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.
Saturday, October 24, 2009
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.
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