DUI Washington Blog

Even Over-the-Counter Meds can Cause Drug DUI Trouble

DUI charges aren’t always for alcohol. They can also relate to the suspicion that a driver is under the influence of a chemical substance. Blood work can come back allegedly revealing the presence of marijuana, cocaine, meth amphetamine or some other substance. The drug may be legal, but if it is known to affect a person’s mental or physical capacities, a DUI charge may follow.

We have represented clients who were charged with DUI after using an over-the-counter cold medication. Believe it or not, zealous district attorneys have even sought DUI convictions for drivers whose coffee consumption resulted in a perceived impairment on the part of the arresting officer.

So what does it mean to be “under the influence” of a drug when you are behind the wheel? Most states, including Washington, recognize a drug as something that is capable of affecting the nervous system, brain, or muscles of driver, to the point where it is noticeable and affects a driver’s ability to drive his or her vehicle in the manner that compares to an ordinary driver in similar road conditions.

In Washington State, the Department of Motor Vehicles exercises jurisdiction over both alcohol and drug related DUIs. As part of this state’s aggressive stance against drug DUIs, the state employs drug recognition experts whom the state claims has special training in how to evaluate drug DUI suspects. The opinions of these “experts” are used to prosecute those who are accused of driving under the influence of drugs.

There are seven categories of drugs known to impact the central nervous system (CNS).

1. CNS depressants have a similar effect as alcohol. They slow the brain and body down. Barbituates, tranquilizers and anti-depressants fall in this category.
2. CNS stimulants have an opposite effect as alcohol. They speed everything up. Cocaine, “Crack”, Amphetamines and Methamphetamine (“Crank”) fall into this category.
3. Hallucinogens change the perception of reality. LSD, Peyote, Psilocybin and MDMA (Ecstasy) fall in this category.
4. Dissociative anesthetics cut off the brain’s ability to perceive pain. PCP is the most common dissociative anesthetic.
5. Narcotic analgesics not only relieve pain, they produce euphoria and other mood changes. The most commonly known are Opium, Codeine, Heroin, Demerol, Darvon, Morphine, Methadone, Vicodin and OxyContin.
6. Inhalants are mind-altering gasses that can be inhaled. Toluene, plastic cement, oil-based paint, gasoline, paint thinner, and hair sprays are common anesthetic gases.
7. Cannabis (marijuana) distorts perception and impairs coordination. It also causes difficulty in thinking and problem solving.

If any of these substances are found in a driver’s blood after a DUI, Washington State prosecutors are going to take it very seriously. That is why is so vital to hire a DUI attorney with drug DUI experience. The prosecution is going to seek to prove that drugs impaired the driver’s abilities using the same tools used in an alcohol case, by pointing to circumstantial evidence.

Hire a DUI Attorney with Real Know-how.

When you hire a DUI attorney with real know-how, what might seem damning evidence to you may prove to argue for you. Circumstantial evidence is just that—circumstantial. It doesn’t always prove what the prosecutor wants it to. The prosecution may produce its drug recognition experts, but a DUI drug attorney will have the knowledge needed to point out the loopholes in the testimony.

Proving the level of impairment is still a very inexact science. It depends almost entirely upon the recorded statement of the arresting officer regarding the physical appearance, performance of field sobriety tests, observed driving behavior, incriminating statements and behavior at time of the arrest. There are no standards available.

Blood and urine tests aren’t definitive in many cases as well. While marijuana is usually identifiable, other drugs don’t always leave a clear marker to their identity. It is also worth noting that marijuana remains in the blood for weeks, so testing could falsely accuse a driver of being under influence when he or she isn’t. The mere presence of a drug in the blood or urine does not prove that enough of the drug was taken to cause mental and physical impairment.

How to Handle a DUI Arrest.

If you are arrested for a suspected drug DUI, expect for the arresting officer, or one of Washington’s drug recognition experts to record information about your pupil size, blood pressure, and pulse rate. Expect to have your arms examined for evidence of needle use. You can also expect to be pressured into admitting your drug use. Remember that something as small as admitting you took cold medicine could be used against you, so ask to speak with a DUI attorney before speaking with anyone. The less you say, the better.

Remain polite, yet don’t try to extricate yourself from the situation on your own. There are many reasons for an apparent drug DUI that have nothing to do with the use of a chemical substance. Seek the assistance of a criminal defense drug DUI attorney. It will make a difference for your future.

The story of Megan Thompson is the kind of story DUI attorneys like to hear. A 19-year old woman, raised in a good home, did something foolish in 2002—she disobeyed her parents by drinking a few beers and taking some Xanax at a party. Then she got behind the wheel of her parent’s car.

On the way home, she passed out, veered into oncoming traffic and the rest is history. Two lives lost, yet Thompson’s life has arisen from the wreckage. What once was a dream of becoming a trainer at Sea World has become a passion for reaching out to young people like herself.

DUI sentence gives woman a new direction in life.

Thompson spent four years in prison on vehicular manslaughter charges. It changed her purpose in life. She says that the guilt for what she did is a companion that never leaves her. Yet, she is determined to let that companion give direction to her life. She met women in prison whose childhoods were beyond comprehension. It led her to a new career goal—social worker.

The judge who sentenced her has played a role in encouraging her. He sees Thompson as a poster child for good people who have made “really bad choices.” He keeps a drawing Thompson sent him of her wearing a suit of armor. She based her drawing on a passage in the Bible that calls for Christian’s to wear the full armor of God. It is something she intends to remember to do far beyond the end of her parole in December 2011.

DUI charge is not a conviction.

At Burg Criminal Defense, we look at all of our DUI clients as good people. People make mistakes, including DUI. It is our goal to do what we can to make the consequences for a DUI arrest as fair as the law allows. We are on your side. If you are arrested for DUI in the greater Seattle area, contact the DUI attorneys at Burg for compassionate, experienced DUI attorney representation.

An increasing number of states are looking at enhanced patrols as a means of reducing traffic accidents. Within Washington State, these patrols are often called Seatbelt Patrols. Since 2006, Washington State Patrol and other law enforcement entities routinely conduct nighttime patrols at exits leaving state highways and interstate freeways.

Catching DUI drivers not reason for nighttime seatbelt patrols

At least that is what Washington State Patrol claims. State Patrol gives a specific reason for nighttime enforcement efforts. Statistics show that when vehicle accidents happen at night the death rate is at least four times higher than the daytime rate. State patrol has discovered something else as well—a nighttime unbuckled motorist is more likely to have a criminal record, more likely to have traffic violations, and more likely to caught for a DUI. Those nighttime seatbelt patrols allow police officers to pull you over for failure to wear a seatbelt.

Be on your guard. Not only can you be ticketed for failure to wear your seatbelt, you could also be asked to perform sobriety tests if an officer suspects that you are driving under the influence (DUI) of alcohol or drugs. If you are asked to perform one of these tests, or to take a breathalyzer test, ask to speak with an attorney first. A DUI attorney will advise you to not take any of these tests, except for the breath test once you reach the police station (which we typically suggest that people take). If the police officer tells you that your license could be revoked, or other frightening things, calmly let him/her know that you are following the advice of your DUI attorney. This is the best way to retain all of your rights.

Burg Criminal Defense’s DUI attorneys have many years experience with DUI law. Our practice is centered primarily in the greater Seattle metropolitan area, though we are licensed to practice law anywhere in the state of Washington.

DUI Attorney Advises Washington ILL Holders to Not Take Risk Renting Car Without Ignition Interlock.

A client of ours is required to have an ignition interlock license in Washington State. He is a resident of Washington State, but business travels take him around the country.  He recently asked this question:  Can I rent a car out of Washington State if I have an ignition interlock license issued by the State of Washington? Unfortunately, the answer is complicated, but worth sharing.  The current law in Washington State, RCW 46.20.720(3), in effect to December 31, 2010, reads as follows:

(3) The department shall require that, after any applicable period of suspension, revocation, or denial of driving privileges, a person may drive only a motor vehicle equipped with a functioning ignition interlock device if the person is convicted of an alcohol-related violation of RCW 46.61.502 or 46.61.504 or an equivalent local ordinance.

The department may waive the requirement for the use of such a device if it concludes that such devices are not reasonably available in the local area. The device is not necessary on vehicles owned by a person’s employer and driven as a requirement of employment during working hours. The person must provide the department with a declaration pursuant to RCW 9A.72.085 from his or her employer stating that the person’s employment requires the person to operate a vehicle owned by the employer during working hours.

Under this current law, I don’t think there is any exception for rental vehicles driven out of state for work.  It is my legal opinion that driving a rental car without an IID on it would be a violation of the law.  Some attorneys I know have argued that it is not a violation since it would fall under the work exception.  Remember, even the work exception requires a declaration from the employer saying that the vehicle is being driven for work.

The current law was amended in the last legislative session. SSHB2742 now specifically excludes having an ignition interlock system on vehicles rented for work.  This new law will take effect on January 1, 2011.   The language of this bill is:

… an ignition interlock device is not necessary on vehicles owned, leased, or rented by a person’s employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person’s employer as a requirement of employment during working hours. The person must provide the department with a declaration pursuant to RCW 9A.72.085 from his or her employer stating that the person’s employment requires the person to operate a vehicle owned by the employer or other persons during working hours.

When this law takes effect on January 1, 2011, people will be able to rent cars without an IID on them.

It is an entirely different question as to whether or not a rental company will rent a vehicle to someone with an ignition interlock license.  Again, under Washington State law anyone with an ignition interlock license can rent a vehicle beginning January 1, 2011.  However, because rental companies are private companies, each rental company has the right to determine whether or not to actually allow you to rent a vehicle.  I have not had a client tell me that they were unable to rent a car with an ignition interlock license, even under the current law (nor have I had a client tell me they could).    However, I just had a client who was turned down by Enterprise because she had a hole in her license (even though she had not yet been suspended).

As you know, the clerks and managers at the front desk of rental car companies all act differently. Car rental companies may have different policies at different branches. Without calling the specific branch, there is no way to tell whether your ignition interlock license will create difficulties or not.

When you call the car rental company, be sure to ask for the branch manager. Get the name and record the time of your call. This will help you if you find yourself facing an uncertain employee when the manager has stepped out.

Burg Criminal Defense is often asked whether you can refuse to take field sobriety tests without it being used against you in court.   Yes, you definitely can – however, you must do this correctly and the correct way to do it is by asking for an attorney, not to just say that you don’t want to do the tests.  In the State of Washington, roadside sobriety tests are voluntary. This means you do have the right to decline taking them.

Speak with a DUI Attorney Instead of Performing Field Sobriety Tests

Instead of performing the field sobriety tests, it is better to ask to speak with a DUI attorney.  The police officer should then cease  all questioning. You can expect an arrest to follow. Then arrest you will be provided with an attorney.   The attorney will advise you not to perform the tests, reducing the ability of the prosecution to use the tests against you. You will be able to say that your attorney advised you not to take the DUI field sobriety tests. When a private attorney isn’t available, you should speak to a public defender.

However, many people don’t know this until after they have been arrested.  Unfortunately, if you fail to perform well on a field sobriety, this could be used against you. You may be reading this blog post because you already performed poorly on a Washington DUI roadside sobriety test. You didn’t know that it was your legal right to ask for an attorney.  Not to worry. This is very common and we can still help you if poor test performance is working against you.

Field sobriety exercises can be unreliable for many reasons.

The National Highway Traffic Safety Administration (NHTSA) believes they have standardized these tests, but how do you standardize a test when so many variables can exist—different weights, varying athletic abilities, assorted medical conditions and diverse ages? These tests assume everyone can perform well when sober, which can be unfair.  They also vary in that not all officers administer the tests in the proper way.  If the officer did not follow the NHTSA standards than we can show that the tests are not valid.

Testing conditions are another issue with field sobriety tests.  Being pulled over on suspicion of a Washington DUI is an upsetting event for anyone. The resulting anxiety and nervousness can be misinterpreted as impairment.  Fatigue can impact performance on a roadside test as can low blood sugar. Traffic passing too close on the roadway can cause anxiety. The shoulder at the side of the road is often tilted, making standing on one leg or walking a straight line more difficult for most people. If it is raining, the road or sidewalk is often slippery. Most people aren’t familiar with the sobriety tests which can produce unreliable results.

NHTSA considers the horizontal gaze nystagmus or HGN test one of the most accurate field sobriety tests available for proving a Washington DUI. Prosecutors would like juries to believe that it is very accurate. It isn’t quite as perfect as they would like you to think. If lighting is poor, it affects an officer’s ability to conduct the test accurately. HGN can also occur for reasons that are not connected to alcohol consumption.

DUI Attorneys Offer Hope.

All of these things can invalidate roadside DUI evaluations based on field sobriety tests. As far as we are concerned  there is hope for everyone we meet with.  Over the years we have seen so many Washington State DUI cases resolved in ways that at first blush did not look possible.  So, please do not give up hope about your case.  We may be able to help you resolve it in a way you never thought possible.

In conclusion, if you have been stopped for an infraction in Washington State and it appears that the officer is doing a DUI investigation, the very best thing to do is to ask for an attorney and keep your mouth shut.  You may be arrested, but you will have helped yourself by maintaining all of your constitutional and state rights.

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.

It is against the law in Washington state for anyone under the age of 21 to consume alcohol. So it shouldn’t come as a surprise that there is a Zero Tolerance law that targets drivers that are under the legal drinking age.

Why Zero Tolerance for Teen DUI?

Organizations, such as Mothers Against Drunk Driving (MADD) have been at the forefront of the movement to make the penalties for DUI strict at all levels, but especially for underage drivers. They point to the research.

• Drivers between the age of 16 – 20 are at the highest risk for dying from a car accident than any other age group.
• Alcohol is involved in twice as many vehicle accidents in the under 21 age group than in older age groups.

Does Zero Tolerance for Teen DUI work?

Studies by the U.S. Department of Transportation (NHTSA) suggest that it does. States that have Teen Zero Tolerance laws have seen a 16% drop in nighttime fatal crashes involving underage drinkers.

Zero Tolerance Blood Alcohol Concentration (BAC) Level

In Washington, the blood alcohol concentration cannot be higher than 0.02%. One beer is enough to raise your BAC over Washington’s  Zero Tolerance limit unless you are a large person. If you drive into Oregon, your BAC will be above Oregon’s Zero Tolerance limit of 0.0% no matter how large you are.

Zero Tolerance Penalties for Teen DUI

The penalties for teen DUI can be steep.  Anyone under the age of 21 that has been accused of driving with a .02-.079 BAC faces a two part process.  First, if you are under the age of 21 and your breath test is at .02 or greater, the Washington State Department of Licensing takes away your license for 90 days.  If you have refused the breath test, they take away your license for 1 year.  In either case, you have the right to contest this action.  This is a right that you should exercise, and it is something we can help you with.

If your breath test is a .02 or greater you can also be charged with the crime of being under the age of 21 and operating a vehicle with a breath test of a .02-.079.  This is a criminal offense, a misdemeanor, with a penalty of up to 90 days in jail (most people don’t go to jail for this) and up to $1000 in fines.  It is not uncommon to see costs and fines run close to $1000.

Remember, if your breath test is a .08 or greater or if you have refused the breath test, you can be charged with a regular DUI.  This is a gross-misdemeanor with penalties of up to one year in jail and fines of up to $5000.  While most people (particularly first time offenders) do not face the maximum penalties and  fines, there are minimum penalties of a day or two in jail and costs of about $1000 for a first offense DUI.

Talk to a DUI Attorney

If you are detained for a potential Teen DUI, it is very important to ask for an attorney right away. Politely asking to speak with a DUI lawyer can help protect all of your rights.  If you have been accused of one of these offense, please feel free to contact us at (206) 467-2607 for a free consultation.

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.