DUI Washington Blog

Family Loyalty Lands Three Month Jail Sentence

Just a few days ago, a Sarasota, Florida man was sentenced to three months in jail for refusing to testify that his brother had been the driver in a DUI accident that resulted in the death of one of the passengers in the Ford Pickup truck he had allegedly been driving. He had already spent 10 days in jail for contempt of court.

The judge was not swayed by the testimony of numerous witnesses that the Sarasota man did not deserve to be sentenced for doing what he felt was right. One of the witnesses included the father of the man who died in the crash. She commended the man for his convictions and sentenced him to jail time anyway.

The Court is pressuring the man to speak against his brother because unless he does so, the state prosecutor cannot bring manslaughter charges. The state has to prove that the man who had BAC blood levels nearly 3 times than allowed by Florida law was the actual driver of the wrecked vehicle. Without his brother’s testimony, the state’s case is destroyed.

Another passenger in the truck at the time of the accident reports that he doesn’t remember who was driving. All he knows is that a deer jumped in front of the pick-up, and the driver lost control swerving to avoid it. The question remains, “Who was the driver?”

Washington State DUI Laws—Refusing to testify can mean jail time.

The law in Washington is similar. You can serve jail time for refusing to testify. And the prosecution must prove the identity of the driver in order to successfully prosecute a DUI manslaughter charge. If there is any question as to who the driver was, the DUI attorneys at the Law Offices of Geoffrey Burg will work to protect the rights of our clients.  We are dedicated to a vigorous defense of our client’s constitutional rights.  We do everything within the law and our ability to make sure that our clients get the best possible outcome for their DUI charges.  It is for this reason that we regularly speak at seminars, work with the legislature, and keep abreast of all changes in the law.

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.

Whether or not there is a video will depend mostly upon who arrests you. As a defense firm, we like video.  It prevents the police from exaggerating in their reports and holds them accountable if they do.  Unfortunately, not all police officers have video in their cars. Frankly, most do not. We have found that if you have been arrested in the City of Seattle, then there generally will be a video of the stop, detention and arrest. However, most other cities do not have it, nor do most  State Patrol Troopers.

Video Keeps Officers Accountable for DUI Procedures.

When video recordings are seen in the courtroom, they provide an objective recording of the DUI stop and arrest. Not only would a video reveal whether the officer informed the driver that field sobriety tests are voluntary, if the video failed to provide objective evidence that the DUI detention was appropriate, the case would be dismissed. As stated above, videos also hold the police accountable for their observations. It prevents them from exaggerating how someone did on their field sobriety tests.  For instance, officers will often say that a person had many clues of impairment, but it is not uncommon for those clues NOT to show up on the video. This helps protect people’s rights.

Breath Testing Rooms Often Have Video Cameras

In addition to videos in the car, many breath testing rooms have videos of the breath testing procedure.  We have found that these videos can be particularly helpful in making sure that the police officers follow the rules and procedures for conducting the breath test properly.  We have had many breath tests thrown out of court because we have been able to prove, through the use of video, that the tests were not properly conducted.  Many of the police departments only keep these videos for a short period of time before recording over them, so it is important to ask for them within a few days of your arrest.  At our office this is something that we always do for our clients.

You Have a Right to See a DUI Video if One is Made.

If the police made a video, then you have the right to view it.  At the Law Offices of Geoffrey Burg, we always make sure we find out if a video exists and secure a copy for our clients. You deserve the best representation possible, if you are arrested for a Washington State DUI.

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.

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.

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.