DUI Washington Blog

Once in a while we see a DUI case that would provide a real laugh if we didn’t represent DUI clients. The story of one creative Minnesota man is just such an example. After having his driver’s license revoked for DUI, a Proctor, Minnesota man turned his La-Z-Boy recliner into a motorized vehicle.

The man powered his recliner with a lawnmower engine, added a steering column, and decked the chair out with a stereo, cup holders and headlights so he didn’t have to make the trip to the bar on foot or call a cab. Unfortunately, when he left the bar, he had trouble maneuvering his makeshift transport and crashed into one of the cars in the parking lot.

Police estimated that the recliner had the ability to top out at 15 – 20 miles/hr. They confiscated the powered chair and arrested the man for DUI, despite his pleas that they give him a break.

Fortunately, the man’s six month jail sentence was stayed along with half of the $2000 fine on condition that he stay under supervision for two years and participate in a chemical dependency assessment, agree to random testing and 30 days of electronic monitoring.

We can only wonder if this man who does auto body repair work out of his home will get any orders for motorized recliners. Possibly not. The story goes on.

DUI Recliner goes on E-Bay.

When the Proctor Police Department put the motorized recliner up for auction on E-Bay, La-Z-Boy called in its trademark rights. Bidding had already reached $43,700 when the manufacturer took exception to the Police Department’s description of what it called a glorified lawn mower, not a La-Z-Boy. When relisted using verbiage La-Z-Boy would accept, the bidding only went up to $5000.00.

So the man who lost his chair to police impound may, in the end, have gotten the last laugh. He was able to auction photographs of himself in his chair on eBay. Who knows how many he was able to sell?

This story makes us wonder if we’ll be seeing motorized wheelchair or lawnmower DUI’s in the future. If a man can be arrested for DUI because he lost control of his motorized recliner, where will the line be drawn? Really, how much damage could the man have caused? Somehow this whole story reeks of justice run amok, a police department needing to make an example.

Keep DUI Laws in Perspective

As DUI attorneys, Burg Criminal Defense agrees that DUI laws should exist to protect lives first. Protection of property is secondary. The driver of this tripped out recliner posed little threat to other’s lives, and minimal threat to property.  We can only hope that the police departments in the greater Seattle area would have a better sense of humor.

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.

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.

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.