Monthly Archives: January 2013

Supreme Court Wary of Warrantless Blood Tests in DUI Cases

Good stuff. The Supreme Court is considering requiring police to get a search warrant before forcing drunken-driving suspects to have blood draws.

http://seattletimes.com/avantgo/2020097394.html

In State of Missouri v. McNeely, the defendant was pulled over for speeding. He failed field sobriety tests and refused to take a breath test. The officer then took McNeely to a nearby hospital, where a technician drew blood over the handcuffed suspect’s objection. The legal issue is whether blood draws taken under these circumstances violate a defendant’s Constitutional rights. If so, the blood test  is suppressed and inadmissible to a jury if the case proceeds to jury trial.

The prosecution argues that getting a nighttime warrant takes an average of two hours, by which point a person’s blood-alcohol level may have dropped below the legal limit.  Alcohol typically dissipates in the bloodstream at a rate of 0.015 to 0.020 percentage points an hour. The limit in Missouri is 0.08 percent.

McNeely’s defense attorney argues that Missouri’s Implied Consent law allows drivers the right to refuse a blood test. All 50 states have implied-consent laws in some form. In short, Implied Consent law says drivers who refuse a blood or breath test automatically lose their license for a year.

My opinion? Police should get warrants. Period. Getting a warrant is the proper remedy when defendants exercise their Constitutional rights. Also, it doesn’t take long to get one. Police can call a judge while driving a defendant to the jail. Judges typically issue warrants over the phone.

Due to the passage of I-502, this issue is especially relevant in WA. I-502 allows for citizens to possess small amounts of marijuana. Unfortunately, when it comes to DUI arrests, I-502 set the legal limit for THC is the bloodstream at only 5 nanograms. This is a very low amount, especially for citizens who are licensed to smoke marijuana.

In other blogs I predicted that the passage of I-502 would probably convince law enforcement to immediately transport citizens investigated for DUI straight to the hospital to undergo blood tests. Blood draws are necessary to determine nanogram levels (they also detect alcohol levels). I also predicted that unlawfully obtained blood tests would soon become the subject matter of intense pretrial litigation. Was the officer trained in drug DUI detection? Was the blood draw performed by someone who is medically licensed? Was it performed within 2 hours of the defendant being pulled over? Was the blood test tampered with? Can the prosecution properly establish the chain of custody of all persons who handled the blood sample? And now, according to the above case, can law enforcement simply circumvent the warrant requirement and obtain blood draws if the defendant refuses?

All of these issues are the subject matter of intense legal arguments. A good trial attorney will argue pretrial motions to suppress unlawfully obtained and/or tainted evidence. Yes, this pending case is a big deal.

We’ll see what happens. . .

Legislature Considers Adding a Fourth Whatcom County Superior Court Judge

Good news: local lawmakers are sponsoring a bill to bring another judge to Whatcom County Superior Court.

http://www.bellinghamherald.com/2013/01/23/2849732/legislature-to-consider-fourth.html

This good news is long overdue. As the article states, Whatcom  County hasn’t added a Superior Court judge since 1972. Skagit County, with 58 percent of Whatcom’s population, already has four judges. Backlogs in criminal and especially civil cases have been a problem for more than a decade.

My clients want their day in court. They want me to argue pretrial motions, suppress evidence and/or dismiss cases. Some clients remain in custody because they can’t afford the high bail amounts. Others want immediate jury trials. In all cases, judges are needed to make decisions. Unfortunately, today’s backlog makes it very difficult to simply access a judge. I’m competing for time with other criminal attorneys, civil attorneys, judicial training, vacations, holidays, etc. Obtaining a fourth judge allows us to set more jury trial dates and clean out the backlog on civil cases.

Being an active trial attorney, I welcome more opportunities to advocate on behalf of clients facing DUI, assault, property crimes, drug crimes, etc. Again obtaining a fourth judge is a step in the right direction.

Jury Nullification Bill Gaining Momentum

Interesting. There’s pending legislation from Georgia on jury nullification.  Titled, The Fully Informed Jury Act of 2013, this bill would ensure jurors are informed of their rights, including the right to acquit defendants because the law was seen as unjust and/or unconstitutional. For those who don’t know, jury nullification in a criminal trial is what happens when a jury effectively nullifies the law in that specific case by acquitting the defendant, regardless of the weight of evidence against them.

http://www.sodahead.com/united-states/state-bill-calls-for-jurors-to-be-informed-of-jury-nullification/question-3462687/

My opinion? I hope the law passes. As a juror, it is your duty to protect our citizens by sending criminals to jail; however, if you believe the defendant is being prosecuted under an unjust law, you have the right, and the constitutional and moral obligation to protect the defendant from tyrannical government and acquit.

Does nullification happen often during trial? No. Although I’ve been instructed via the Prosecutor’s pretrial motions to NOT argue for nullification – and I’ve conducted numerous criminal jury trials for DUI, drug possession, assault, sex crimes, property crimes, etc. – I’ve never blatantly asked a jury to nullify anyway. First, I’ve always thought jurors would consider nullifying under their own volition, and without my behest.

Second, I’ve always feared that prosecutors and judges would probably frown upon my asking jurors to nullify. In short, jury nullification encourages jurors to not follow the law. This is big. After all, jury trials are a very expensive use of the Prosecutor’s and court’s time. And at the end of the day, these parties do not want to encourage citizens to acquit people on the basis that the law itself is unjust.

Still, and as the article illustrates, during the first century of the U.S. it was common practice for judges to inform jurors of this right as part of their instructions. Prior to the Civil War and thanks to jury nullification, many abolitionists and slaves  were safeguarded and set free by juries when prosecuted for participating in the Underground Railroad in violation of the Fugitive Slave Act. Jury nullification was also successful in acquitting defendants whoe were prosecuted during the alcohol prohibition era.

And when you think about it, a juror’s right to nullification, to be judge of both the facts and the application of the law, is enumerated in many State Constitution’s Right to trial by jury; which outline the number of jurors; selection and compensation of jurors. Most constitutions state, “In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.”

Let’s see where this goes . . .

DOL Fees Increase for Those Challenging Their Driver’s License Suspensions Resulting From DUI Charges

Look out – it’s now much more expensive to challenge the Washington State Department of Licensing’s (DOL) suspension of your license if you’re charged with DUI. The DOL recently raised the cost of an administrative hearing from $200 to $375.

Some background is necessary: in the past, defendants charged with alcohol-related driving crimes such as Driving Under the Influence (DUI), Physical Control, or Minor Driving After Consuming Alcohol (Minor DUI) had a reasonable opportunity to save their driver’s licenses from getting suspended. This “opportunity” was given by applying for a DOL hearing before a Hearing Examiner within 20 days of being arrested. The Hearing Examiner looks at (1) whether the stop was lawful, (2) whether there was enough evidence to arrest for DUI, (3) whether the defendant was given their Implied Consent Warnings under RCW 46.20.308, and (4) whether the defendant BAC’d at over .08 or refused the breath test.

Competent attorneys representing DUI defendants at these hearings stood the chance of stopping the automatic suspension/revocation of the client’s driver’s license (there’s LOTS of caselaw and WAC provisions surrounding this area of law).

The hearing used to cost only $200. Now it’s $375. This is almost DOUBLE the cost.

My opinion? The DOL appears to be discouraging people from seeking an administrative hearing. This law is a veiled attempt to prohibit the due process rights of people charged – and not yet convicted – of DUI. In other words, the DOL simply wants defendants to forego their right to a DOL hearing and install an IID.

Also, if we look at the passage of this law in conjunction with the increased monitoring of Ignition Interlock Devices IID’s (starting January 1, 2013, IID’s now require cameras), we can safely opine the WA Legislature is cracking down on DUI defendants. Indeed, a recent informal survey of National DUI attorneys confirmed that Washington State has the highest administrative costs for a DOL hearing and at least one state grants these hearings for FREE.

Consult an experienced attorney if you’re chaged with DUI. The DOL implications are increasingly staggering.  Please call Tario & Associates at (360) 671-8500. I’m happy to answer your questions.

New DUI Law: Ignition Interlock Devices Now Take Pictures of Driver

Starting January 1, 2013, people charged with DUI and having their driver’s licenses suspended or revoked by the Department of Licensing (DOL) will undergo more monitoring. Starting January 1, a camera will snap a picture every time their Ignition Interlock Device is used, verifying that the driver is the person who took the test.

http://www.king5.com/news/local/Photo-now-part-of-WA-drivers-breath-test-185084051.html

Interlocks are required on the vehicles whose drivers have been caught driving impaired. They allow those drivers to continue to use their cars, but only after making sure they are sober. Anyone caught trying to fool the machine will get recorded and that information will go to Washington State Patrol. Drivers can lose their Ignition Interlock License as a result. Apparently, impaired drivers often ask passengers, friends or even children to take the test for them, said Washington State Patrol Lt. Rob Sharpe.

“We’ve even heard stories of people trying to use portable air compressors to take the test,” he said.

My opinion? I respect the implied need for increased safety, however, this new law seems invasive and unnecessary. I haven’t heard of any traffic accidents where someone faked blowing into their Ignition Interlock Device in some way, shape or form. Why is there a need for increased monitoring of people convicted of DUI if something horrible hasn’t yet happened?

The passage of this law is another reminder to hire a competent defense attorney if you’re charged with DUI. Good representation might save your license from getting suspended/revoked and an Ignition Interlock Device installed on your vehicle.