Category Archives: DUI

Alcohol Use Has Declined Since Covid-19

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Nearly seven years after the start of the Covid-19 pandemic, we see signs that rates of alcohol use had finally begun to drop. A study published in the Annals of Internal Medicine, found that any alcohol use, including heavy drinking, among adults in the US declined from 2022 to 2024. However, the rates are still higher than they were in 2018.

The study used cross-sectional data from 2018 to 2024 taken from more than 114,000 respondents to the National Health Interview Survey, which is administered by the US Census Bureau. According to the study, the share of adults who drank any alcohol in the past year fell by nearly 2%, and the share who drank heavily fell by more than 8% from 2022 to 2024.

The decline was seen among men and women, with men showing a larger decline in any alcohol use and women seeing a greater drop in heavy alcohol use.

WHAT DEFINES HEAVY ALCOHOL USE?

Heavy alcohol use is defined as four or more drinks per day, or eight or more per week for women, and five or more drinks per day or 15 or more drinks per week for men, according to the National Institute on Alcohol Abuse and Alcoholism.

HAVE DIFFERENT GENERATIONS SEEN A MORE SUBSTANTIAL DROP IN ALCOHOL USE?

Gen Z appears to be leading the way on the decline in drinking rates. Gen Z adults, who are between the ages of 18 and 29, saw the largest decline in any alcohol use with an over 5% drop. Heavy drinking among millennials, who are between the ages of 30 and 49, dropped by 17% between 2022 and 2024. Apparently, social dynamics, including the rise of the sober-curious movement and more awareness of the health-related harms of alcohol.

ARE ANY AGE GROUPS DRINKING MORE?

Yes. People between the ages of 50 and 64 — members of Generation X and the youngest Baby Boomers— continue to drink at rates higher than before the pandemic. They remain at high risk for alcohol-related conditions such as liver disease, cancer and cardiovascular disease. Heavy drinking for this group increased by more than 36% and any drinking by 4% from 2018 to 2024. Those between the ages of 50 to 64 are over two and a half times as likely to die from chronic alcohol abuse compared to acute alcohol-related conditions, according to the National Center for Drug Abuse Statistics.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Pretrial Drug-Monitoring “Sweat” Patches Ruled Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, DUI, Mount Vernon Criminal Defense Attorney, Pretrial Release, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Bailey-Cobb v.Snohomish County District Court, No. 87738-1-I (Aug. 17, 2026), the WA Court of Appeals held that Pretrial Drug Monitoring Patches (PDMP’s) are a search and must therefore be supported by authority of law to be lawful.

WHAT ARE PRETRIAL DRUG MONITORING PATCHES?

Ingested drugs have been known to appear in sweat. This has created the development of sweat collection devices for use in drug detection, such as the PDMP sweat patches. However, externally applied drugs or drugs deposited on the skin, can cause false positives or contamination from within (CFWI). Different cleaning procedures are used to remove externally applied drugs, however some drugs can remain causing false positives. Also, if an individual lives in a drug-contaminated environment, CFWI could occur also producing misleading results for drug use.

FACTUAL BACKGROUND

In these consolidated cases, the State charged Mrs. Simone Bailey-Cobb and Mr. Toombs with DUI. As a condition of their pretrial release, the court required them to wear PDMP’s. Bailey-Cobb and Toombs challenged the imposition of the drug patch as a condition of pretrial release. The trial court denied the petitions. Bailey-Cobb and Toombs appealed, alleging the drug-monitoring patch violated the Washington State Constitution.

Additionally, Bailey-Cobb contended the trial court erred in finding she would interfere with the administration of justice, and Toombs claimed the trial court did not make the requisite findings under CrRLJ 3.2 to impose any conditions. We conclude that Bailey-Cobb and Toombs did not suffer diminished privacy interests as pretrial releasees, and the court’s imposition of a drug-monitoring patch violated their rights under article I, section 7. Accordingly, we reverse and remand for the trial court to remove the drug-monitoring patch condition from Bailey-Cobb’s and Toombs’s pretrial release requirements.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying both the United States Constitution and the Washington State Constitution protect individuals against unreasonable searches and seizures. When a party challenges an action, contending it violates constitutional rights, the court conducts a two-part inquiry.

“First, we must determine whether the alleged action “intruded upon a person’s private affairs,” said the COA. “If a privacy interest exists, the next question is whether relevant authority of law justifies the disturbance.”

Next, the COA discussed CrRLJ 3.2. This court rule gives courts the ability to impose conditions on the accused if the court determines there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise interfere with the administration of justice. The conditions include prohibiting the accused from “consuming any intoxicating liquors or drugs not prescribed to the accused” and “any condition other than detention to assure noninterference with the administration of justice[] and reduce danger to others or the community.” To determine which conditions are reasonable, the court shall consider, among others, the accused’s criminal record, the nature of the charge, and the accused’s past interference with the administration of justice.

PDMP’s Are Invasive Technology

The COA reasoned that although Bailey-Cobb and Toombs would not need to submit a urine sample, they would be submitting far more personal information with the patch than urinalysis testing.

“And once affixed to the body, the patch collects and retains evidence of any and all drugs ingested, regardless of whether it is prescribed or otherwise not prohibited, and the individual wearing the patch is required to go into Triton’s office every 10 to14 days to get a new patch. Additionally, the patch does not test for alcohol, which is one of the substances the court order prohibited, so it is conceivable that further testing would be required. The drug patch is also susceptible to outside environmental contamination in limited situations. Because the drug-monitoring patch is invasive and would reveal far more personal information than necessary, it is not narrowly tailored and cannot survive the Olsen balancing test.” ~WA COA

The State Does Not Have a “Special Need”  to Monitor By Imposing PDMP’s.

Next, the COA rejected the argument that the State had a “special need” to monitor the drug use of pretrial releasees via a drug-monitoring patch. “The special needs exception permits an otherwise unlawful search when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impractical,” said the COA.

“Here, the State maintains a special need exists because requiring a warrant or probable cause would jeopardize the State’s need to monitor the defendants for the sake of public safety. But our Supreme Court has repeatedly declined to apply a special needs exception under article I, section 7. See, e.g., Evans, 5 Wn.3d at 215 (declining to adopt the federal special needs exception for administrative searches of pretrial releasees); Blomstrom, 189 Wn.2d at 410 (declining to apply the special needs exception for urinalysis testing of pretrial releasees). Like the balancing test, precedent does not support applying the special needs exception to the imposition of a drug-monitoring patch for pretrial releasees.” ~WA COA

The COA concluded there was no authority of law to impose PDMP’s.  Also, neither the compelling interest test, nor the “special needs” exception to the search warrant requirement applied. “The drug monitoring patch, and the process for obtaining the patch, reveal more personal information than necessary,” said the COA.  “Thus, the patch condition was not narrowly tailored, and not lawful.”

Please contact my office if you, a friend or family member are charged with a crime involving Search & Seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA Supreme Court: When Taking DUI Breathalyzer Tests, Tobacco Strands Are Not “Foreign Substances” In a Person’s Mouth

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In State v. Sliger, No. 103563-2 (Aug. 13, 2026), the WA Supreme Court held that tobacco strands are not a “foreign substance” in a person’s mouth and therefore do not invalidate a breath test if seen and not removed.

The court reasoned that in cases involving the debatable presence of a foreign substance in the defendant’s mouth within 15-minutes before or during the breath test, the State must rely on expert testimony to make a prima facie showing that the defendant’s mouth was free of foreign substances.  Here, the State met its burden when it presented expert testimony that the tiny strands of tobacco between the defendant’s teeth would not affect the reliability of the Draeger Breath Test results.  The other admissibility requirements for breath tests were also met.  Thus, the breath test was admissible.

FACTUAL BACKGROUND

Mr. Sliger was charged with Vehicular Homicide after being involved in a fatal collision with a dirt bike. At the scene, Sliger admitted to drinking a few hours before the crash. He voluntarily took a portable breath test. Prior to taking the test, Sliger was instructed to spit out a lump of chewing tobacco from his mouth.

Sliger was arrested and taken to jail. At jail, Sliger agreed to take a Draeger breath test. Prior to administering the test, Deputy Kahns asked Sliger if he had any foreign substances in his mouth, and Sliger denied having any. In his DUI arrest report, the officer checked off the box indicating that Sliger denied having any foreign substances in his mouth. He also checked off the box indicating that he visually examined Sliger’s mouth. Next, he checked the box indicating that foreign substances were found and explained that there were “tiny tobacco strands stuck in teeth.” The tiny strands of tobacco were not removed prior to administering the test. The breath test results indicated an alcohol level over the legal limit.

The State charged Sliger with vehicular homicide. Sliger filed a motion to suppress the breath test results. He argued that the test results were inadmissible because the tiny strands of tobacco in his teeth constituted a foreign substance that should have been removed before conducting the breath test. An evidentiary hearing was held during which the court heard testimony from the arresting officer and the State’s expert, Trooper Axtman, a breath test technician. While testifying, Trooper Axtman made a distinction between a lump of chewing tobacco and tiny strands of tobacco for purposes of determining admissibility of a breath test.

After hearing testimony, the trial court denied Sliger’s motion to suppress the breath test results. The court concluded that the State met the burden of providing prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period. Notably, the trial court’s rulings were based solely on Sliger’s verbal denial of having foreign substances present in his mouth. Sliger appealed the trial court’s rulings. On appeal, the Court of Appeals concluded that the trial court did not err in determining that Sliger’s denial alone constituted prima facie evidence that no foreign substances were present in his mouth.

Sliger again appealed on the legal issue of whether the State provided prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period prior to administering the test.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Supreme Court upheld the Court of Appeals and the trial court’s rulings. We hold that the State produced prima facie evidence that Sliger did not have any foreign substances in his mouth when it provided expert testimony that the tiny strands of

The WA Supreme Court began with a review of former RCW 46.61.506(4)(a). This statute, which was in effect at the time, governed the admissibility of breath tests. To determine whether a person has a foreign substance in their mouth before administering a breath test, WAC 448-16-040 requires officers to either examine the individual’s mouth or have the person deny that there are any foreign substances in their mouth.

Next the WA Supreme Court addressed Sliger’s arguments that the prosecution cannot meet its burden for admissibility here because the statutory term “any foreign substance” includes tiny strands of tobacco.  Sliger emphasized that “any” before the term “foreign substance” means that any quantity of a foreign substance, regardless of its size, results in an invalid test.

However, the WA Supreme Court disagreed with Mr. Sliger. It said the statute at issue here does not speak to quantity of substance in a person’s mouth. Furthermore, the Court emphasized that interpreting ‘any’ to mean any quantity of a foreign substance is not a reasonable interpretation of the statute. :

“Interpreting ‘any’ to mean any quantity of a foreign substance would lead to absurd results. This interpretation would mean that the presence of microscopic amounts of a foreign substance would prevent the admissibility of breath test results regardless of whether it has any impact on the reliability of the test. Officers are not equipped to conduct a thorough inspection of an individual’s mouth for any strand or speck of a foreign substance. In accordance with Fernandez, a more reasonable interpretation is that “any foreign substance” refers to any kind of foreign substance capable of impacting the reliability of the test results.” ~WA Supreme Court

With that the WA Supreme Court held that the State met its burden of establishing prima facie evidence that Sliger’s mouth was free of any foreign substances when it presented expert testimony that the tiny strands of tobacco would not affect the reliability of the breath test results.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WSU Issues “Back To School” DUI Emphasis Patrols

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The Washington State Patrol (WSP) issued a Press Release stating “Back to School” DUI emphasis patrols are at Washington State University (WSU) are in effect. This comes wWith increased traffic and a history of serious collisions associated with students and families traveling back to WSU in Pullman after summer break.

WSP will conduct emphasis patrols from Friday, Aug. 14, through Sunday, Aug. 16. During the emphasis, District 6 troopers in Grant and Kittitas counties will focus on speeding, distracted driving, impaired driving, and other collision-causing violations. Speeding continues to be one of the leading causes of serious and fatal collisions across Washington.

Troopers will be actively enforcing posted speed limits throughout the emphasis. Drivers are reminded to pay close attention to changing speed limits as they travel across the state. Troopers will also have zero tolerance for impaired driving. In addition, motorists are encouraged to eliminate distractions and remain focused on the safe operation of their vehicles.

Motorists traveling to WSU can expect an increased WSP presence along State Route 26, Interstate 90 over Snoqualmie Pass, and through Ellensburg and Grant County.

“Whether you’re a first-year student or returning to campus, the start of the school year should be an exciting milestone, not one that ends in tragedy. The Washington State Patrol is committed to helping ensure everyone traveling back to school has a safe and enjoyable trip.” ~WA State Patrol

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

The Crackdown On Repeat Impaired Driving

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Between Memorial Day and Labor Day, DUI arrests spike dramatically across the country. Law enforcement agencies ramp up patrols, set up more checkpoints, and dedicate extra resources to catching impaired drivers.

Earlier this year, Washington State is updated its DUI laws in ways that could have significant consequences for drivers with prior DUI convictions. One of the most important changes involves how past offenses are counted when determining whether a DUI charge rises to a felony.

EXTENDED “LOOK-BACK” PERIOR FOR PRIOR DUI’S

Under the updated law, HB 1493 updates the “look-back” period used to determine whether an impaired driving offense becomes a felony by increasing it from 10 years to 15 years. This means that if a person has three or more prior DUI or physical control convictions within the past 15 years, a subsequent impaired driving offense can be charged as a felony rather than a gross misdemeanor. Also, older convictions that would not have counted under the previous 10-year rule may now be considered in charging and sentencing.

ADDITIONAL DUI LAW CHANGES

In addition to the extended look-back period, the new law also includes the following:

  • New sentencing alternatives for some felony DUI cases, including treatment-based options aimed at addressing substance use issues.
  • Expanded options for deferred prosecution, including limited eligibility for a second deferred prosecution in certain circumstances.
  • Clarifications to ignition interlock and license processes, which may affect driving privileges and reinstatement procedures after a DUI.

WHY DO THESE CHANGES IN THE LAW MATTER?

A DUI conviction—especially a felony impaired driving charge—can carry serious penalties. Longer jail sentences, extended probation, ignition interlock device requirements, and lasting impacts on your driving record and insurance. And because the new law looks further back into a person’s history, older convictions now heavily influence how current charges are handled.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Roadside DUI Tests to Add Oral Fluid Screening

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In recent news, numerous states – including Washington State – are adopting some form of oral fluid specimen use in DUI cases. These technological advancements will transform how law enforcement agencies detect and prosecute DUI cases.

WHAT IS ORAL FLUID TESTING?

Oral fluid testing for DUI involves police using a swab to collect a saliva sample from a driver at a traffic stop to quickly screen for recent drug use (marijuana, cocaine, opioids, etc.) Oral fluid tests help establish probable cause for impairment in addition to field sobriety tests. They’re advocayed as fast, non-invasive tools to detect active impairment, complementing blood/urine tests by showing recent use, not just past usage. 

WHICH STATES ARE ACTIVELY USING ORAL FLUID TESTING?

Alabama initially conducted a pilot program established by the Alabama Department of Forensic Sciences and later transitioned to a permanent oral fluid toxicology program. Alabama’s field screening devices test for marijuana, cocaine, methamphetamine, amphetamine, opioids and benzodiazepines. Oral fluid devices are administered at roadside in a screening capacity to confirm any suspicion of drug use after law enforcement conducts a standardized field sobriety test. The results help obtain a search warrant to collect blood or oral fluid for a laboratory test that would provide evidence for trial.

Law enforcement officers in Indiana began using roadside screening around the state in December 2020 to build probable cause and determine whether or not to call for a DRE. Data collected through the program will be used to evaluate a possible expansion.

The Michigan legislature (Public Act 242 and 243 of 2016) authorized state police to develop an oral fluid pilot program. The initial pilot was conducted in five counties and used DREs to administer the oral fluid test. Unlike previous programs (like the three-year pilot program in Colorado that began in March of 2015), this program was not voluntary as drivers were not given the option of opting out from providing a sample. The program was extended for a second year and expanded statewide. Michigan State Police released a report concluding it found oral fluid testing accurate for purposes of preliminary roadside testing.

Vermont (SB 54) amended its implied consent law to include the testing of saliva in 2020 for evidentiary purposes only. Law enforcement officers can now require a person to submit to a saliva test when they have reasons to believe that they are under the influence of drugs or a combination of drugs and alcohol. Saliva samples cannot be taken at roadside and must be analyzed in a laboratory.

HAS WASHINGTON STATE EMBRACED FLUID TESTING?

Yes. In 2024, the Legislature enacted RCW 46.61.5062. This statute, which goes into effect January 1, 2026, allows law enforcement agencies to utilize “oral fluid roadside information” as part of DUI enforcement. Law enforcement agencies must ensure the following:

  1. The oral fluid test instrument(s) used must be valid and reliable;
  2. Any officer who administers an oral fluid test is properly trained in the administration of the test;
  3. Prior to administering the test, the officer advised the subject of the following information:
    • The test is voluntary and does not constitute compliance with the implied consent requirement of RCW 46.20.308;
    • Test results may not be used against a person in a court of law; and
    • Submission to the test is not an alternative to any evidentiary breath or blood test; and
  1. The law enforcement agency establishes policies to protect personal identifying information from unnecessary and improper dissemination including, but not limited to:
    • Destruction of biological samples from oral fluid tests as soon as practicable after collection of test results; and
    • Prohibition against entering DNA samples or results from such tests into any database.

CONCERNS ABOUT ORAL FLUID TESTING

Drugs do not affect users uniformly or in a manner that is easy to measure. Differing characteristics of the drug, of the user, and of the circumstances in which the drug is used renders distinguishing between presence of drugs and impairment by drugs an opaque endeavor. There are no consistent standards in the manufacture of oral fluid tests. The lack of industry-wide consensus reflects research challenges like dearth of quality studies and information challenges. Finally, laws concerning the use of oral fluid tests are inconsistent across all 50 states.

LEGAL ARGUMENTS AND CHALLENGES

Challenges can be made from collection, preservation, and chain of custody to accuracy of results. Other challenges include the effect of methods of consumption on results, factors affecting the presence of a substance in one bodily fluid while being absent in another, and whether the results even indicate impairment.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA’s Drunk-Driving Deaths Surge As U.S. Trend Declines

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A very informative article in the Olympian reported that Washington State’s alcohol-related driving deaths surged as national trends declined.

THE DATA

The National Highway Traffic Safety Administration this year published data showing fatalities in drunk-driver-involved crashes dropped 7.6% during that time frame: from 13,458 to 12,429 deaths. However, Washington witnessed the opposite trend between those two years. Fatalities involving an alcohol-impaired driver increased 18.5% from 2022 to 2023, jumping from 205 to 243, per data from the Washington Traffic Safety Commission (WTSC).

WHAT EXPLAINS THE INCREASE?

In general, Washington saw its total traffic deaths and impaired-driving-related fatalities increase more than the national average during and after COVID. The overall number of traffic fatalities in the state increased dramatically between 2019 and 2023, climbing from 538 to 809. The year 2023 saw the highest number of such deaths since 1990. Apparently, many people’s behavioral health suffered during the pandemic. Washington encountered a steep rise in traffic deaths involving an alcohol-impaired driver starting in 2020, when COVID-19 first hit.

Other risky driving behaviors also have ballooned in recent years. Speeding driver-involved fatal crashes, for instance, spiked from 2019 to 2023. Also, impaired driver-involved traffic fatalities — a category that includes drivers on drugs — shot up from 254 in 2019 to 410 in 2023, a 61.4% increase.

Impairment in this category is defined as being under the influence of one or more drugs and/or having a blood alcohol concentration (BAC) of at least 0.08%, or being flagged as impaired by law enforcement.

WA LEGISLATURE PUSHES FOR TRAFFIC SAFETY

Washington state lawmakers last session pursued legislation aimed at improving road safety. One stalled proposal, Senate Bill 5067, revived the push to lower the legal BAC level for drivers from 0.08% to 0.05%. Utah now abides by a 0.05% standard, as do certain states and provinces in Mexico and Canada.

Alao, a new state law that will require intelligent speed-limiters placed in vehicles for people convicted of reckless driving or who’ve had multiple infractions including excessive speeding. GPS-based devices under House Bill 1596, which takes effect in 2029, will prevent such drivers from zooming past the posted limit.

In addition, WTSC is backing up-and-coming car technology that identifies when a driver is legally impaired. If someone were deemed to be drunk, then their vehicle wouldn’t operate, thanks to “breath-based” tech from DADSS: the Driver Alcohol Detection System for Safety.

Please contact my office if you, a friend or family member are charged with Vehicular Homicide or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

 

The Law On Open Containers In Vehicles

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Summer is here. And unfortunately, warm-weather fun brings warm-weather dangers. More traffic fatalities occur on Washington’s roads during summer months than any other time of year. In order to crack down on dangerous driving, law enforcement puts extra emphasis on traffic patrols. According to the Washington Traffic Safety Commission, there were 253 fatal crashes on state roadways between June and September 2024.

What if you’re found drinking alcohol in a car, but your driver hasn’t had a drop? How can you expect law enforcement to react? Will you get pulled over for drinking in the passenger seat?

WASHINGTON’S LAW ON OPEN CONTAINERS: RCW 46.61.519

Under RCW 46.61.519, Drinking alcohol in a vehicle on the highway is a traffic infraction. It’s illegal to have an open container with an alcoholic beverage in a vehicle at all, regardless if the driver drinks from it. The statute describes an “open container” as “a bottle, can, or other receptacle containing an alcoholic beverage if the container has been opened or a seal broken or the contents partially removed.”

CAN THE DRIVER GET PULLED OVER FOR THE PASSENGER’S OPEN CONTAINER?

Yes. Open containers in vehicles are considered a primary violation, meaning you can get pulled over for having one. The primary reason passengers cannot drink is to prevent driver’s access. If a passenger has an open container, they can easily pass it to the driver. Law enforcement would have no way to determine if the driver had been drinking and simply passed the container to a passenger.

CAN A DRIVER GET PULLED OVER FOR DISGUISING AN ALCOHOLIC BEVERAGE?

Yes. Under RCW 46.61.5195, it is an additional infraction to try and disguise an alcoholic beverage in order to get around this state code. These traffic infractions come with a fine of $145.

WHAT ARE THE EXCEPTIONS TO THE STATUTE?

There are some exceptions to Washington’s “Open Container” statute. The code does not apply for open containers:

  • In public services commercially chartered for group use, like a party bus.
  • In the living quarters of motors homes or campers.
  • With passengers in a licensed for-hire vehicle (not rideshares), like a limousine.
  • When a privately-owned vehicle is driven by a licensed employee under normal work conditions.

Patrols will be looking for dangerous behaviors like speeding and drunk driving. Please contact my office if you, a friend or family member are charged with Reckless Driving, DUI or any other vehicular crimes. Hiring an effective and competent defense attorney is the first and best step toward justice.

Traffic Safety For All

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The legislation is a top priority for the Washington chapter of the American Civil Liberties Union and the Washington Coalition for Police Accountability. Instead of pulling people over, officers would send warnings in the mail about nonmoving violations if they have no other reason for a stop.

WHAT CAN/CAN’T POLICE PULL MOTORISTS OVER FOR?

Officers could still pull people over for any criminal offense, not wearing a seat belt, not having license plates, or having an expired registration. The same goes for faulty equipment, a shattered windshield that affects visibility or a dragging muffler. And police could still cite drivers for nonmoving violations during a stop. However, they would need to initially pull the driver over for something else.

HOW DOES THE BILL LIMIT POLICE POWERS?

When officers pull someone over, they would have to immediately inform drivers of the reason for the traffic stop. And they could only question the driver about that issue, unless they find evidence giving them a reasonable suspicion to ask about something else. Police would also need written consent to search the car. Furthermore, police can only search if the offense precipitating the stop is a gross misdemeanor or felony.

WHAT DO THE BILL’S SUPPORTERS ARGUE?

Supporters argue reducing stops for minor infractions would free up time for officers to prioritize drivers who are under the influence of drugs or alcohol or speeding.

Police accountability advocates say stops for nonmoving violations do little to improve public safety while disproportionately affecting people of color. And the fines can be burdensome for low-income communities.

State troopers search the cars of Native American drivers five times more than white drivers, according to an InvestigateWest analysis of traffic stop data from 2018 to 2023. Troopers also searched Black and Hispanic drivers more than white drivers.

Between 2009 and 2019, Washington State Patrol troopers found contraband during a mere 0.27% of traffic stops, according to a Vera Institute of Justice analysis.

WHAT DO THE BILL’S OPPONENT’S ARGUE?

Police officials oppose the bill, arguing it is ill-timed given the dramatic rise in traffic deaths in the past few years. In 2023, over 800 people died on Washington roads, the highest mark since 1990. Impairment and speeding caused a half and a third of those deaths, respectively.

WHERE IS THE BILL PRESENTLY HEADED?

The Senate version of the legislation hasn’t been scheduled for a public hearing. The House bill doesn’t yet have a committee vote scheduled. The proposal would take effect 90 days after the session adjourns, scheduled for April 27.

My opinion?  Bouse Bill 1512 is public safety that benefits everyone. It addresses racially discriminatory police practices and improves safety.

Please contact my office if you, a friend or family member are charged with a driving-related crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Is The Test Tube Vial Containing Your DUI Blood Test Expired? Doesn’t Matter. Still Admissible.

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In Kanta v. Dept. of Licensing, the WA Court of Appeals decided an important case regarding blood test evidence preserved in test tube vials. Specifically, it addressed the issue of whether blood draw evidence is admissible even if (1) blood is drawn prior to a test tube vial’s expiration date, and (2) the blood test analysis occurred after the vial’s expiration date.

Some background is necessary. Blood collection tubes used in DWI cases are glass tubes/vials which are partially evacuated of air. These tubes/vials contain a preservative and anticoagulant (blood thinner).  The vacuum of the tube allows for the blood sample to be drawn into the tube. If there was no vacuum, the tube would not be able to draw the blood sample.  Thus, an expiration date is placed on the tube label.

FACTUAL BACKGROUND

Mrs. Kanta was arrested for DUI in July 2021. Shortly after her arrest, a phlebotomist drew a sample of Kanta’s blood which was sent to a laboratory for analysis. The laboratory tested Kanta’s blood for alcohol in May 2022. In September 2022, the lab issued a report stating that Kanta’s blood sample contained 0.18% alcohol. In November 2022, the Department of Licensing (DOL) suspended Kanta’s driving license. Kanta contested the suspension, arguing that because the vial used to store her blood expired in November 2021, the blood was not properly preserved and therefore did not comply with the Washington Administrative Code (WAC). A hearing examiner rejected Kanta’s argument and affirmed the suspension.

Kanta appealed to the superior court. The superior court found that substantial evidence supported the hearing examiner’s conclusion that the blood test complied with the necessary criteria, and was therefore properly admitted. Kanta appeals to the WA Court of Appeals, arguing that the hearing examiner erred in admitting the results of her blood test into evidence because the vials were expired at the time of testing. As such, Kanta argues, the superior court erred in affirming the suspension of her license.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the WA Court of Appeals agreed with the superior court and the DOL.

The Court reasoned that WAC 448-14-020(3) provides that blood samples must be placed in a “a chemically clean dry container consistent with the size of the sample with an inert leak-proof stopper,” and “must be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration.” Furthermore, the code explains that “suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate.”

“Kanta does not take issue with the procedures involving the reporting or analysis of her blood,” said the Court of Appeals. “Rather, she confines her complaint to the manner in which her blood was stored prior to testing because although the tubes had not yet expired at the time her blood was collected and placed inside the tubes, they expired roughly four months after collection and her blood was not tested for another six months after that.”

Here, the DOL presented three exhibits to the hearing examiner: a certificate of compliance for the blood collection tube used, the report from law enforcement, and a credential verification from the Department of Health. The Court of Appeals gave much weight to the significance of the certificate of compliance:

“The certificate of compliance establishes that the tube used in Kanta’s blood sample met the necessary requirements for preservatives and anticoagulants. According to the certificate of compliance, the tube used in Kanta’s blood test contained 18 to 23 milligrams of potassium oxalate and 90 to 115 milligrams of sodium fluorite. The certificate also established that the tubes were certified to be sterile and complied with manufacturing regulations.” ~WA Court of Appeals

Furthermore, the arresting officer’s police report stated that “prior to providing this blood kit to the phlebotomist I checked to make sure that the tubes were in good condition, were not expired, and that the white preservative anticoagulant powder was present in the tubes.”

Next, the Court of Appeals bluntly addressed the issue of whether a person’s blood must be tested prior to the expiration of the test tubes holding the blood:

“Kanta focuses all of her arguments on the admissibility of her blood test. The WAC does not require that the blood in the test tubes be tested prior to the expiration of the tubes. As we note above, once the DOL satisfies its initial burden of producing prima facie evidence establishing that the test complied with the code, the test results are admissible.” ~WA Court of Appeals (emphasis supplied).

My opinion? The Court of Appeals issued a rather narrow, cut-and-dried opinion which was strictly conscripted to the WAC. Obviously, the WAC must be changed to require that blood be tested prior to the expiration of blood vials/tubes. Expired blood test vials can lead to inaccurate results, especially for coagulation testing. This is because expired tubes may have lost their sterility or vacuum, or contain an anticoagulant that is no longer effective. Additionally, if a tube is used past its expiration date, the vacuum may not be able to draw enough blood to fill the tube, which can lead to short-filled tubes that are not suitable for testing.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.