DUI Washington Blog

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.

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.

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.

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.