DUI Washington Blog

At the Law Offices of Geoffrey Burg, we work extensively on judicial campaigns because we believe a high quality judiciary is essential to achieving just results for our clients.

Patricia Fulton and Geoffrey Burg are very active in an organization called Citizens for Judicial Excellence. With the other members of this organization, we have spent literally hundreds of hours studying the records of current judges and reviewing the credentials of new judicial candidates. We and our colleagues are in court virtually every day and have an opportunity to observe dozens of judges first hand.

We have endorsed several candidates who are running for election right now, and their names will be on the General Election ballot. We know how difficult it is to cast an educated vote in judicial elections, so we hope you will appreciate our recommendations.

Depending on where you live, you will have an opportunity to vote for one of the following candidates:

Seattle – Ed McKenna is our choice in this race for Seattle Municipal Court Judge. Ed’s opponent, Edsonya Charles, is the incumbent; however, she recently earned the distinction of being rated the worst performing judge in all of King County on a recent Bar Association survey of attorneys. We believe the Seattle Municipal Court is badly in need of improvement, and the people of Seattle deserve better. We recommend Ed McKenna. www.edmckennaforjudge.com

Southwest – If you live in any of the following areas, you can vote for our pick, Susan Mahoney: Burien, Federal Way, Normandy Park, Des Moines, Seatac, Tukwila, or Vashon Island. Susan has been rated Outstanding by the Municipal League of King County and Exceptionally Well Qualified by the King County Bar Association. Her opponent, Judith Eiler, is the incumbent, but has been rated Not Qualified by the Bar and was recently suspended from office by the State Supreme Court. Again, we believe the citizens deserve better. We recommend Susan Mahoney. www.mahoneyforjudge.com

Southeast – If you live in the southeastern part of King County, you can vote for Matt Williams, who is our overwhelming choice in this district: Kent, Renton, Auburn, Black Diamond, Maple Valley, Covington, Algona, Pacific, and Enumclaw. Matt has an unmatched level of legal experience as a prosecutor, trial practice professor and a nationally known expert on courtroom procedure. We are fortunate Matt wants to serve South King County as a judge, and he has been rated Exceptionally Well Qualified by the King County Bar Association. We recommend Matt Williams. www.electmattwilliams.com

Northeast – If you live anywhere on the Eastside, you can vote for John O’Brien: Bellevue, Issaquah, Sammamish, Redmond, Snoqualmie, North Bend, Fall City, Duvall, Bothell, Yarrow Point, Woodinville, Carnation, Mercer Island, Kirkland, Medina, Hunts Point, Clyde Hill, and Newcastle. John has been an outstanding trial lawyer and community leader on the Eastside for 29 years. He has also been endorsed by former Governor Gary Locke and Supreme Court Justice Tom Chambers, also an Eastside resident. We recommend John O’Brien. www.johnobrienforjudge.com

After a DUI Arrest, Towing is Common Practice

If you are arrested for a DUI, most police officers will order a tow truck to haul your car to the police impound. It’s standard practice to protect the city from liability if your car is vandalized or otherwise damaged while you are in custody.  Many of the officers will also do this to make sure that if they release you after processing you for the DUI that you do not drive later that night. Believe it or not, there are cases of people accused of DUI going back and driving their car after being processed for their DUI.  They then go and get a second DUI all within a few hours of the first.

You can ask the officer if your car can be left in a safe and legal location. If the office agrees, it will save you the cost of towing fees. Expect to sign a liability release for the privilege, but also realize that you are taking a risk. That is why the release is required.

Unless you know you are leaving your car in a safe place or that you have someone who can pick the car up promptly, paying for a tow could end up costing far less than the cost of a stolen or stripped vehicle.

Cleared of the DUI charge? Can You Recover the Towing Fees?

You may be wondering if you can recover those towing charges if you are cleared of the DUI charge. Getting charges dismissed does not automatically entitle you to receiving a reimbursement of the towing fees.  In fact, in all the years we have represented people accused of DUIs, we have never once seen of or heard of a person recovering towing fees.  Unfortunately, even if you are found not guilty or the case is dismissed it is unlikely that you will recover tow fees.

Recovering Your Car After a DUI

You will want to recover your car as soon as possible. Not only do you pay towing fees, you also pay storage fees when a car is impounded. These fees can vary depending on where your car is towed to. Some lots cost up to $24 a day plus tow fee.

First, you need to find out where your car is located. Then get a quote on what charges and fines you must pay to get your car released.

Call the impound lot to confirm that your car is actually there. Ask for what you need to bring with you—ID, police paperwork. Confirm what the bill will be up to 5 p.m. of the day you are picking up the car.

Get the cash, certified check or money order to pay your bill. The impound lot will not take checks.

Now, you are ready to arrange for a ride to the impound lot. Pay your bill, and you should be able to drive away with your car.

Recovering your car after a DUI is one of the unpleasant tasks that can be connected with a DUI charge. Attempting to represent yourself when you have been charged with a DUI is one unpleasant task you should never consider taking on. Speak with a Washington licensed DUI attorney if you are arrested for a DUI in Seattle. It can make the difference between a DUI on your record.

Washington state’s Supreme Court declared sobriety checkpoints unconstitutional in 1988, but this hasn’t stopped Gov. Christine Gregoire from asking the state Legislature to authorize police to start setting them up. She is asking residents of the state to trade away some of their driving rights in exchange for what she claims would make them “team players” in Washington’s fight to save lives.  This piece of legislation fortunately died on the way to her desk, preserving some of the rights under Washington’s State Constitution.

U.S. Supreme Court has upheld DUI checkpoints.

Washington state is one of only 11 states that still protects motorists from being pulled over if there is no suspicion of DUI. The state is listed as #40 on a report card Mothers Against Drunk Driving (MADD) issued in November 2009. MADD bases its rankings upon the percent of 2006 driving fatalities that involved a drunk driver in Washington.

Would DUI sobriety checks be good for Washington state?

Sobriety checkpoints do more than deter drunken driving. They become dragnets for catching many other driving offenses. California reports that its checkpoints help them catch everything from unlicensed drivers and cars not covered by insurance to undocumented immigrants. Vehicles are impounded regularly.

But critics in that state point to the fact that more than half of the cars impounded are never claimed. Their owners just can’t afford to do so. Typical costs for towing and impoundment run up to $1200 to $4000.

Hidden DUI agenda?

Impound fees are a lucrative source of income for a city budget. Oxnard, CA raked $600,000 into their general fund in 2009 not including the impound fees generated by using checkpoints. Could city’s like Seattle, Tacoma, Olympia and Vancouver embrace a practice that strips drivers of their right to privacy as a source of income? That DUI checkpoint catches drivers who may be perfectly safe drivers who have forgotten to put their new proof of insurance in the car—a ticket that generate income for the city? We could give more examples, but you get the idea.

Do DUI sobriety checkpoints reduce alcohol related crashes?

Yes, according to MADD. They claim that the Centers for Disease Control reports that the states that use sobriety checkpoints have 20% fewer impaired driving crashes.

Does a reduced DUI accident rate justify loss of liberty?

In our opinion, it does not. Our freedom to travel freely is being challenged from many angles. This is another one. No matter how law-abiding you seek to be, being stopped at a checkpoint can be a nerve-wracking experience. Could your allergies be interpreted as signs of DUI? Could the tremor in your hands caused by your nerves be misinterpreted as well?

Let the police increase their use of DUI emphasis patrols. They have the clear authority to pull over drivers whose driving appears unsafe. Let the rest of us use the roads without fear of being stopped without reason.

Is King County Going To See Them in Court Again?

After over two years of refusing to accept breath-test evidence in King County District Court, the same three judges that first questioned the state crime labs’ ability to report accurate test results are prepared to reconsider allowing breathalyzer test results into evidence. Promises from King County Prosecutor Dan Satterberg that problems with the lab have been resolved have prompted this willingness to hear arguments regarding the improvement at the laboratory.

Satterberg claims that the lab has been scrubbed from top to bottom. He expects to proved that the major overhaul has addressed every one of the concerns the judges expressed in 2008.

Prosecutor Wants Reinstatement of Breath Test Results.

With nearly 4,000 DUI cases to prosecute each year in King County, Satterberg has found that the inability to present breathalyzer test results in court has “hamstrung” prosecutors. As far as he is concerned he has not been allowed to get “the best evidence before the jury.”[1]

Have DUI Breath Test Problems Really Been Addressed?

The question we keep asking this: What check and balances are in place to prevent the same problems that resulted in banning DUI breathalyzer tests from occurring again?

Machine-calibration errors occurred. Checks on the machines were performed by individuals who didn’t have the authority to sign off on the checks.

The State Laboratory claims to have implemented a Quality Assurance Program to address inaccuracies and ethical concerns. What the lab cannot address is the fact that these machines are not 100 percent accurate. It is vital that juries understand that breath-test results do have a certain measure of uncertainty.

Easier Convictions Could Lead to Many More Unfair Convictions.

We aren’t surprised that King County’s prosecutor’s office is seeking reinstatement of breath-test results as admissible evidence in DUI cases. It would make the job of securing a DUI conviction easier. But would it make these DUI convictions fair? We remain skeptical. We believe that blood alcohol test results are the most dependable. And until the breath test lab meets all of the most current standards, we’re going to keep on seeking to keep them out of evidence and challenging them if they come into evidence.

WHAT IS THE DIFFERENCE BETWEEN BEING DETAINED AND BEING ARRESTED?

Being arrested isn’t always as clear cut as those 70s cop shows made it look. You won’t always have a police officer say, “You are under arrest,” and start reading you your “Miranda rights.”

Legally there is a difference between being “detained” and being “arrested.”  Most arrests start with someone being detained, but they don’t always lead to an arrest. For example, you may be pulled over for a traffic infraction  because the police officer saw you cross over the white line on the side of the road a few times.

If the officer notices indications that you have been drinking, this could give him or her suspicion that you have committed the crime of DUI.  If the officer then begins a DUI investigation, this is called a detention and is less than an arrest.  You can’t drive away, but you are not under arrest at that point either.  We recommend asking for an attorney any time you have been detained.

Washington DUI – Officer Must Have Reason To Continue Detaining You

A Washington state police officer has the right to detain you if there is a reasonable suspicion you have committed a DUI. This is a very low threshold, much lower than guilty beyond a reasonable doubt needed to convict someone at trial.  But an officer is not allowed to keep you for an extended period of time unless there is evidence that you actually are a DUI driver.

The longer you are detained for a DUI, the more likely you will be moved from being detained to arrest.  Certain actions by the police signal that you are under arrest, even if you aren’t “officially” notified. You will be taken into “custody.” You may be handcuffed. Or you may be surrounded by police officers, and it becomes apparent you are not free to walk away. You may be locked in the back of a police car or prevented from leaving the scene in some other way.

Whether you have been detained or arrested, keep your answers to questions to the most basic facts – such as name, address and telephone number.  The police have the right to know who you are and where you live. Beyond that, ask to speak with an attorney who specializes in DUI.  If a private attorney is not available, we recommend speaking to a public defender.  We also suggest asking for an attorney when asked to do field sobriety tests and have the attorney advise you as to whether or not you should do them.

The state of Hawaii began experimenting with an interesting idea back in November 2009. The police department began posting pictures of DUI suspects on their website. The question is, “Does this practice violate the rights of the person who has been arrested for DUI?”

Supporters feel that anyone who gets stopped for DUI deserves to have their picture flashed across cyberspace, but critics say the photo gallery can stain the reputation before a person has their day in court. Hawaii’s Police Department feels that the pictures are public record and that if people are aware that their picture will appear on the Internet, they might be less likely to drive while they’re intoxicated. Defense attorneys voice strong doubts the strategy will stop anybody from getting behind the wheel.

DUI Arrest Records Are Public Record

While arrest records and photos have been considered public record for years, having the Police Department publicize images on their own website is a relatively new venture. Hawaii’s Police Department hasn’t worried about making enemies. They have posted pictures of lawmakers and several stars from the ABC drama “Lost” which is filmed locally. Their goal is to embarrass with the hope of reducing the number of DUI arrests.

DUI Photos Should Never Be Posted

If the practice does show up in Washington State, we feel that pictures should not be posted – ever. We have represented many people who did not deserve a DUI arrest. A picture that shows up on a website can be something that sticks with the person for the rest of their lives. A false arrest could cost someone a job. If a person were in a witness protection program, it could cost them their life.

DUI Arrest Is Already Embarrassing Enough

We believe that posting pictures is unfair and unnecessary.  Most people have enough shame just from being arrested.  We have not seen any studies or scientific articles that prove that posting pictures of people accused or convicted of a Washington State DUI offense would help reduce future DUIs. Until we see proof, our opinion stands firm against posting pictures of people arrested for DUI.

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.

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.

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.