I have encountered instances before where someone, who had not consumed any alcohol, was pulled over, seemed disoriented and had trouble answering questions. The police ask the person they pulled over to perform field sobriety tests. Police do not smell the odor of alcohol on the person's breath and there is no breath test or blood draw taken whatsoever.
During routine questioning in DUI stops, police ask the driver if they are on any medication. The driver says, “yes, I am taking Ambien and I have a prescription from my doctor.” The officer asks if that person had taken that prescription drug that night and the person who was stopped answers affirmatively. The person is then taken into custody and booked for DUI.
I was prompted to make this posting at this time due to the increasing discussion among my colleagues right now about handling DUI cases where the driver was not drinking, but had taken Ambien. In Washington State, as in many other states, you do not have to have consumed alcohol to be convicted of DUI.
You are guilty of DUI in Washington if you are driving while affected to an appreciable degree by any drug, not necessarily illegal drugs. Ambien is a powerful sleep aid and if a person drives after taking this drug, they can be charged with DUI.
As my colleagues are grappling with defenses DUI charges under these types of circumstances, I have found and old case called Kaiser v. Suburban Transportation System, which was handed down by Washington State Supreme Court back in 1965. In that case, a bus driver had taken medication that had been prescribed by his doctor.
After taking the medication, the bus driver became drowsy and fell asleep while driving a bus full of passengers. An inured passenger sued, claiming that since he violated the DUI laws by driving while under the influence of a drug, he was negligent per se and liable for damages. The Washington State Supreme Court said:
“We do not think that one who innocently takes a pill, which is prescribed by a doctor, can be convicted of a crime under this statute and thus be negligent per se unless he has knowledge of the pill's harmful qualities. To hold otherwise would be to punish one who is not culpable.”
The court said that intoxication must be voluntary in order to convict someone of DUI. The court concluded:
“In the instant case the driver took the pill completely unaware that it would have any adverse effect upon him. This involuntariness negatived the mens rea and established the driver's innocence. Viewing the evidence most favorably to the bus driver, we therefore hold that he is not guilty of negligence per se on the basis of RCW 46.56.010.”
But what about a situation in which a person was warned by his doctor and a warning label on the bottled of pills that indicated adverse effects and that one should not operate a motor vehicle after taking the drug? In a case such as that, the defendant probably would not be able to use the defense of involuntary intoxication.
It is interesting to note that if someone falls asleep at the wheel after going long periods of time without sleep, they may only be cited for negligent driving or reckless driving. But if someone falls asleep at the wheel or even only becomes drowsy at the wheel after taking drugs prescribed by a doctor, that person could be charged with DUI, a charge that carries much more serious consequences.
Wednesday, December 30, 2009
Tuesday, November 3, 2009
WHAT DOES "VEHICLE" MEAN UNDER RCW 46.61.502?
Today, I'm going to comment on certain legal issues in a DUI arrest in another state involving unusual circumstances and how the outcome of the case may be different if the incident had occurred in Washington. Back in March, police in Ohio arrested a man for DUI after he crashed a bar stool. That is not a typo. Yes, he was driving a bar stool. The man had attached a 5 horse power Briggs and Stratton lawn mower to his bar stool and was diving around his neighborhood until he crashed and injured himself.
The man called 911 because of his injuries and paramedics arrived at the scene. The police also arrived to "investigate an accident". When the police arrived, they said that the injured man had slurred speech, bloodshot eyes, and had the odor of alcohol on his breath. At this point, I'm sure the police had no interest in investigating an accident; they were concerned with investigating a DUI.
The first issue involves the Fourth Amendment- were the police justified in making contact with the suspect? Well, they did not stop him; he actually called 911 and requested assistance. Once the police arrived at the scene and noticed that the suspect appeared to be intoxicated and learned that he had been riding a bar stool powered by a lawn mower, they had at least reasonable suspicion that he was driving a motor vehicle under the influence of alcohol.
While the man was being checked out by the paramedics, the police were asking him questions intended to be used to gather evidence for a DUI charge. The suspect, did not realize this in part probably due to his intoxication. It seems apparent from reading the police report, that the man had no idea that he could be possibly be charged with a DUI- he wasn't driving a car; he was riding a bar stool!
So he gave all kinds of incriminating information up to the police freely. They asked him several times how much he had to drink and he responded several times by saying, "a lot." This is a bad answer. That does not mean I suggest that you lie to the cops, but there are other ways of answering that question without lying and without incriminating yourself too much. The police pried further and tried to get the exact number of drinks the suspect had consumed. He eventually told him that he had drank 15 beers. The police also asked the man a number of questions concerning where he crashed the bar stool.
Is this questioning in violation of Miranda? No. That is because Miranda warnings only apply when a suspect is being questioned while in custody. Whether or not a person is in custody is often determined by whether that person feels as though he or she is free to leave. Here, the suspect had no idea that the cops were trying to gather evidence against him and he felt free to leave.
After the police learned that the suspect had drank fifteen beers, they asked him to perform field sobriety tests- only they didn't call them "field sobriety tests." Instead, the cop asked if the suspect would "perform a simple test involving his eyes." The suspect, still unaware that the cops were building a case against him, agreed. In Washington State, you can refuse to take the field sobriety tests without losing your driver's license. The refusal mat be used at trial to show consciousness of guilt, however.
After the cops gathered more incriminating evidence by administering "simple tests involving his eyes," the suspect asked them what the tests were for. The police told him that they were trying to find out if he was impaired at the time of the crash. At this point, the suspect caught on and said he was "done."
The suspect was taken to a hospital and the police wanted to draw his blood. The suspect, again aware that they were trying to build a case against him, refused. In Washington State, you can be required to submit to a blood draw only if you are incapable of giving a breath sample or if you are being treated in a hospital and the police of have probable cause to support a DUI charge. Here, the suspect met the Washington requirements and had he been in Washington, his driver's license could have been suspended for 1 year for the refusal. After refusing to submit to the blood draw, the cop issued the suspect for drunk driving.
Here's the big issue: Can you be convicted of DUI if you're riding a lawnmower? I haven't read the Ohio statutes regarding drunk driving. If their statute says that to be convicted of that crime you must have been driving a "motor vehicle" or "vehicle," we would have to also look up their statute defining those terms. In Washington, you can be convicted of DUI even if you weren't driving a motor vehicle; it does not have to be an automobile. RCW 46.61.502, the Washington statute that defines Driving Under the Influence, begins:
(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state. . .
Notice that the statute simply says, "vehicle", not motor vehicle. RCW 46.04.670 defines the word, "vehicle":
"Vehicle" includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles. The term does not include power wheelchairs or devices other than bicycles moved by human or animal power or used exclusively upon stationary rails or tracks.
So the Ohio man who was riding a lawnmower while under the influence could be convicted of DUI in Washington State, regardless of whether the lawn mower is considered to be a motor vehicle or not. Remember, you don't have to be driving an automobile to be convicted of DUI in Washington. Also remember that the cops are often trying to get you to give them information so they can put you in jail, even if you're injured and they seem like they're your friend and want to help you.
The man called 911 because of his injuries and paramedics arrived at the scene. The police also arrived to "investigate an accident". When the police arrived, they said that the injured man had slurred speech, bloodshot eyes, and had the odor of alcohol on his breath. At this point, I'm sure the police had no interest in investigating an accident; they were concerned with investigating a DUI.
The first issue involves the Fourth Amendment- were the police justified in making contact with the suspect? Well, they did not stop him; he actually called 911 and requested assistance. Once the police arrived at the scene and noticed that the suspect appeared to be intoxicated and learned that he had been riding a bar stool powered by a lawn mower, they had at least reasonable suspicion that he was driving a motor vehicle under the influence of alcohol.
While the man was being checked out by the paramedics, the police were asking him questions intended to be used to gather evidence for a DUI charge. The suspect, did not realize this in part probably due to his intoxication. It seems apparent from reading the police report, that the man had no idea that he could be possibly be charged with a DUI- he wasn't driving a car; he was riding a bar stool!
So he gave all kinds of incriminating information up to the police freely. They asked him several times how much he had to drink and he responded several times by saying, "a lot." This is a bad answer. That does not mean I suggest that you lie to the cops, but there are other ways of answering that question without lying and without incriminating yourself too much. The police pried further and tried to get the exact number of drinks the suspect had consumed. He eventually told him that he had drank 15 beers. The police also asked the man a number of questions concerning where he crashed the bar stool.
Is this questioning in violation of Miranda? No. That is because Miranda warnings only apply when a suspect is being questioned while in custody. Whether or not a person is in custody is often determined by whether that person feels as though he or she is free to leave. Here, the suspect had no idea that the cops were trying to gather evidence against him and he felt free to leave.
After the police learned that the suspect had drank fifteen beers, they asked him to perform field sobriety tests- only they didn't call them "field sobriety tests." Instead, the cop asked if the suspect would "perform a simple test involving his eyes." The suspect, still unaware that the cops were building a case against him, agreed. In Washington State, you can refuse to take the field sobriety tests without losing your driver's license. The refusal mat be used at trial to show consciousness of guilt, however.
After the cops gathered more incriminating evidence by administering "simple tests involving his eyes," the suspect asked them what the tests were for. The police told him that they were trying to find out if he was impaired at the time of the crash. At this point, the suspect caught on and said he was "done."
The suspect was taken to a hospital and the police wanted to draw his blood. The suspect, again aware that they were trying to build a case against him, refused. In Washington State, you can be required to submit to a blood draw only if you are incapable of giving a breath sample or if you are being treated in a hospital and the police of have probable cause to support a DUI charge. Here, the suspect met the Washington requirements and had he been in Washington, his driver's license could have been suspended for 1 year for the refusal. After refusing to submit to the blood draw, the cop issued the suspect for drunk driving.
Here's the big issue: Can you be convicted of DUI if you're riding a lawnmower? I haven't read the Ohio statutes regarding drunk driving. If their statute says that to be convicted of that crime you must have been driving a "motor vehicle" or "vehicle," we would have to also look up their statute defining those terms. In Washington, you can be convicted of DUI even if you weren't driving a motor vehicle; it does not have to be an automobile. RCW 46.61.502, the Washington statute that defines Driving Under the Influence, begins:
(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state. . .
Notice that the statute simply says, "vehicle", not motor vehicle. RCW 46.04.670 defines the word, "vehicle":
"Vehicle" includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles. The term does not include power wheelchairs or devices other than bicycles moved by human or animal power or used exclusively upon stationary rails or tracks.
So the Ohio man who was riding a lawnmower while under the influence could be convicted of DUI in Washington State, regardless of whether the lawn mower is considered to be a motor vehicle or not. Remember, you don't have to be driving an automobile to be convicted of DUI in Washington. Also remember that the cops are often trying to get you to give them information so they can put you in jail, even if you're injured and they seem like they're your friend and want to help you.
Saturday, October 24, 2009
WHAT CONSTITUTES DRIVING?- CAN YOU BE CHARGED WITH DUI WHEN YOU ARE ONLY STEERING THE VEHICLE?
I recently came across a news story about two men in Wisconsin who were charged with DUI in August of 2009. The odd part about this case is that one of the men was an amputee and had no legs; he just steered while his friend worked the pedals! The man with no legs argued that he could not be charged with DUI because he was not driving- he was merely steering.
The DUI law in Wisconsin is similar to the statute we have in Washington. The Wisconsin statute uses the terms "driving" and "operating"- it is illegal to operate a vehicle while under the influence of alcohol or drugs in Wisconsin. That state also has a statutory definition of the word, "operate." Under Wisconsin law, "operation" means:"the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."
I have not delved deeply into the appellate courts' interpretation of Wisconsin's statutory definition of "operation", but I suspect that they would say that putting the keys in the ignition qualifies as "activation" of a control of a motor vehicle necessary to put it in motion. As a DUI lawyer, I would argue that the prosecutor cannot prove beyond a reasonable doubt that the amputee was the person who put the keys in the ignition and that steering does absolutely nothing to put the vehicle in motion. Therefore, the man with no legs should not be charged with DUI.
This case reminds me of a trial I observed a few months ago in Seattle Municipal Court where one of my colleagues was defending a man who was charged with DUI after blowing into the breath machine and having a BAC of .30. In his closing argument, the defense lawyer argued that because his client was in a parking lot and merely parking the car, he was not driving.
The prosecutor argued that the reason why we have no statutory definition of the word, "driving" is because we do not need one; we can use common sense. She proposed that "driving" means doing anything that puts the vehicle in motion. The jury sided with the prosecutor and found that parking a car still qualified as driving because the defendant put the vehicle in motion.
Several weeks ago I made a posting about the crime of Physical Control. I believe that had the man with no legs been stopped by police in Washington, he could very well be charged with being in physical control of a vehicle while under the influence. Again, in Washington, I would argue that because the amputee did nothing to put the vehicle in motion, he was not driving and cannot be charged with DUI.
I would predict the prosecutor would try to argue that the amputee was in physical control of the vehicle because he was in a position to regulate the vehicle's movements and he had authority to manage the vehicle by using the steering wheel. In State v. Smelter, the Washington State Court of Appeals said that this is all that is necessary to establish that a person was in actual physical control of a vehicle.
So while the man with no legs may not be charged with DUI if he were in Washington State, I would put money on him being charged with Physical Control while under the influence of alcohol. His best defense at this point would probably be challenging the breath test results if there was a breath test.
I do not know if the police administered field sobriety tests in this case, but there are only three tests that are recognized as being reliable by the National Highway Traffic Safety Administration and two of them (the walk-and-turn and the one-legged stand) require you to have legs! So if the police administered these tests on someone with no legs to determine whether he was under the influence, then clearly there is a defense regarding the reliability of that evidence. The police may have made an illegal stop, but there is not sufficient information in the news article I read to determine that.
The DUI law in Wisconsin is similar to the statute we have in Washington. The Wisconsin statute uses the terms "driving" and "operating"- it is illegal to operate a vehicle while under the influence of alcohol or drugs in Wisconsin. That state also has a statutory definition of the word, "operate." Under Wisconsin law, "operation" means:"the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion."
I have not delved deeply into the appellate courts' interpretation of Wisconsin's statutory definition of "operation", but I suspect that they would say that putting the keys in the ignition qualifies as "activation" of a control of a motor vehicle necessary to put it in motion. As a DUI lawyer, I would argue that the prosecutor cannot prove beyond a reasonable doubt that the amputee was the person who put the keys in the ignition and that steering does absolutely nothing to put the vehicle in motion. Therefore, the man with no legs should not be charged with DUI.
This case reminds me of a trial I observed a few months ago in Seattle Municipal Court where one of my colleagues was defending a man who was charged with DUI after blowing into the breath machine and having a BAC of .30. In his closing argument, the defense lawyer argued that because his client was in a parking lot and merely parking the car, he was not driving.
The prosecutor argued that the reason why we have no statutory definition of the word, "driving" is because we do not need one; we can use common sense. She proposed that "driving" means doing anything that puts the vehicle in motion. The jury sided with the prosecutor and found that parking a car still qualified as driving because the defendant put the vehicle in motion.
Several weeks ago I made a posting about the crime of Physical Control. I believe that had the man with no legs been stopped by police in Washington, he could very well be charged with being in physical control of a vehicle while under the influence. Again, in Washington, I would argue that because the amputee did nothing to put the vehicle in motion, he was not driving and cannot be charged with DUI.
I would predict the prosecutor would try to argue that the amputee was in physical control of the vehicle because he was in a position to regulate the vehicle's movements and he had authority to manage the vehicle by using the steering wheel. In State v. Smelter, the Washington State Court of Appeals said that this is all that is necessary to establish that a person was in actual physical control of a vehicle.
So while the man with no legs may not be charged with DUI if he were in Washington State, I would put money on him being charged with Physical Control while under the influence of alcohol. His best defense at this point would probably be challenging the breath test results if there was a breath test.
I do not know if the police administered field sobriety tests in this case, but there are only three tests that are recognized as being reliable by the National Highway Traffic Safety Administration and two of them (the walk-and-turn and the one-legged stand) require you to have legs! So if the police administered these tests on someone with no legs to determine whether he was under the influence, then clearly there is a defense regarding the reliability of that evidence. The police may have made an illegal stop, but there is not sufficient information in the news article I read to determine that.
Sunday, October 18, 2009
HOW DUI LAWYERS GET THE BREATHALYZER THROWN OUT
In many DUI cases, the breath test results can be the most damning piece of evidence against you. The legal limit in Washington State is .08 blood alcohol content (BAC). Let's say you get pulled over, the police officer smells alcohol on your breath, you refuse to take the field sobriety test, and the officer decides to arrest you for DUI. (There is a probable cause and Fourth Amendment search and seizure issue here, but that is another topic). Once you are at the police station, you sit down for 10 minutes while the cop who arrested you walks in and out of the room and fills out paper work. After 10 minutes, the cop has you blow into the BAC Verifier DataMaster. You provide the breath sample and the machine prints out a ticket indicating a BAC of .09. The cop has you blow a second time and the machine prints out a ticket indicating a BAC of .15.
At first blush, you may think that you have no chance of winning this case, but there are a number of methods DUI lawyers have at their disposal in getting the breath test results thrown out of court. First of all, when two breath samples are taken, the prosecutor must use the result indicating the lower BAC. In this case, it would be .09, not .15.
But .09 is still over the legal limit. You still need to get the breath test thrown out to have the best chance of beating the case. In Washington, the person who gives you the breath test must be certified by the State Toxicologist. If the officer is not certified or the certification is expired, the breath test results will be thrown out. Also, the breath test machine itself must be certified by the State Toxicologist. Otherwise, the breath test will be thrown out.
In Washington, the police are required by law to observe a person continuously for a period of no less than 15 minutes prior to giving the person the breath test. This is to ensure that nothing goes in your mouth that may affect the breath test results. In the above scenario, the officer did not observe you continuously; he was walking in and out of the room and filling out paperwork. Furthermore, the observation period here was only 10 minutes. The results here would be thrown out by showing that the officer did not observe you continuously and because he did not observe you for the full 15 minutes required by law.
The police are required to take two breath samples in order for the breath test to be admissible in court. If they take only one sample, it will not come in as evidence against you. In addition the two samples cannot be too far off from each other. There is a formula for determining how far off they can be. In the above scenario, .09 and .15 are too far off from each other for this breath test to be admissible; it would be thrown out of court.
The police must follow the procedure set forth in the Washington Administrative Code when giving you a breath test. First, the officer must clear the machine and get a reading of 0.000. The officer must then use a simulator solution with a known amount of ethyl alcohol to test the machine. After the simulator solution is run through the machine, the officer must clear the machine and get a reading of 0.000 before taking the first breath sample. This procedure must be repeated a second time to get the second breath sample. If the prosecutor cannot prove that these procedures were followed, the breath test will be thrown out of court.
Also, under the Washington Administrative Code, the simulator solution that is used in between breath samples must be certified by the State Toxicologist. The Code sets forth the temperature at which the simulator solution is to be kept. The thermometers that are used to measure the temperature of the simulator solution must also be certified by the State Toxicologist. If not, the breath test will be thrown out of court.
The above rules provide examples of just a few of the many ways DUI lawyers use to challenge breath tests and keep them from coming into court as evidence against you. The breath test is often the strongest evidence the prosecutor has against you, and if it gets thrown out, the prosecutor often has no case. Do not think that just because you blow into the machine and get a reading of .08 or above that you are doomed. There are numerous ways DUI lawyers use to challenge the validity of the breath test, depending on the circumstances and the specific facts of your case.
At first blush, you may think that you have no chance of winning this case, but there are a number of methods DUI lawyers have at their disposal in getting the breath test results thrown out of court. First of all, when two breath samples are taken, the prosecutor must use the result indicating the lower BAC. In this case, it would be .09, not .15.
But .09 is still over the legal limit. You still need to get the breath test thrown out to have the best chance of beating the case. In Washington, the person who gives you the breath test must be certified by the State Toxicologist. If the officer is not certified or the certification is expired, the breath test results will be thrown out. Also, the breath test machine itself must be certified by the State Toxicologist. Otherwise, the breath test will be thrown out.
In Washington, the police are required by law to observe a person continuously for a period of no less than 15 minutes prior to giving the person the breath test. This is to ensure that nothing goes in your mouth that may affect the breath test results. In the above scenario, the officer did not observe you continuously; he was walking in and out of the room and filling out paperwork. Furthermore, the observation period here was only 10 minutes. The results here would be thrown out by showing that the officer did not observe you continuously and because he did not observe you for the full 15 minutes required by law.
The police are required to take two breath samples in order for the breath test to be admissible in court. If they take only one sample, it will not come in as evidence against you. In addition the two samples cannot be too far off from each other. There is a formula for determining how far off they can be. In the above scenario, .09 and .15 are too far off from each other for this breath test to be admissible; it would be thrown out of court.
The police must follow the procedure set forth in the Washington Administrative Code when giving you a breath test. First, the officer must clear the machine and get a reading of 0.000. The officer must then use a simulator solution with a known amount of ethyl alcohol to test the machine. After the simulator solution is run through the machine, the officer must clear the machine and get a reading of 0.000 before taking the first breath sample. This procedure must be repeated a second time to get the second breath sample. If the prosecutor cannot prove that these procedures were followed, the breath test will be thrown out of court.
Also, under the Washington Administrative Code, the simulator solution that is used in between breath samples must be certified by the State Toxicologist. The Code sets forth the temperature at which the simulator solution is to be kept. The thermometers that are used to measure the temperature of the simulator solution must also be certified by the State Toxicologist. If not, the breath test will be thrown out of court.
The above rules provide examples of just a few of the many ways DUI lawyers use to challenge breath tests and keep them from coming into court as evidence against you. The breath test is often the strongest evidence the prosecutor has against you, and if it gets thrown out, the prosecutor often has no case. Do not think that just because you blow into the machine and get a reading of .08 or above that you are doomed. There are numerous ways DUI lawyers use to challenge the validity of the breath test, depending on the circumstances and the specific facts of your case.
Monday, September 14, 2009
SHOULD YOU TAKE THE BREATHALYZER?
In Washington State, you are deemed to have given consent to take a breathalyzer or blood test if you are arrested and the police had reasonable grounds to believe that you were driving while under the influence or were in physical control of a vehicle while under the influence. You do have the right to refuse the tests and the police must advise you of your right to refuse. If you refuse, however, your license will be suspended by the Department of Licensing for 1 year. A DUI conviction has a mandatory license suspension of 90 days. So by refusing to take the breathalyzer, you are exposing yourself to a longer period of suspension than if you took the breathalyzer and were convicted.
The refusal can also be used against you in court to show that you were conscious of your guilt. Although being required to consent to a breathalyzer or blood test when you are arrested for DUI or Physical Control effectively compels you to provide incriminating evidence against yourself, the courts have ruled that this is not unconstitutional. The 5th amendment of the U.S. constitution says that the government may not force you to be a witness against yourself. It has been determined that this applies to testimony only. Because giving a breath sample or a blood sample is not giving testimony, the courts allow the state to compel you to give a sample by threatening to suspend your driver’s license if you do not comply.
You do not have the choice of taking a blood test instead of a breath test in Washington State. Under Washington law, a blood test is given only when 1) you are unable to physically give a breath sample due to some sort of injury or limitation or 2) you are being treated in a hospital. If these circumstances are not present, you do not have the option of taking a blood test rather than the breathalyzer.
Do not confuse these rules with the portable breath test (PBT) that the police try to give you on the side of the road when they first pull you over. The PBTs are unreliable and inadmissible as evidence in court for the prupose of proving your blood alcohol content (BAC) was over the legal limit. The PBTs are only admissible to show that the police had probable cause to arrest you for DUI or Physical Control. There is no implied consent with regard to taking the PBT- you can refuse to take this test without having your driver’s license suspended. You should NOT take this test- it will only be used by the police to build a case against you.
The choice of whether or not you take the breath test at the police station- the breath test that counts- is up to you. It is usually best to take the breath test so that your driver’s license does not get suspended for an entire year and have a DUI lawyer fight to get the breathalyzer results thrown out of court
The refusal can also be used against you in court to show that you were conscious of your guilt. Although being required to consent to a breathalyzer or blood test when you are arrested for DUI or Physical Control effectively compels you to provide incriminating evidence against yourself, the courts have ruled that this is not unconstitutional. The 5th amendment of the U.S. constitution says that the government may not force you to be a witness against yourself. It has been determined that this applies to testimony only. Because giving a breath sample or a blood sample is not giving testimony, the courts allow the state to compel you to give a sample by threatening to suspend your driver’s license if you do not comply.
You do not have the choice of taking a blood test instead of a breath test in Washington State. Under Washington law, a blood test is given only when 1) you are unable to physically give a breath sample due to some sort of injury or limitation or 2) you are being treated in a hospital. If these circumstances are not present, you do not have the option of taking a blood test rather than the breathalyzer.
Do not confuse these rules with the portable breath test (PBT) that the police try to give you on the side of the road when they first pull you over. The PBTs are unreliable and inadmissible as evidence in court for the prupose of proving your blood alcohol content (BAC) was over the legal limit. The PBTs are only admissible to show that the police had probable cause to arrest you for DUI or Physical Control. There is no implied consent with regard to taking the PBT- you can refuse to take this test without having your driver’s license suspended. You should NOT take this test- it will only be used by the police to build a case against you.
The choice of whether or not you take the breath test at the police station- the breath test that counts- is up to you. It is usually best to take the breath test so that your driver’s license does not get suspended for an entire year and have a DUI lawyer fight to get the breathalyzer results thrown out of court
Monday, August 24, 2009
HOW MUCH JAIL TIME WILL YOU GET FOR A DUI?
One of the questions I often get asked as a DUI lawyer is “how much time in jail will I get?” As is often the case in criminal law in Washington State, it all depends on a number of factors. First of all, a DUI is a gross misdemeanor. That means the maximum jail sentence is 1 year and the maximum fine is $5,000. If it is your fourth DUI offense within 10 years, things can get really complicated because you are now looking at a felony, which means the possibility of going to state prison for a term in excess of 1 year. For the purposes of this posting, I will just stick to the misdemeanors and address the felony DUI at a later time.
Your sentence in a DUI case hinges on two main factors: prior convictions and your blood alcohol content (BAC) at the time of arrest. There are statutory maximum sentences for most crimes in Washington State. For many crimes, there is no mandatory minimum sentence in Washington State so the judge can just release you after a conviction, give you credit for time served, or simply just impose a fine. This is not the case with DUIs in Washington. With DUIs, the judge’s hands are tied- the judge MUST give you the minimum sentence if you are convicted of DUI. It is required by law.
If it is your first offense and your BAC was below .15, the minimum mandatory sentence is 24 consecutive hours in jail AND a $350 fine. If you spent the night in jail when you were arrested and released in the morning or afternoon, that doesn’t count- it must be 24 consecutive hours. So even if you spent the night in jail, you will be going back to jail for at least a day if you are convicted of DUI.
If it is your first offense and your BAC was .15 or above, then the minimum sentence is 48 consecutive hours in jail AND a $500 fine. Again you will not get credit for time served on the day of your arrest unless you spent 48 consecutive hours in jail. The maximum fine for a first-time offender with a BAC over.15 is $5,000.
If it’s your second DUI offense within 7 years, the stakes go up dramatically. There is a minimum jail sentence of 30 days and $500 fine if your BAC was below .15. If it was .15 or above, the minimum jail sentence is 45 days. The minimum fine is $700.
If it’s your third DUI in 7 years, you must serve a minimum of 90 days in jail and pay a minimum fine of $1,000 if your BAC was below .15. If it was .15 or above, the minimum sentence required by law is 120 days and the minimum fine is $1,500.
The higher your BAC and the more prior DUI convictions you have, the more severe the penalties are. Keep in mind these are minimum sentences that are only imposed if you are convicted. That is why it is in your best interest to contact a DUI lawyer immediately to fight the charges if you are arrested or charged with DUI in Washington. A DUI lawyer can do a number of things to protect you from a DUI conviction.
Your sentence in a DUI case hinges on two main factors: prior convictions and your blood alcohol content (BAC) at the time of arrest. There are statutory maximum sentences for most crimes in Washington State. For many crimes, there is no mandatory minimum sentence in Washington State so the judge can just release you after a conviction, give you credit for time served, or simply just impose a fine. This is not the case with DUIs in Washington. With DUIs, the judge’s hands are tied- the judge MUST give you the minimum sentence if you are convicted of DUI. It is required by law.
If it is your first offense and your BAC was below .15, the minimum mandatory sentence is 24 consecutive hours in jail AND a $350 fine. If you spent the night in jail when you were arrested and released in the morning or afternoon, that doesn’t count- it must be 24 consecutive hours. So even if you spent the night in jail, you will be going back to jail for at least a day if you are convicted of DUI.
If it is your first offense and your BAC was .15 or above, then the minimum sentence is 48 consecutive hours in jail AND a $500 fine. Again you will not get credit for time served on the day of your arrest unless you spent 48 consecutive hours in jail. The maximum fine for a first-time offender with a BAC over.15 is $5,000.
If it’s your second DUI offense within 7 years, the stakes go up dramatically. There is a minimum jail sentence of 30 days and $500 fine if your BAC was below .15. If it was .15 or above, the minimum jail sentence is 45 days. The minimum fine is $700.
If it’s your third DUI in 7 years, you must serve a minimum of 90 days in jail and pay a minimum fine of $1,000 if your BAC was below .15. If it was .15 or above, the minimum sentence required by law is 120 days and the minimum fine is $1,500.
The higher your BAC and the more prior DUI convictions you have, the more severe the penalties are. Keep in mind these are minimum sentences that are only imposed if you are convicted. That is why it is in your best interest to contact a DUI lawyer immediately to fight the charges if you are arrested or charged with DUI in Washington. A DUI lawyer can do a number of things to protect you from a DUI conviction.
Friday, August 21, 2009
DUI AND PHYSICAL CONTROL: WHAT IS PHYSICAL CONTROL?
In Washington State, "Physical Control” is something like an attempted DUI or a possible DUI that the cops just didn’t have enough evidence to prove. Over the last few decades, DUI laws have become more and more strict. Part of the reason for this is that DUI lawyers were winning too many cases. One of the obvious defenses that we used was that, although the defendant was under the influence of alcohol when the police contacted him or her, the prosecutor could not prove that the defendant was actually driving.
Often times people go to a bar or a party where they have several drinks and then rather than drive home, they decide to sleep in their car to sober up. You would think that law enforcement and our lawmakers would appreciate that. But as I said, DUI lawyers were winning too many cases, so they came up with a new crime called “physical control.”
The problem was that the police were having was that they would find someone asleep at the wheel of a parked car with the engine running and the person turns out to be intoxicated. Well, the police never actually saw this person driving, so how could they prove that he was driving under the influence? They couldn’t. So our lawmakers made it a crime to be in control of a vehicle while intoxicated, whether you’re driving or not.
Now here’s where it gets tricky. What does being in “control” of a vehicle mean? It should say that in the statute, right? It doesn’t. The Washington State law that makes being in physical control of a vehicle while under the influence illegal is RCW 46.61.504. The statute does not explain exactly what physical control is. Does it mean you have to be in the driver’s seat? Does the engine have to be running? Do you have to be in the car at all?
Well, the Washington State Court of Appeals partly answered that question in the case, State v. Smelter. They said that "actual physical control" of a vehicle means that you were in a position to regulate the vehicle's movements OR had authority to manage the vehicle. In that case, they said you’re still guilty of a crime if you’re under the influence and the car is on the shoulder of the road, the engine is off, AND the car is out of gas! The court said that it doesn’t matter whether the car can run or not!
As you can see, the DUI laws have become very strict. It appears that as long as the prosecutor can argue that you had the means to operate the vehicle and you were in a position to do so, you can be found guilty of physical control. This is where DUI lawyers argue with the prosecutor. Are you in “physical control” if you are under the influence and merely standing next to a vehicle? Does it make a difference whether you have the keys to the vehicle? These are among several details that can get more and more minute that may have a significant impact on whether you can be convicted under the physical control law. The only way to resolve certain issues in a physical control case is to contact a DUI lawyer.
Often times people go to a bar or a party where they have several drinks and then rather than drive home, they decide to sleep in their car to sober up. You would think that law enforcement and our lawmakers would appreciate that. But as I said, DUI lawyers were winning too many cases, so they came up with a new crime called “physical control.”
The problem was that the police were having was that they would find someone asleep at the wheel of a parked car with the engine running and the person turns out to be intoxicated. Well, the police never actually saw this person driving, so how could they prove that he was driving under the influence? They couldn’t. So our lawmakers made it a crime to be in control of a vehicle while intoxicated, whether you’re driving or not.
Now here’s where it gets tricky. What does being in “control” of a vehicle mean? It should say that in the statute, right? It doesn’t. The Washington State law that makes being in physical control of a vehicle while under the influence illegal is RCW 46.61.504. The statute does not explain exactly what physical control is. Does it mean you have to be in the driver’s seat? Does the engine have to be running? Do you have to be in the car at all?
Well, the Washington State Court of Appeals partly answered that question in the case, State v. Smelter. They said that "actual physical control" of a vehicle means that you were in a position to regulate the vehicle's movements OR had authority to manage the vehicle. In that case, they said you’re still guilty of a crime if you’re under the influence and the car is on the shoulder of the road, the engine is off, AND the car is out of gas! The court said that it doesn’t matter whether the car can run or not!
As you can see, the DUI laws have become very strict. It appears that as long as the prosecutor can argue that you had the means to operate the vehicle and you were in a position to do so, you can be found guilty of physical control. This is where DUI lawyers argue with the prosecutor. Are you in “physical control” if you are under the influence and merely standing next to a vehicle? Does it make a difference whether you have the keys to the vehicle? These are among several details that can get more and more minute that may have a significant impact on whether you can be convicted under the physical control law. The only way to resolve certain issues in a physical control case is to contact a DUI lawyer.
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