Category Archives: Department of Licensing

“Studies” Show Pot-Related Accidents Doubled from 2013-2014



Newly released data from the Washington Traffic Safety Commission (WTSC) shows that marijuana is increasing as a factor in deadly crashes. The number of marijuana-impaired drivers involved in accidents has nearly doubled at a 48% increase from 2013 to 2014.

“We have seen marijuana involvement in fatal crashes remain steady over the years, and then it just spiked in 2014,” said Dr. Staci Hoff, WTSC Data and Research Director.

Also , Julie Furlong of the WTSC said 60% of the drivers involved in fatal or deadly crashes between 2010 and 2014 were tested for drugs. Of those tested, about 20% were positive for pot. These figures match those of previous years, they remained about the same year after year.

New testing and new analytics are now allowing the WTSC to determine specific THC levels at the time the driver is tested following an incident or crash. It’s called “active THC,” or enough to impair the driver’s coordination and judgement.  According to the WTSC, less than half of drivers who tested positive for pot in 2010 had active TCH. However, that number increased to 65% in 2013, and skyrocketed to 85% in 2014.

Dr.Staci Hoff, Data and Research Director for the Commission, says that simply means 85% of the drivers involved in deadly-fatal collisions in 2014 who had pot in their system were actually high at the time of the accident.

Young men between the ages of 21-25 have seen the greatest jump,  with over a 66% increase.

Some argue these facts show that since the legalization of marijuana in Washington state, we now face a potential epidemic of impaired drivers who are high behind the wheel. As a consequence, the National Drive Sober or Get Pulled Over campaign is gaining momentum. From now through Labor Day, extra law enforcement officers are patrolling areas and locations where DUI is a problem.

Over 100 law enforcement agencies including all districts of the Washington State Patrol will be teaming up and participating in the extra patrols all across the state. These extra patrols are all part of Target Zero—striving to end traffic deaths and serious injuries in Washington by 2030.

My opinion?

First, only 60% of fatal car crash victims were tested for drugs. Without understanding how this 60% was arrived at, we run the risk of a data selection bias.

Second, if 20% of the group tested positive for marijuana then this only reflects the actual percentage of cannabis users in the state; which, by itself, is not a very convincing argument of anything.

Third, we need more data. You can’t jump to conclusions based on data that’s too new. It needs more time to be compared against other factors. We don’t hear anything else about possible confounding factors to this data, which also raises serious suspicions. However even this admission whittles marijuana as the sole culprit down to maximum of 10% of all fatal crashes.

Fourth, the data comes on the heels of new DUI emphasis patrols. Sounds like a media spin to me.

Finally, what we really need to know is how many fatal accidents occurred solely for users of marijuana over the limit. This number would be the best indication of a causal relationship if confounding factors were accounted for and the sample size was unbiased.

States With the Highest DUI Arrests

top 50 states

Today, a national study on DUI arrests was released by Project Know,a drug addiction resource center that combats substance addiction and the societal issues that stem from it. In it, they sifted through data from federal agencies to figure out where you are most likely to get arrested for a DUI, per capita.

For example, Seattle had 2,861 DUI incidents in 2013, which puts its DUI arrest rate at 43.8 per 10,000 residents—slightly lower than Washington’s 2013 rate of 49.8. There were more DUIs in Seattle in 2013 than in 2012 or 2011 and, so far this year (up to November 16th), there have been 2,588, which should put the end-of-year total at about the same level as 2013’s.

My opinion? Interesting projections. Let’s see data showing the lobbying efforts and financial contributions of different anti-drinking-&-driving groups like Mothers Against Drunk Driving (MADD) . I wonder if their efforts have anything to do with the projections and proactive enforcement of DUI laws in Washington? Just a thought.

Didlake v. DOL: Fees for DOL Hearings Held Constitutional

Cost of a DUI

Here’s an interesting opinion on the ever-increasing financial costs of fighting DUI crimes and the Department of Licencing’s (DOL) automatic suspension of a DUI defendant’s driver’s license.

In Didlake v. Department of Licensing, the Court of Appeals held that Washington’s Implied Consent Statute, RCW 46.20.308, which requires drivers arrested for DUI to pay a $200-$375 statutory fee in order to have an administrative hearing on license suspension, does NOT violate due process because of the driving privilege is not a fundamental right and DOL waives the fee for indigent drivers.

In 2010 – 2011 police arrested James Didlake and other defendants for DUI. Washington’s Implied Consent Statute, RCW 46.20.308, requires that a driver arrested for Driving Under the Influence of an Intoxicant (DUI) pay a filing fee to obtain an administrative review hearing to prevent a driver’s license suspension or revocation. And as required by Washington’s implied consent law, the Department initiated license suspension proceedings against them. Each defendant paid a $200 fee for an administrative review hearing. After they prevailed at their hearings, the Department rescinded their license suspensions.

Didlake filed a class action lawsuit against the DOL, asking for injunctive and declaratory relief, plus a refund and damages. He alleged that the $200 statutory fee for an administrative hearing violates due process. Didlake filed a motion for class certification under CR 23. After filing its answer, the DOL filed a motion to dismiss Didlake’s lawsuit under CR 12(b)(6).

On April 5, 2013, the trial court granted the DOL’s motion to dismiss. Didlake asked the Washington Supreme Court for direct review. On March 5, 2014, the Supreme Court transferred the case to the Court of Appeals.

In rendering its decision, the Court of Appeals gave lots of background on the procedural aspects of challeging DOL license suspensions. The court reasoned that the implied consent law provides certain procedural protections to drivers. The DOL must give the driver written notice that it intends to suspend or revoke the driver’s license. The DOL must also notify the driver of the right to a hearing and specify the steps to obtain one. Within 20 days of this notice, the driver may request in writing a formal hearing before the DOL. As part of the request, the driver must pay a mandatory fee. The DOL may waive the fee, however, for drivers who are indigent.

At the hearing, the driver may have assistance of counsel, question witnesses, present evidence, and testify. The hearing officer determines if the officer had reasonable grounds to believe the driver was driving under the influence and if the driver refused to take a test or took a test that revealed a BAC of 0.08 or higher. After the hearing, the DOL “shall order that the suspension, revocation, or denial either be rescinded or sustained.”

Here, the Court reasoned that Washington courts have almost always have upheld the constitutionality of filing fees. Courts have consistently distinguished between fundamental interests and interests that are “solely monetary,” involving “economics and social welfare,” or even “important” or “substantial.” If the interest involved is fundamental, due process requires access for all. Here, the court reasoned, a fee waiver for indigent litigants accomplishes this mandate. If the interest is not fundamental, “a monetary prerequisite to an appeal is thus permissible, even for indigent appellants.

Additionally, Courts have identified the driving privilege as an “important” and “substantial” but not fundamental right. Consequently, the court reasoned, this contradicts Didlake’s assertion that the filing fee has a “chilling effect” on drivers’ exercise of their due process rights. Thus, he fails to establish a facial challenge on due process grounds. And because he paid the fee and received a hearing that complied with due process, he does not show that the fee requirement is unconstitutional as applied to him. “Whether facial or as-applied, Didlake’s due process challenges fail.”

 The Court concluded that because Didlake failed to establish that the implied consent statute’s fee requirement violates procedural due process, the Court of Appeals affirmed the trial court’s order dismissing Didlake’s class action claim.

My opinion? Speaking as a DUI attorney, DOL hearings and license suspensions are just another way for the State to profit from defendants charged with DUI. These days, a DOL hearing costs $375. Additionally, a defendant’s window of time to apply for these hearings is small – only 20 days after the DUI incident happened. Finally, DOL hearings are very difficult to win. There must be some glaring legal weakness in the case regarding (1) the pullover of the defendant’s vehicle, (2) the evidence of DUI, (3) whether the officer read the Implied Consent Warnings, and/or (4) whether the defendant tested over .08 BAC or refused the BAC machine.

Unfortunately, given the Court’s analysis above, it appears the wheels of justice shall continue to financially grind upon defendants facing license suspensions from DUI charges.

Washington State Patrol Upgrades its DUI Breath-Test Machines

The Washington State Patrol is replacing its old breath-test machines (BAC Machines) with sleek, fast, new $9,500 devices that are used to test drivers arrested on suspicion of driving under the influence of alcohol.

While both BAC machines can measure the alcohol in a person’s system by analyzing a breath sample, the much smaller and sleeker replacement features a touch screen and Microsoft Windows software and can process information faster.

The State Patrol will place 83 of the new Dräger Alcotest 9510 machines in police and sheriff’s stations, jails and State Patrol divisions in northeast and southeast Washington before enough are available to use statewide. The machines will be used to test drivers arrested on suspicion of driving under the influence of alcohol.

Whatcom County, Skagit County, Island County and San Juan County’s present BAC machines shall be replaced by the newer models.

Like the old devices, the new one measures alcohol in the lungs by analyzing exhaled breath. However, the new machines utilize a dry gas standard instead of a liquid solution to verify that the instrument is working properly. For years, liquid solutions have had to be mixed locally by scientists, monitored for temperature, and checked regularly by technicians. The Dräger’s dry gas contains a known concentration of alcohol, allowing the instrument to verify that a suspect’s breath alcohol is being measured accurately and reliably, the State Patrol says.

Only troopers, sheriff’s deputies and police officers certified in the Alcotest will be allowed to use the machines.

My opinion? Competent defense attorneys should investigate whether the police officers who arrest our clients for DUI and later operate these machines on our clients are, in fact, certified to operate these machines. If they’re not, then perhaps the BAC result can be suppressed.

Bellingham Police Want to Increase DUI Arrests By 50%.

We were warned . . .

Drunk drivers will be targeted en force over the next year as Bellingham puts extra officers on the streets with state grant money. Bellingham Police Department received a grant from the Washington State Traffic Safety Commission for extra DUI patrols starting Wednesday, Oct. 1 and lasting through Sept. 30, 2015. The department will try to increase its DUI arrest rate by more than 50 percent.

To do so, each enforcement officer will try to arrest one impaired driver every four hours, and crack down on other crash-related behavior. The grant goals follow statewide “Target Zero” goals to reduce and eventually eliminate fatal and serious injury crashes.

Statewide, the yearly goal is to have 24 fewer deaths from crashes and 120 fewer serious injuries.  To kick off the program, Bellingham police will work with the Whatcom County Sheriff’s Office to conduct a high visibility DUI enforcement patrol Friday, Oct. 3. Officers will focus on city and county streets with the highest number of injury and fatal crashes.

My opinion? Unbelievable. “The department will to try to increase its DUI arrest rate by more than 50 percent.” Wow. In other words, if you’re driving downtown Bellingham during certain hours, expect to get pulled over. Period.

DUI Patrols To Run Through Sept. 1 in Whatcom County

They’re back.

According to the Bellingham Herald, people out partaking in recently legalized marijuana or drinking at end-of-summer barbecues should plan a safe way to get home, as emphasis patrols are looking for intoxicated drivers in Whatcom and Skagit counties.

Officers from local police departments, sheriff’s deputies from Whatcom and Skagit counties and Washington State Patrol troopers will have extra patrols to catch drivers under the influence as part of the Drive Sober or Get Pulled Over campaign. The emphasis patrols will run through Sept. 1.”Specifically, we want people to know that marijuana doubles the risk of a fatal crash,” Traffic Safety Commission Director Darrin Grondel said in a news release. “With new retail marijuana stores in the mix, we want to remind the public that prescription and over-the-counter drugs, as well as illegal and recreational drugs, can impair driving ability.”

State v. Martines: More Good Caselaw on Blood Tests Taken After DUI Arrests

Excellent opinion from Division I of the WA Court of Appeals.

After investigating and arresting a suspect for suspicion of DUI, the State may not conduct tests on lawfully procured blood samples without first obtaining a warrant that authorizes testing and specifying the types of evidence for which the sample may be tested.

The defendant was seen driving his SUV erratically. He veered into another car, careened across the highway, bounced off the barrier, and rolled over. A Washington State Trooper arrived and took Martines into custody. Martines smelled of intoxicants, had bloodshot watery eyes, and stumbled while walking. Trooper Tardiff sought a warrant to extract blood samples from Martines. His affidavit of probable cause stated that a blood sample “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.” He obtained a warrant that authorized a competent health care authority to extract a blood sample and ensure its safekeeping. The warrant did not say anything about testing the blood sample.

Martines’ blood was taken at a local hospital. Then it was tested for the presence of drugs and alcohol. The test results indicated that Martines had a blood alcohol level of .121 within an hour after the accident, and that the drug diazepam (Valium) was also present. Martines had a prior conviction for vehicular assault while driving under the influence. The State charged him with felony DUI under RCW 46.51.502(6)(b)(ii).

The trial court denied Martines’ motion to suppress. He was found guilty at trial. The case went up on appeal. The primary issue on appeal was that testing a blood sample for any purpose is a search for which a search warrant is required. Because the warrant authorizing the extraction of blood did not specifically authorize blood testing of any kind, Martines argued that the results should have been suppressed as the fruit of an illegal search.

The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another:

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

In short, the court held that extracting someone’s blood is a first search, and testing the blood is a second search. The first search – the initial extraction – is totally different than the second search, which is analyzing the blood. Because the second search is so intrusive (blood contains someone’s personal DNA code, pregnancy results, information on diseases, etc.), a second warrant is needed. Consequently, the State may NOT test blood samples without first obtaining a warrant that authorizes testing. The warrant must specifically state the types of evidence they’re looking for.

My opinion? State v. Martines is an interesting decision. I admire the Court of Appeals for making a decision which is consistent with Missouri v. McNeely (discussed in another blog) and going one step further favoring a defendant’s constitutional rights under the 4th Amendment. The opinion prevents police officers from getting a boilerplate search warrant and going on fishing expedictions when they pull people over on suspicion of DUI. The officers must be trained to determine what exactly they’re looking for; be it drugs, alcohol or both. Saying someone has bloodshot/watery eyes, slurred speech and smells of intoxicants does not, by itself, cut it anymore.

Good job, Court of Appeals. I’m impressed.

State v. McNeely: U.S. Supreme Court Says Blood Draws Require a Warrant

In May, the United States Supreme Court handed down Missouri v. McNeely, a semi-controversial decision which now requires police officers to obtain search warrants for blood draws if emergency circumstances – in legal language, exigent circumstances – do not exist.

The issue decided by the U.S. Supreme Court was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood testing in all drunk-driving cases.

The facts were such that the defendant McNeely was stopped by Missouri police for speeding and crossing the centerline. After declining to take a breath test to measure his blood and alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a blood sample anyway. McNeely’s BAC sample was well above the legal limit. He was charged with Driving While Intoxicated (DWI).

The U.S. Supreme Court held that rather than applying a blanket per se exigency due to the dissipation of BAC in a person’s body, an exigency must also be based upon “special facts” under a case-by-case analysis.

The Supremes reviewed prior caselaw on this subject. In State v. McNeely, the Court pointed out that a diminishing BAC result upon the passa ge of time that happens during a DUI investigation is only one factor that must be considered in determining whether a warrant is required. The Court in McNeely further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. In other words, a warrantless blood draw can still be conducted provided there are other factors articulated by the officer.

My opinion? McNeely is a good, straightforward decision. In short, McNeely holds that when a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. If an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained. The officer must be able to articulate what factors were present that created an exigent circumstance. Also, and importantly, “exigent circumstance” cannot be a result of the officer’s conduct. There must be objective, independent facts articulating why exigent circumstances exist to get a warrant.

How High Is Too High to Drive?

An interesting news article discussed how high is too high to drive after smoking marijuana.

As usual, the answers to this question were widespread:

“Pretty damned stoned is not as dangerous as drunk,” said Mark Kleiman, professor of public policy at the University of California, Los Angeles, who served as Washington state’s top pot consultant. He said Washington state has a law that’s far too strict and could lead to convictions of sober drivers, with many not even knowing whether they’re abiding by the law.

Washington state and Colorado, the only two states to fully legalize marijuana, have set a limit of five nanograms of active THC per milliliter of blood. In Washington state, legalization proponents included the language in the ballot initiative approved by voters in 2012.

While police can use breathalyzers to easily measure the amount of alcohol in one’s bloodstream, the best way to determine marijuana intoxication is by examining a blood sample. Last year, the U.S. Supreme Court complicated the situation for states by ruling that police must get a warrant before testing blood for a DUI.

As the debate heats up, both sides can point to competing research.

In February, researchers from Columbia University’s Mailman School of Public Health reported that fatal crashes involving marijuana use had tripled over the past decade, with one of every nine drivers now involved in a deadly accident testing positive for pot.

My opinion? The bad news is at the moment we don’t have have anything sensible to do about stoned driving. The good news is that it’s only a moderate-sized problem. I, for one, have not seen a dramatic increase in marijuana DUI’s and/or drug DUI’s. It simply hasn’t been an issue.  The best solution, it seems, is to wait for the science to improve.

Winter DUI Emphasis Patrols to Begin Again

Be aware, all . . .

All along the I-5 corridor from Canada to Mexico, law enforcement agencies begin emphasis enforcement beginning on Wednesday November 27, 2013.

The goal is to prevent even a single death on I-5 during the Thanksgiving weekend.   To that end, Washington, Oregon, and California law enforcement are combining forces this week to keep the road safe from impaired drivers.  Spread the word!