ARE BREATH TEST RESULTS COMING BACK INTO EVIDENCE IN KING COUNTY DUI CASES?

As I have previously written, breath tests have been excluded from evidence in King County District court DUI cases for quite some time now because of the case, State v. Ahmach. In that case, a 3-judge panel in The Redmond District Court had ruled that because there were so many procedural problems as well as fraud involved at the State Toxicology Lab, the breath tests cannot be considered reliable and the will be suppressed until the State can demonstrate that the problems with the Lab have been corrected. Since this decision, DUI lawyers, including myself, have been filing "Ahmach motions" at DUI arraignments and have been getting the breath test results thrown out.

A few months ago, the King County Prosecutor filed a motion for a hearing to show the court that the problems in the Lab have been corrected and get breath tests admitted in evidence once again. The prosecutor has "randomly" selected a number of recent DUI cases where there was a breath test as part of evidence to show that the problems have been corrected at the State Toxicology Lab.

A team of DUI lawyers is opposing the prosecutor's motion and have selected their own cases to show that the problems at the Lab still exist and the breath test results should not be allowed into evidence.

The 3-judge panel reconvened in Redmond District court a couple weeks ago to hear testimony. Both sides will be presenting argument at a hearing on August 26th at 8:45 a.m. in the Redmond District courthouse. I plan on personally attending this hearing and will write another post regarding the outcome at that time.

WHY BREATH TEST RESULTS ARE EXCLUDED IN KING COUNTY DUI CASES: NEGLIGENCE AND FRAUD IN THE STATE TOXICOLOGY LAB

I've been meaning to write a post on this issue for quite some time now. Today I'm writing about one of the most important cases for DUI lawyers and those charged with DUI in the Seattle-King County area. Since January 30, 2008, breath tests have been excluded from evidence in DUI cases filed in King County District Courts as long as the defendant filed an "Ahmach" motion. State v. Amach was a case in which three separate defendants in DUI cases made motions to suppress the breath tests in their cases on the grounds that the State Toxicology Lab was so deficient, that breath tests were too unreliable to be helpful to a jury.

In January of 2008, in the NE Divison of the King County District Court, a 3 judge panel took live testimony from experts and others who worked in the State Toxicology Lab and decided the issue of whether breath test will be admitted in court to prove that a person's BAC was over the legal limit. The 3 judge panel found numerous problems with the State Toxicology lab.

In Washington State, police use a machine called the BAC Verifier DataMaster to test the a person's blood alcohol content (BAC). This machine must be properly checked, calibrated and maintained. This is done by using an external simulator solution with a known amount of alcohol. The solution is prepared, tested, and certified by the State Toxicology Lab.

The external simulator solution is also used in the administration of every breath test. First, the machine is cleared to get a reading of 0.00. Next, the operator of the machine runs the external simulator solution through the machine to ensure that the machine is running properly. After the operator verifies that the machine is giving a reading that is in agreement with the alcohol content that the State Toxicology Lab has certified is in the solution, the machine is cleared again to get another reading of 0.00. At this point, the defendant blows into the machine and the machine will print out a ticket indicating that person's BAC.

As you cans see, the accuracy of the machines is dependent on accurate batches of simulator solution, and the reliability of each breath test administered to a DUI arrestee is also dependent on the State Toxicology Lab's accuracy in certifying the simulator solution.

Now let's get to the problems that the 3 judge panel found. First, the person charged with the duty of certifying under the penalty of perjury that she herself had tested the batches of simulator solution and could verify the alcohol concentration in each batch in fact never tested the batches. She had other people test them and she just signed off saying that she tested them and verified the alcohol content. This was happening from August, 2003 to August, 2007

Second, the State Toxicology Lab was using defective software. 16 analysts were to record their data from tests performed on a spreadsheet. Due to defective software, data from 4 out of the 16 analysts was routinely omitted. This affected, the accuracy, precision, and reliability of the test results on the simulator solution.

Next, the State Toxicology Lab uses gas chromatography machines in testing the simulator solution. One of these machines malfunctioned and was never repaired. This machine was still used in making laboratory calculations even after several analysts were aware that it was not working properly. This affected test results.

The court found that there were at least 150 errors caused by the analysts entering incorrect data and incorrect values for controls and certifying test results before the solutions had even been prepared.

The court also found that simulator solution logbooks were not recorded properly and that analysts were discarding test results for unknown and unrecorded reasons.

The inaccurate calculations made in certifying numerous batches of simulator solutions affected thousands of breath tests given to people arrested for DUI in Washington.

Because of all of these deficiencies in the State Toxicology Lab, the 3 judge panel found that the breath test results were not reliable and granted the motions to suppress the evidence. The Ahmach decision has been in effect in all King County District Courts since January of 2008. The panel said that the breath tests will continued to be suppressed until the prosecutor can show that the State Toxicology Lab has corrected its problems to the extent that breath test can once again be considered to be reliable.

MAN SENTENCED TO 3 YEARS FOR HIS 11th DUI

Last night, Dwight David Benson was sentenced in Seattle Municipal Court to 3 years in jail for his 11th DUI. He was sentenced to 3 years in jail, which is an unusually high sentence for Municipal Court. I am in that court all the time and was there this morning in fact.

The media covered this sentence and people have been debating whether this sentence was justified. Many argue that he should have been sentenced to 3 years in jail a long time ago- He does have ELEVEN prior DUIs.

The maximum sentence for a misdemeanor is 1 year in jail. DUI is a misdemeanor in Washington- unless a person gets convicted of four DUIs within seven years- then it's a felony. I know that Mr. Benson has not had 4 convictions with in the last seven years because he would have been charged with a felony and the Municipal Court would not have jurisdiction, so he would have to be sentenced in Superior Court.

If you have been convicted of 2 or 3 DUIs within the last seven years, and your blood alcohol content was over .15, then the MAXIMUM sentence allowed by Washington State law is imprisonment for "no more than one year and one hundred fifty days of electronic home monitoring."

Here's my question to all of you: If Mr. Benson is being charged with a misdemeanor in Municipal Court and therfore can only be sentenced to a maximum of one year in jail and 150 days of electronic home monitoring, then HOW DID HE GET 3 YEARS???

I haven't seen the court docket and the media hasn't been helpful in explaining this, so I don't know. I have a few ideas, but I'm interested in finding out what everyone else thinks. How did Mr. Bensen get sentenced to 3 years in jail for a DUI when the longest possible sentence is 1 year in jail and 150 days of EHM?

AMISH MAN DRIVING HORSE AND BUGGY CHARGED WITH DUI IN PA- SAME RESULT IN WASHINGTON?

Last month, an Amish man who was driving a horse and buggy was charged with DUI in Lancaster County, Pennsylvania. The man was observed weaving between lanes and was found unconscious at and slumped over while holding the reigns at the time police made contact. I am not familiar with the DUI statutes in PA, but I would address whether a DUI conviction would stand in the Washington State given the same facts.

I have previously written about what constitutes a vehicle for purposes of being charged with Driving Under the Influence (DUI) in Washington.

You do not have to be driving an automobile in Washington to be convicted of DUi; you can be riding a bike. 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. . .

"Vehicle" is defined in RCW 46.04.670:

"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. (Emphasis added).

So since the Amish man was driving a horse and buggy, he could not be convicted of DUI under Washington law because the term, "vehicle" does not include devices moved by human or animal power other than bicycles.

DUI ARESTEES FORCED TO SIT IN JAIL FOR 4 NIGHTS OVER NEW YEAR'S WEEKEND

New Year's Eve has long been one of the biggest nights for DUI arrests. Unfortunately, because New Year's Eve was last Thursday night, many people who were arrested for DUI weren't be able to see a judge to set bail until today- Friday was New Year's day, a holiday, and then we had Saturday and Sunday, days on which the courts are closed.

Under the holding of the U.S. Supreme Court decision in Gerstein v. Pugh, defendants who have been arrested without a warrant in a criminal case have the right to a prompt judicial determination of probable cause. In County of Riverside v. McLaughlin, the U.S. Supreme Court set a time frame in which a defendant in a criminal case is entitled to a Gerstein hearing. In McLaughlin, the Court held that when a jurisdiction in which probable cause determinations are combined with other pretrial hearings, i.e. arraignments, the court must conduct the probable cause hearing as soon as feasible, but no later than 48 hours after arrest. That means that individuals arrested on a Wednesday night have the right to see a judge for a probable cause determination and the setting of bail by Friday night.

In practice, I have seen individuals sit in jail without the opportunity to see a judge until 48 hours have passed. In Mclaughlin, the Suprme Court clearly stated that when 48 hours have passed , the burden is on the government to show some sort of emergency circumstances. The government cannot use weekends or intervening holidays as an excuse as to why the defendant did not receive a probable cause hearing within 48 hours. Yet, I have already been made aware of at least one DUI arrest that occurred on New Year's Eve in which the arestee has been denied a probable cause hearing until today due to the prolonged holiday weekend. This practice is unconstitutional.

INVESTIGATOR DRIVES DRUNK TO CRIME SCENE AND GETS DUI

A Snohomish County investigator was just fired a couple weeks ago in a very ironic sequence of events. On November 29, 2009, there was a car accident that resulted in the deaths of four people in Everett, Washington. Police believe the accident to be caused by drunk driving. When the investigator from the Snohomish County Medical Examiner's office drove up to investigate the scene, the police smelled the odor of alcohol on his breath. They gave the investigator a breath test and cited him from drunk driving! The investigator was there to presumably gather evidence against a drunk driver and found himself being charged with DUI at the very crime scene he was investigating

SLEEP DRIVING: CAN YOU BE CHARGED WITH DUI AFTER TAKING SLEEPING PILLS?

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.