Category Archives: DUI

Independent Blood Tests

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In State v. Sosa, the WA Court of Appeals Div. III decided there is no requirement that an officer performing a blood draw on a DUI suspect must advise the driver that the driver has the right to an independent blood alcohol test.

BACKGROUND FACTS

On March of 2014, defendant Jose Sosa’s vehicle crossed the center line of U.S. Route 12, causing a two-car collision. Mr. Sosa called 911 and law enforcement responded to the scene. On contact, the responding officer noticed Mr. Sosa smelled of alcohol and showed signs of impairment. In response to questioning, Mr. Sosa disclosed that he had some beer earlier but did not provide any specifics. An ambulance transported Mr. Sosa to the hospital.

At the emergency room, a state trooper contacted Mr. Sosa. Again, Mr. Sosa was noted to smell of alcohol and display signs of impairment. The trooper asked Mr. Sosa if he would be willing to do a voluntary field sobriety test. Mr. Sosa did not respond. The trooper then offered to administer a portable breath test (PBT), which would have provided a preliminary indication of Mr. Sosa’s BAC. Again, Mr. Sosa did not respond.

Based on the trooper’s observations, a warrant was obtained to procure a sample of Mr. Sosa’s blood. Three and a half hours after the accident, Mr. Sosa’s BAC was 0.12. Mr. Sosa was arrested and charged with vehicular assault.

Several days after the accident, the driver of the vehicle hit by Mr. Sosa returned to the hospital because of abdominal pain. Doctors performed a lifesaving partial splenectomy. Mr. Sosa’s case proceeded to trial. The jury found Mr. Sosa guilty of vehicular assault via all three of the charged alternatives: ( 1) operating a vehicle in a reckless manner, (2) operating a vehicle while under the influence of intoxicating liquor or drugs, and (3) operating a vehicle with disregard for the safety of others.

On appeal, Mr. Sosa argues evidence of his blood test results should have been suppressed because he was not advised, at the time of the blood draw, of the right to independent testing. Former RCW 46.61.506(6) (2010) stated: “The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. … ” On this argument, Mr. Sosa alleged his constitutional rights were violated.

COURT’S ANALYSIS

The Court reasoned that cases relied on by Mr. Sosa in support of his right-to-advice argument interpret prior versions of the Revised Code of Washington. The statutes in effect at the time of Mr. Sosa’s offense no longer required advice about independent testing in the context of a blood draw:

“Had Mr. Sosa’s offense taken place prior to the 2013 amendment, he undoubtedly would have been entitled to advice about independent blood testing. But this is no longer so. Our case law addressing the implied consent warning has always been based on statutory principles, not constitutional grounds.”

In short, the Court stated there is no independent constitutional right to such advice. Accordingly, any failure of law enforcement to advise Mr. Sosa about the right to an independent test had no bearing on the State’s evidence or Mr. Sosa’s conviction. With that, the court rejected Mr. Sosa’s challenge to his conviction based on the blood test results.

My opinion? Had Mr. Sosa’s offense taken place prior to the 2013 amendment, he undoubtedly would have been entitled to advice about independent blood testing. But this is no longer so. Washington’s implied consent law changed after the U.S. Supreme Court’s decision in Missouri v. McNeely, which held the taking of a DUI suspect’s blood without a warrant violates the suspect’s rights under the Fourth Amendment to the United States Constitution and the exigency exception to the warrant requirement generally does not apply.

 

 

DUI: Men vs. Women

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Great news article from the Bellingham Herald discusses the physiological differences in alcohol impairment levels experienced between men and women.

In Who Gets Arrested More for DUI: Men or Women?,  author Doug Dahl states that over the past couple decades, alcohol-impaired driving has steadily been decreasing, however, the reduction in impaired driving doesn’t apply to women. Dahl is the Target Zero Manager for the Whatcom County Traffic Safety Task Force.

Apparently, in a recent 10-year period, DUI arrests for men decreased by 7.5 percent while DUI arrests for women increased by 28.8 percent.

“According to the CDC, the average weight of an American man is 196 pounds, while the average American woman weighs 166 pounds,” said Dahl.  “Also, because of differences in enzymes, hormones and body fat percentages between men and women, women generally metabolize alcohol at a slower rate.” Simply put, says Dahl, women get drunk faster and stay drunk longer than men:

“To be clear, both of our imaginary people in this example shouldn’t drive. A BAC of .06 will cause impairment. It’s a big enough concern that legislators in some states, including Washington, have proposed reducing the legal limit to .05.”

Mr. Dahl further states that the level of impairment between a BAC of .06 and .09 is significant. According to a study of impaired driving crashes, a driver with a BAC of .06 is about 1.6 times more likely to cause a crash than a sober driver. For a driver with a BAC of .09, that jumps up to 3.5 times more likely. “Don’t judge your own impairment based on how someone else handles the same amount of alcohol, and always have a plan for a safe ride home before going out for drinks,” says Dahl.

Regardless of your gender, please contact my office if you, a friend or relative faces charges of DUI. These charges are serious, threaten careers and can significantly limit one’s driving privileges.

Lower .08 to .05?

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Interesting article from Heather Bosch of KING 5 news reports that Washington state lawmakers are considering lowering the legal limit for driving under intoxication (DUI) from .08 to .05.

“The research shows impairment begins with the first drink,” said Representative John Lovick, D-44th District. “And I believe this after being a state trooper for 31 years.” Lovick said he based his legislation, House Bill 1874, on recommendations from the National Transportation Safety Board.

According to Bosche, however, the American Beverage Institute opposes the bill and similar legislation being proposed in Hawaii and Utah. The industry group claims only a small percentage of deadly car crashes are caused by drivers with a blood alcohol concentration between .05 and .08, and that a 120-pound woman could reach .05 with just little more than one drink. A 150-pound man could reach it after two.

“The move would target responsible and moderate social drinkers while ignoring the hardcore drunk drivers who pose the greatest threat to safety,” said American Beverage Institute Managing Director Sarah Longwell. In short, Longwell says what’s needed is better enforcement of current laws: “We have to focus on the real problem and not be distracted by feel-good legislation that criminalizes perfectly responsible behavior,” said Longwell.

Representative John Lovick agrees that current laws could be better enforced, but says lowering the alcohol limit to .05 would be “a great first step in letting the public know that we are serious about keeping people who drive drunk, off the streets.”

Bosche reports that a public hearing before the House Transportation Committee will be held Tuesday. The bill already cleared the House Public Safety committee, but not without controversy.

“There will be a few ‘no’ votes on this side of the aisle,” Representative Dave Hayes (R-10th District) said during a recent hearing. “My personal viewpoint on this is just the fact that I don’t believe it’s necessary to reduce the blood alcohol level, based on testimony and my own personal experience in processing DUIs.” Hayes is a sergeant with the Snohomish County Sheriff’s Office.  Lovick is the former Snohomish County Sheriff.

The National Transportation Safety Board has said that if every state lowered the legal blood alcohol limit to .05, it would save 1,000 lives every year.

Interestingly, Mothers Against Drunk Driving (MADD) does not support the measure, calling it a “waste of time” because most people who are under .08 can pass field sobriety tests.

State Senate Passes Bill Making Fourth DUI a Felony.

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The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

Many attorneys in Whatcom County and Skagit County claim to represent clients in DUI cases, but not all attorneys have the experience and successes of attorney Alexander F. Ransom.  To learn more about DUI laws or if you have been charged with a driving offense, make your first call count. Call the Law Office of Alexander F. Ransom today.

Strict Liability Offenses

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In State v. Burch, Division II of the WA Court of Appeals held that in order to convict a defendant of vehicular homicide or vehicular assault, the State need not prove that a driver acted with ordinary negligence in the operation of a motor vehicle if it merely proves that the driver was under the influence of alcohol or drugs while driving that vehicle.

In December 2014, Burch was driving across an icy bridge when her truck spun out, slid off the road, and hit two men who were investigating the scene of an earlier accident. One of the men died and the other received serious injuries, including multiple broken bones and a severe ear laceration. Burch was uncooperative with law enforcement officers who responded to the scene. During their contact with Burch, the officers noticed that she smelled strongly of intoxicants.

They restrained Burch and brought her to a hospital to draw blood to test for intoxicants. Testing of that sample showed a blood alcohol concentration of .09, indicating a concentration between .11 and .14 two hours after the accident. The State charged Burch with vehicular homicide and vehicular assault, alleging that she drove or operated a motor vehicle while under the influence of intoxicating liquor or any drug or any combination of the two, in a reckless manner, and with disregard for the safety of others.

The jury found Burch guilty of both vehicular homicide and vehicular assault. In special verdicts, the jury found that Burch had driven while under the influence of intoxicating liquor or drugs, but had not driven recklessly. However, the jury was unable to agree as to whether she had driven with disregard for the safety of others. Burch appealed her convictions.

The Court of Appeals addressed the sole issue of whether the crimes of vehicular homicide and vehicular assault committed while under the influence of alcohol or drugs require the State to prove ordinary negligence in addition to the fact that the defendant was under the influence of alcohol or drugs.

Here, the Court of Appeals disagreed with Burch’s arguments that ordinary negligence is an element of vehicular homicide by driving under the influence of alcohol or drugs.

The Court also reasoned, “Offenses that criminalize a broad range of apparently innocent behavior are less likely to be strict liability offenses.  However, vehicular homicide committed by a driver under the influence encompasses little, if any, seemingly innocent conduct:

“Driving under the influence of alcohol or drugs is itself a serious criminal offense. RCW 46.61.502(1). Therefore, operating a motor vehicle under the influence is rarely, if ever, innocent behavior. Because vehicular homicide while under the influence of intoxicating liquor or drugs requires the State to prove the facts of both impairment and operation of a motor vehicle, the crime necessarily encompasses primarily or solely criminal behavior.”

For those who don’t know, a “strict liability offense” strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state.  In criminal law, possession crimes and statutory rape are both examples of strict liability offences.

With that, the Court of Appeals held that the legislature intended to impose strict liability for vehicular homicide while under the influence of alcohol or drugs: “These considerations, along with the analysis of relevant statutory language above, lead to a single conclusion: the trial court did not err by instructing the jury that it could convict Burch without finding ordinary negligence or any other culpable mental state.”

The Court also held that the legislature intended vehicular assault by driving under the influence to be a strict liability offense, and that the trial court did not err by instructing the jury that it could convict without finding that Burch acted with ordinary negligence.

My opinion? Vehicular Homicide and Vehicular Assault are particularly difficult to mount a legal defense against given the “strict liability” facets of the law. The prosecution does not need to prove intent as long as the offender had drugs or alcohol in their sytstem at the time of the offense. Period.

New Federal Data Shows Decrease in Drunk Driving Rates

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According to reporter Christopher Ingraham of the Washington Post, new federal statistics show that the rate of drunken driving in the United States fell to a 13-year low in 2014, the latest year for which data is available. The rate of driving under the influence of illicit drugs has not changed meaningfully in recent years but remains slightly lower than it was in 2008 and 2009 at the start of the Obama administration.

Here’s a summary of some other findings:

  • In 2014, 27.7 million people aged 16 or older (11.1 percent) drove under the influence of alcohol in the past year, and 10.1 million (4.1 percent) drove under the influence of illicit drugs in the past year. About 7.0 million (2.8 percent) drove under the influence of alcohol and illicit drugs in the past year, including 5.9 million (2.4 percent) who drove under the simultaneous influence of alcohol and illicit drugs in the past year.
  • The percentage of people driving under the influence generally increased with age through the young adult years and then declined with age thereafter; percentages were higher among males than females.
  • The percentage of people aged 16 or older who drove under the influence of alcohol in 2014 (11.1 percent) was lower than the percentages in 2002 through 2012 (ranging from 11.8 to 15.3 percent).
  • The percentage of people aged 16 or older who drove under the influence of illicit drugs was lower in 2014 (4.1 percent) than in 2002 through 2006 and in 2009 through 2010.
  • The percentage of people aged 16 or older who drove under the simultaneous influence of alcohol and illicit drugs was lower in 2014 (2.4 percent) than in 2002 through 2010 (ranging from 2.9 to 3.4 percent).

Ingraham reported that although experts caution that while the trend is heading in the right direction, there’s still a lot of work to be done. “Although it is heartening to see a downward trend in levels of driving under the influence of alcohol, it still kills thousands of people each year and shatters the lives of friends and loved ones left behind,” said Frances Harding, director of the Center for Substance Abuse Prevention at SAMHSA, the agency that produces the survey.

The SAMHSA survey showed that young adults — particularly men ages 21 to 25 — had by far the highest impaired driving rates. More than 1 in 5 men ages 21 to 25 drove drunk in 2014, nearly 1 in 7 drove under the influence of other drugs, and roughly 1 in 12 drove while simultaneously drunk and drugged.

One the other hand, young adults have also seen the greatest reductions in drunken driving prevalence over the past 13 years. Since 2002, the drunken driving rate fell by fewer than three percentage points among drivers age 26 and older. But the rate among drivers ages 21 to 25 dropped by more than 10 percentage points. And the prevalence among the youngest drivers, ages 16 to 20, fell by more than half.

Ingraham reports there’s no single factor driving the decline in drunken driving rates. The Centers for Disease Control and Prevention credits interventions like strong drunken driving laws, public awareness campaigns, and ignition interlock systems that don’t allow drunk drivers to start cars.

Some states are experimenting with innovative programs that essentially take away the right to drink alcohol, period, for people convicted of certain alcohol-related crimes. There’s also evidence that ride-sharing services like Uber can reduce drunken driving rates, although not all researchers agree on this.

My opinion? This is extremely good news. Although it’s important to save lives by reducing traffic accidents through education, prevention, and all other possible measures; it’s equally important that defendants facing these criminal charges hire capable and competent defense counsel as soon as possible to protect their rights, review the evidence and ensure a fair trial when necessary.

Contact my office for a free consultation if you, a friend or family member face DUI or related charges.

What Happened After Voters Legalized Recreational Marijuana?

Reporter Christopher Ingraham of the Washington Post wrote an article discussing how that the availability of recreational marijuana — in Colorado and elsewhere — is having little to no effect on teens’ propensity to smoke weed.

COLORADO

In his article, Ingraham supports his claim with the official statistics out of Colorado through 2015. It’s also what federal data shows nationwide through this year. And it’s also backed up by other federal surveys of drug use in the states where marijuana is legal.

It appears the data on this point has been consistent enough that longtime skeptics of the merits of marijuana legalization, like Nora Volkow of the National Institute on Drug Abuse, are expressing surprise at the findings. “We had predicted based on the changes in legalization, culture in the U.S. as well as decreasing perceptions among teenagers that marijuana was harmful that [accessibility and use] would go up,” Volkow told U.S. News and World Report earlier this month. “But it hasn’t gone up.”

WASHINGTON

However, a study out Tuesday in the journal JAMA Pediatrics flies somewhat in the face of the new conventional marijuana wisdom. Examining marijuana use among high school students in Washington state two years before and after the vote to legalize in 2012, it finds that rates of marijuana use increased by about 3 percent among 8th- and 10th-graders over that period.

INTERPRETING THE FINDINGS

The authors posit that reduced stigma about marijuana use is one factor leading to the results that they observed.

“Our study suggests that legalization of marijuana in Washington reduced stigma and perceived risk of use,” said lead author Magdalena Cerdá of the University of California in Davis in a news release, “which could explain why younger adolescents are using more marijuana after legalization.”

The findings are something of a puzzle. The study found no change in marijuana use among 12th-graders in Washington state, which the authors said could be because the 12th-graders in the study were old enough that “they had already formed attitudes and beliefs related to marijuana use” before the legal change.

The study also found no change in use among students at any grade level in Colorado. The authors write that Colorado had a robust medical marijuana industry in place well before full legalization, which may have affected youth attitudes and behaviors there before the study period.

Among adolescents, the perceived harmfulness of marijuana has been declining for decades among all age groups. But at the same time, adolescent use of marijuana has been flat or falling. This has led some researchers, including Mark Kleiman of New York University, to rethink the nature of the link between what teens think about weed and whether they use it.

In an email, Kleiman pointed out that in Washington state, the recreational marijuana market didn’t open until halfway through 2014, and then only in limited form. That’s halfway through the “after” period (2013 to 2015) in the JAMA Pediatrics study.

“The effect of the legalization initiatives themselves on price and availability of cannabis really wasn’t felt until after” the study’s surveys were done, Kleiman said. “Any measured effect would be more likely the result of the political campaign around legalization than legalization itself.”

Indeed, the study’s authors agree with that assessment. “Simply legalizing an activity can change people’s views about it and can change their behaviors as well,” said co-author Deborah Hasin of Columbia University in an email.

 

Holiday Drinking In The U.S.

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.

THE NORTHEAST

New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheeseheads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.

THE NORTHWEST

Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.

RELIGIOUS STATES

Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.

HOLIDAY DUI PATROLS IN WASHINGTON STATE

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Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.

SEEK COMPETENT LEGAL REPRESENTATION IF YOU FACE CRIMINAL CHARGES THIS HOLIDAY SEASON.

For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

Happy holidays!

-Alex Ransom, Esq.

State v. Murray: Improper Implied Consent Warnings Held Unimportant

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In State v. Murray, the WA Supreme Court held that DUI breath test results should not be suppressed even though the police officers who informed defendants did not properly inform the defendants of THC warnings. In February, I discussed Robison’s Court of Appeals decision to suppress the BAC test before the WA Supreme Court re-addressed the issue on this most recent appeal.

Late one night, a state trooper observed Robison speeding through a restaurant parking lot toward a road. The trooper had to hit his brakes to avoid a collision as Robison exited the parking lot. The trooper decided a traffic stop was in order. The trooper could smell both alcohol and cannabis coming from Robison’s car. The officer investigated Robison for Driving While Under the Influence of Intoxicants (DUI). Robison performed poorly on field sobriety tests and agreed to take a roadside breath test.

Based on the results, the officer arrested Robison for suspected driving under the influence (DUI) and took him to a police station. At the station, the trooper read Robison an implied consent warning from a standard form’s that did not mention the new statutory language concerning THC. The form warning did warn Robison that he was subject to having his driver’s license suspended, revoked, or denied if the test revealed he was under the influence of alcohol.

Robison argued a 3.6 motion to suppress the results of the breath test, arguing that the implied consent warning was inadequate because it did not mirror the statutory language regarding the consequences of a finding of THC in his blood. The district court commissioner concluded that the warnings accurately informed the defendant that the result of a breath test would reveal the alcohol concentration of his breath and that it would be misleading to advise or imply to the defendant that the breath test could obtain a THC reading.

Robison was found guilty. Robison appealed to the superior court, which reversed, concluding the officer had no discretion to leave out a portion of the implied consent warning. The Court of Appeals affirmed the decision to suppress, and the WA Supreme Court accepted review on the State’s appeal.

Ultimately, the Court affirmed the lower courts and upheld Robison’s conviction. A driver’s implied consent to a breath test for alcohol, and the arresting officer’s duty to warn of the potential consequences of the test, have been part of our statutory system for decades. Both the legal consequences of driving while intoxicated and the details and exactitude of the warning required by the legislature have changed during that time. For example, Initiative 502, which decriminalized the recreational use of cannabis, also amended the implied consent statute. In relevant part, the amended implied consent statute said:

“(c) If the driver submits to the test and the test is administered, the driver’s license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if: (i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver’s breath or blood is 0.08 or more or that the THC concentration of the driver’s blood is 5.00 or more.”

Robison argued that since some of the statutory language was omitted during his DUI investigation, the tests must be suppressed.

However, the WA Supreme Court disagreed:

“We find no case, and none have been called to our attention, that require officers to read an irrelevant statutory warning to a driver suspected of DUI. Instead, as acknowledged by counsel at oral argument, it has long been the reasonable practice of arresting officers to omit warnings related to underage drinking and commercial drivers’ licenses when advising those over 21 or driving on a noncommercial license.”

The Court further reasoned that the Implied Consent warnings did not omit any relevant part of the statute, accurately expressed the relevant parts of the statute, and were not misleading. Accordingly, the warnings substantially complied with the implied consent statute and the test results were properly admitted.

With that, the WA Supreme Court reversed the Court of Appeals and reinstated Robison’s convictions.

My opinion? Bad decision. Like I said before, DUI investigations involving Implied Consent Warnings must keep up with today’s legislative amendments and other changing laws. The law is the law.

Court Denies Prosecutor’s “Missing Witness” Jury Instruction in DUI Case.

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In State v. Houser, the WA Court of Appeals Division I held that in a DUI trial, Prosecutors are not entitled to a missing witness jury instruction if the real driver’s testimony would implicate themselves in the crime of failing to remain at the scene of a collision.

On May 19, 2013, defendant Steven Houser was involved in a car accident. He knocked on the door of nearby residence. The occupants observed Houser seemed excited and somewhat disoriented. He answered only a few questions and gave slow responses.

Emergency medical technicians arrived shortly after and attended to Houser. State Patrol Troopers noticed Houser had a swollen lip, bloodshot, watery eyes, and a flushed face. Houser told the trooper he had driven off the road and hit a pole. Houser said he had three to four beers that night and that he had been drinking all the way from a friend’s house to the scene of the accident.

The Trooper asked Houser if he was willing to submit to field sobriety tests. Houser agreed, and the trooper performed the horizontal gaze nystagmus test, which indicated impairment. Houser then agreed to a voluntary portable breathalyzer test. When the troopers arrested him, Houser became agitated and hostile, yelling, “I wasn’t even driving. My buddy was driving” and that they could not prove Houser was the driver.

After impounding the truck, the Troopers took Houser to the hospital and applied for a blood draw. He confirmed he had consumed alcohol within the last 24 hours, but denied driving. Houser’s blood draw registered a blood alcohol content level of 0.19, which was more than twice the legal limit. Houser was charged with felony DUI due to prior convictions.

At trial, Houser testified that a friend named “Gary” drove Houser’s truck because Houser had already been drinking beer. After getting some marijuana, they drove to a grocery store and Houser continued to drink beer. They then began driving to another friend’s house, and got into the accident along the way. Houser testified Gary was driving and Houser was in the passenger seat when the accident occurred. Houser remembered going off the road, but did not remember getting out ofthe truck. He testified that Gary did not remain in the truck, but did not know what happened to him. Houser did not know how Gary got out of the truck or whether he was injured. He testified he had not been in contact with Gary since the accident, did not know how to contact him, and had not tried to contact him.

None of this information about “Gary” was provided to the Prosecutor before Houser testified.

After both sides had rested, the Prosecutor requested a missing witness jury instruction. For those who don’t know, the “missing-witness” rule—which developed from a century-old U.S. Supreme Court decision, Graves v. United States, 150 U.S. 118 (1893)—allows one party to obtain an adverse inference against the other for failure to call a controlled witness with material information.

Houser objected to the jury instruction, noting he had been unable to conduct an investigation to find Gary. The trial court allowed the instruction and permitted the State to refer to the defense’s failure to call Gary to corroborate Houser’s  theory of the case in its closing argument. The jury found Houser guilty.

Houser appealed. He argued his conviction should be reversed because the trial court misapplied the missing witness doctrine and improperly instructed the jury.

The Court of Appeals agreed with Houser.

The Court reasoned that the missing witness rule permits the jury to infer that evidence or testimony would be unfavorable to a party if that “‘evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it'” and that party fails to do so.

The Court emphasized the missing witness instruction “should be used sparingly.” Furthermore, the limitations on the application of the missing witness rule are particularly important when, as here, the doctrine is applied against a criminal defendant. “The doctrine applies only if several requirements have been satisfied,” said the court.

The court also reasoned the rule does not apply where the missing witness’s testimony, if favorable to the party who would naturally have called the witness, would necessarily be self-incriminating. The court reasoned that here, Houser testified that Gary was driving, Houser was in the passenger seat when the accident occurred, and Gary did not remain in the truck.

“Houser also testified about his injuries,” said the Court. “Thus, if Gary corroborated Houser’s testimony, Gary would necessarily have incriminated himself for failing to remain at the scene of an accident.” Since the core of Houser’s defense was that he was not driving; and that giving a missing witness instruction and allowing the Prosecutor to comment on Gary’s absence here substantially undercut Houser’s defense.

While there was evidence sufficient to support a conviction, there was not overwhelming evidence of guilt. Therefore, we cannot conclude the missing witness instruction, in combination with the prosecutor’s multiple references to Gary’s absence, was harmless.

The court reversed Houser’s conviction.

My opinion? Good decision. I’ve conducted jury trials where the Prosecutor has tried admitting Missing Witness Jury Instructions in the midst of trial. Luckily, most judges know these instructions should be used sparingly.

Worst-case scenario, Missing Witness Jury Instructions shift the burden to the Defendant to prove their defense. This small, yet subtle burden-shift has incredibly damaging implications which ultimately violate a defendant’s rights at trial. Remember, it’s the State – and not the defendant – who carries the burden of proof. The defendant has no burden of proving anything unless the defense is self-defense or other defenses requiring expert witnesses.