Category Archives: DUI

DUI Patrols To Run Through Sept. 1 in Whatcom County

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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. 1st.

“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.”

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

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

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

In State v. Martines, the WA Court of Appeals held that after police investigate and arrest 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 Mr. 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.

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 expeditions 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.

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

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

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Exigent Circumstances, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, United States Supreme Court, Washington State Patrol, , ,

In Missouri v. McNeely, the United States Supreme Court held that police officers investigating DUI must 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 passage 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.

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

How High Is Too High to Drive?

Bellingham, Blood Test, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search Warrant, Washington State Patrol, , ,

An interesting news article from the Bellingham Herald discusses 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.

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.

Washington’s New DUI Pilot Program: “Plea Tenderizing” Gains Momentum

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Apparently, the legislative movement to heavily monitor defendants charged with DUI is gaining momentum.

Starting January 1, intoxicated drivers charged with their second DUI in Chelan County, Spokane County, and Thurston County may face much tougher punishment after their second offense.

The “24/7 DUI Monitoring Program” requires daily monitoring of any substance use. Defendants – who are still innocent until proven guilty, mind you – must either report to jail twice a day to give a breath test or pay more for an ankle monitor. Offenders pay $4 a day for the breath test and up to $12 a day for the ankle monitor.

“If they pass the test, they’re out the door. If they fail the test, they’re incarcerated,” explained Program Manager Bruce Bjork.

Repeat offenders are a major frustration for law enforcement officers. Many complain the current laws puts people back out on the street with lesser penalties than what they should have.

My opinion? The monitoring is another way of “plea tenderizing” defendants into pleading guilty to alcohol-related offenses. Daily monitoring is a significant inconvenience in time and money. As a result, defendants beleaguered with the time and expense of this excessive pretrial monitoring will want to plead guilty to DUI or a lesser alcohol related charge simply to stop the monitoring rather than fight the case on its merits.

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

State v. Green: When Inventory Searches Become Overbroad

Constitutional Rights, DUI, felony, law enforcement, police, Pretrial Investigations, Privacy, Search and Seizure, Search Warrant, Theft, Washington Court of Appeals, Washington State Patrol, , ,

In State v. Green, the WA Court of Appeals decided that evidence of Identity Theft  was not admissible when the officer obtained the evidence after searching the defendant’s car during a DUI and Hit & Run investigation.

Mr. Green was arrested for DUI after his vehicle struck a pedestrian who later died. After arrest, police searched Mr. Green’s car. They found a paper bag containing numerous receipts. After more investigating,  it was later determined the receipts were evidence of purchases using stolen credit cards. The car was later towed to a police impound lot. The officer began investigating the defendant for theft/fraud charges in addition to the Vehicular Homicide charge. However, the officer’s search warrant was only specific to the Vehicular Homicide charge.

A few days later, the officer obtained a second search warrant to search the car for evidence of fraud and identity theft. Mr. Green moved to suppress the receipts. The state argued the receipts were properly seized pursuant to an inventory search and were admissible pursuant to the independent source doctrine.

Some background is necessary. Under the 4th Amendment to the U.S Constitution and article I section 7 of the Washington Constitution, warrantless searches and seizures are unconstitutional. However one exception to the warrant requirement are Inventory Searches accompanying a lawful vehicle impound. The purpose of an inventory search is to (1) protect the vehicle owner’s property; (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger.

The direction and scope of an inventory search must be limited to the purpose of justifying the exception. Under the Independent Source Exception, evidence obtained by unlawful governmental action is not suppressed under the exclusionary rule if the evidence was obtained pursuant to a valid search warrant or other lawful means independent of the unlawful action.

In this case, the officer did not find the receipts as part of an inventory search. Stated different, the officer looked in the paper bag but did not consider the receipts to be relevant to the inventory search. Therefore, there was no evidence that he inventoried them. The officer seized the receipts for investigatory purposes on a different matter altogether, namely, the soon-to-be-pending Identity Theft charges.

 

The Court further reasoned the receipts were not admissible under the Independent Source doctrine because the officer neither found the receipts nor had knowledge of them through an independent source.

My opinion? This was a reasonable, practical approach. In this case, it makes no sense to allow the police to conduct investigations of different crimes other than the one they are already working on, especially if they lack independent evidence to begin with.

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

Winter DUI Emphasis Patrols to Begin Again

Bellingham Defense Attorney, Department of Licensing, DUI, Ignition Interlock Device, Washington State Patrol, Whatcom County Criminal Defense, , ,

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!

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.

More DUI Drivers Are Testing Positive for Marijuana

Blood Test, Department of Licensing, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search Warrant, Terry Stop, Uncategorized, Washington State Patrol, , ,

According to new data released from the Washington State Patrol, more drivers have been testing positive for marijuana since Washington legalized the drug last year.

In the first six months of 2013, 745 people tested positive for marijuana. Typically, there are about 1,000 positive pot tests on drivers in a full year. But this doesn’t necessarily mean there’s been a rash of people driving high, says patrol spokesman Bob Calkins. Well, then what’s the reason?

“We’re testing blood we didn’t test before,” he said.

In addition, the overall number of impaired-driving cases handled by the patrol doesn’t appear to have risen this year, and should be on track to hit the rough annual average of 20,000 – which could mean some people are using marijuana instead of alcohol before getting behind the wheel, Calkins said.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

Last year, Washington and Colorado voters legalized the recreational use of marijuana by adults over 21. Both states have set a legal limit of 5 nanograms of active THC per milliliter of blood for drivers; anything above that is a per se violation of impaired driving laws, similar to blowing 0.08 or above on an alcohol breath test. The violation is generally a gross misdemeanor punishable by up to a year in jail — and at least one day in custody for a first offense.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

Of the 745 people who tested positive for marijuana in the first half of this year, the State Patrol says a slight majority tested above the legal limit. The exact number: 420. It’s a curious coincidence, since “420” is an old slang term for marijuana.

Read more here: http://www.bellinghamherald.com/2013/11/22/3331209/more-drivers-testing-positive.html#storylink=cpy

My opinion? If they can, they will. Meaning, if the police can test your for blood for marijuana, they will. As I predicted in earlier blogs, the passage of I-502 gives police more search authority. If police think you’re high, they’ll request a blood test. If you refuse, they’ll get a warrant for your blood and/or enter a “Refusal” DUI.

The data is predictable. What I’m seeing happen, unfortunately, is the police seeking blood tests on my clients who are not smoking marijuana. Making matters worse, I’m seeing judges impose Ignition Interlock Devices as a condition of pretrial release, and before clients are convicted of ANYTHING!

There’s something wrong with that. Just saying.

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

State v. Quaale: Mistrials Happen When Police Officers Offer Opinion Testimony

Constitutional Rights, DUI, law enforcement, misdemeanor, police, Prosecutorial Misconduct, Washington Court of Appeals, , ,

In State v. Quaale, the WA Court of Appeals wrote an excellent opinion on the issue of whether a defendant’s right to a fair trial was violated when the Prosecutor invited objectionable testimony from the officer.

The defendant was charged with Eluding Police and DUI. At trial, the Trooper  was asked to describe the extent of his experience, explain the Horizontal Gaze Nystagmus and the procedure for testing it, and tell the jury about his administration of the test to the defendant. The prosecutor also asked, “In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not the defendant’s ability to operate a motor vehicle was impaired?”

Rightfully, the defendant’s lawyer immediately objected that the Trooper was being asked to provide an opinion on the ultimate issue determining guilt. The objection was overruled. The Trooper answered, “Absolutely. There was no doubt he was impaired.”

The Court of Appeals reasoned that impermissible testimony regarding the defendant’s guilt may be reversible error because such evidence violates the defendant’s constitutional right to a jury trial, which includes independent determination of the facts by the jury. Here, and even where expert testimony is helpful to the jury, it is unnecessary for a witness to express belief that certain facts or findings lead to a conclusion of guilt. Opinion testimony should be avoided if the information can be presented in such a way that the jury can draw its own conclusions.

 My opinion? The defense attorney was very smart to object to the Officer’s opinion testimony and preserve the issue for appeal. Opinion testimony should NEVER be allowed at trial. The State’s witnesses – including officers – may only testify to their observations. They are not expert witnesses who can offer opinions.

Before trial, I routinely draft and argue motions in limine expressly requesting the judge to instruct the Prosecutor to not ask questions instructing witnesses/officers to provide opinion testimony. These motions strengthen a standing objection and help preserve legal issues for appeal when they are violated. Great opinion.

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

The Brass Tacks Part II: Increased Penalties for DUI if Child Under 16 In Vehicle

Department of Licensing, DUI, Ignition Interlock Device, Legislation, Pretrial Investigations, Washington State Patrol, , ,

Here’s a summary of more changes that went into effect on September 28, 2013 regarding our ever-increasing and ever-punitive DUI laws. The changes included changes to RCW 46.61.5055 that increase DUI penalties if there was a passenger under 16 in the car. There’s also an increase in mandatory jail for repeat offenders. Here is what is NOW subsection 6 of RCW 46.61.5055: 

 

(6) If a person who is convicted of a violation of RCW 46.61.502 or 46.61.504 committed the offense while a passenger under the age of sixteen was in the vehicle, the court shall:

 

(a) Order the use of an ignition interlock or other device for an additional six months;

 

(b) In any case in which the person has no prior offenses within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional twenty-four hours of imprisonment and a fine of not less than one thousand dollars and not more than five thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent;

 

(c) In any case in which the person has one prior offense within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional five days of imprisonment and a fine of not less than two thousand dollars and not more than five thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent;

 

(d) In any case in which the person has two or three prior offenses within seven years, and except as provided in RCW 46.61.502(6) or 46.61.504(6), order an additional ten days of imprisonment and a fine of not less than three thousand dollars and not more than ten thousand dollars. One thousand dollars of the fine may not be suspended unless the court finds the offender to be indigent.

 

RCW § 46.61.5055 (6).

 

My opinion? The passage of I-502 has simultaneously loosened Washington’s Drug Laws and enhanced Washington’s DUI laws. Period.

 

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