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.

Are Courts interested in justice or convenience when hearing DUI cases?

So far in Washington State, we have seen a strong emphasis in our courts to value justice above convenience. It is one of the things demonstrated by the judges in King County who refused to allow breathalyzer results into the courtroom because of problems in the State’s testing labs. (See DUI Breathalyzer Test Results April 3, 2010).

These judges ruled upon the flaws in the breath testing maintenance procedures in Washington State, which has helped disability attorney’s in their practice of helping achieve justice for people accused of DUI in Washington State.. As of this writing, many judges in King County District Court are still excluding these breath tests.

The science that could eliminate some DUI cases

Recognized experts in the programming used in alcohol breath machines testify that breathalyzers are programmed to assume the person breathing into the machine already has 2100 parts of alcohol for every 1 part it measures in a person’s breath. Blood work has shown that some individuals actually have a ratio of 1500 parts of alcohol for every 1 part on the breath. People show wide variances in how much alcohol they release on their breath.

A change in alcohol to breath ratio can mean a driver was not DUI.

A simple change in ratio makes the difference between being over the legal limit of 0.08% BAC and being below the legal limit. For example, the 2100:1 ratio equals a BAC of 0.10%. A ratio of 1500:1 drops a person’s BAC to 0.07%. The person who releases alcohol at a 1:1500 ratio expels more alcohol naturally each time they exhale.

If you are one of these unfortunates, you may be facing a DUI charge. This is one of the primary reasons we encourage drivers to respectfully ask to speak with an attorney instead of taking a breath test. The tests are just too inaccurate.

At Burg Criminal Defense, we assist drivers who have been charged with a Washington DUI. It is our firm conviction that you deserve to move past your DUI arrest with as clean a record as possible. We have helped many drivers retain their rights. We would like to do the same for you. Please contact us for impartial and compassionate DUI legal assistance.

After a DUI Arrest, Towing is Common Practice

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

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

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

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

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

Recovering Your Car After a DUI

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

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

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

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

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

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

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.

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.

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.