle Municipal court does not require your presence at this hearing unless you have failed to appear at one of your previous court appointments. This hearing gives both the prosecutor and your defense attorney the opportunity to ask for a continuance if they are not ready to go to trial. It is also not unusual for cases to be continued at readiness due to scheduling issues with witnesses, the court, or the attorneys.

Evidence Suppression & Legal Issues: Motion Hearings

Seattle Municipal Court likes to be efficient. Often, instead of scheduling a separate hearing to hear arguments on pretrial motions, Seattle judges prefer to hear the motions on the day of the trial. They are willing to hold the motions hearing prior to the trial date if the motions might resolve the case and make a trial unnecessary.

A motions hearing in a DUI case gives the DUI Prosecutor and your attorney the opportunity to bring legal motions before the court connected to the case. In the process of defending you, your DUI attorney will move to have evidence suppressed or limited.

Trial: Judge or Jury

A DUI trial in Seattle Municipal Court can be a Judge (or Bench) trial or a Jury trial. A Bench trial is before a judge who will listen to all the evidence and the arguments of the attorneys and make a decision about guilt. A Seattle DUI Jury trial would be heard by six people from the community who will make the final decision about guilt.

A trial for a Seattle Municipal Court DUI may take many days to complete. It is common for the court to schedule several trials for the same day. Plan on waiting hours, and even days before your DUI case is resolved.

It has almost been two years since I visited with Ross Reynolds on KUOW’s program The Conversation. The topic under discussion was whether Washington state DUI laws are tough enough to keep drivers from getting behind the wheel.

Since that time, Washington has had two new DUI laws go into effect. RCW 41.61.502, which went into effect on July 1, 2007. Prior to this date, if you were over 21 and stopped on suspicion of DUI and tested for a blood count above 0.08, it was a misdemeanor.

While most often a Washington DUI is still a gross-misdemeanor, this law changed the Washington DUI scene by adding a clause that stipulates that a person that has four or more prior DUI offenses within the last 10 years will be charged with a class C felony. Anyone who has been convicted of vehicular homicide while under the influence of alcohol or any drug is also automatically charged with a class C felony. The law also made it clear that out-of-state offenses could be used for the record.

Another DUI law went into effect January 1, 2009 which slightly changed Washington’s existing implied consent law. This law already stated that if a person operated a motor vehicle within the state of Washington that their consent is assumed when an officer requests a breath or blood test for alcohol or drug levels. The law stipulates that an officer that has reason to believe you have been driving under the influence of alcohol or drugs shall notify you that if you refuse to be tested the following will occur: 1) Your driver’s license will be revoked for at least one year; 2) your refusal to take the test may be used as evidence against you in a criminal trial.

The officer who pulls you over is obligated to tell you the consequences of testing positive for DUI—such as, suspension of driving rights for 90 or more days and eligibility for an ignition interlock driver’s license. The addition of the ignition interlock license is in my opinion a very good addition to the Washington State DUI law. It is practical in that it allows people to keep legally driving after a Washington DUI arrest, while also being a deterrent in preventing future DUIs from happening.

There are those who argue that these changes in Washington DUI laws aren’t adequate. They claim that stiffer penalties would offer a stronger deterrent. In the two years that have passed since my radio appearance, I haven’t seen any evidence that these tougher laws have changed anything. We still see clients who weren’t aware of the laws. We also see clients who experience enough anxiety over their first DUI experience to learn from the incident.

I have advocated requiring all new driver’s license applicants in the state of Washington to attend a victim’s panel before they can secure a driver’s license for this state. Other’s advocate the installation of ignition interlocks on all state registered vehicles. The first idea would help those who have a conscience think twice about the effects on others of DUI driving. The second would help those who can’t evaluate their level of intoxication. However, this second idea, the installation of ignition interlock licenses punishes not only those who have offended, but also those who have not. In my opinion, this would go too far and invade our liberty too much. Why have an ignition interlock on the vehicle of someone who never drinks or drink’s responsibly?

Do we need tougher Washington DUI laws? I’m not convinced that they would make a difference. However, educating people about the current DUI laws, penalties and very real consequences of driving intoxicated could go a long way to helping prevent future DUIs from ever occurring.

*Geoff Burg has been practicing criminal defense law since 1994. The majority of his time is spent representing people accused of drunk driving offenses and issues surrounding these charges. If you need assistance with a DUI charge, visit http://www.duiwashington.com , call 206-467-2607, or email Geoff at Geoff@GLBLaw.com for more information on what you can expect from the Law Offices of Geoffrey Burg, LLC.

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