Category Archives: Traffic Infractions

State v. Huffman: Crossing the Centerline = DUI Arrest

Constitutional Rights, Due Process, DUI, law enforcement, misdemeanor, police, Terry Stop, Traffic Infractions, Uncategorized, Washington Court of Appeals, Washington State Patrol, , ,

Crossing A Double Yellow Line - i am traffic

Division I of the WA Court of Appeals decided that a single crossing of the centerline is sufficient to justify a traffic stop for a violation of RCW 46.61.100 Keep Right Except When Passing.

In State v. Huffman, defendant Sarah Huffman was arrested for driving under the influence of alcohol (DUI) after being pulled over for weaving in her lane, jerking back from the centerline and crossing the centerline on State Route 9. The two-mile section of the roadway is relatively straight, with a painted yellow line in the center that is at times a double solid line.

Police reports indicate the Trooper Eberle saw Huffman’s vehicle touch the centerline three times, each time immediately jerking back to the right side of the road. On the fourth occasion, the vehicle crossed the centerline by approximately one full tire width. Trooper Eberle did not recall any oncoming traffic at the time the vehicle crossed over the centerline. He stopped the vehicle and subsequently arrested the driver, appellant Sarah Huffman, for driving under the influence.

Huffman claimed the stop was unlawful because her single crossing of the centerline did not give rise to reasonable, articulable suspicion that she committed a traffic infraction under RCW 46.61.100. The district court agreed and granted her motion to suppress all evidence obtained after the stop. On appeal, the superior court reversed, concluding the stop was valid because Huffman committed a traffic infraction by crossing the centerline in violation of RCW 46.61.100.

Huffman appealed her case to Division I of the WA Court of Appeals. She argued that under State v. Prado, and its interpretation of RCW 46.61.140 Driving on Roadways Laned For Traffic, her momentary crossing of the centerline was not a traffic infraction and thus, there was no lawful basis for the stop.

Some background on RCW 46.61.140 and State v. Prado is necessary. In Prado, a law enforcement officer witnessed Mr. Tonelli-Prado’s vehicle cross an eight-inch white dividing the exit lane from the adjacent lane by two tire widths for one second. The Trooper pulled over Prado’s vehicle for violating RCW 46.61.140. This traffic statute addresses the safe changing of lanes (right or left or turn) and the use of a center lane, but does not mention a centerline. RCW 46.61.140(1) states:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The trial court found that that Prado’s motion to suppress was not appropriate because the vehicle actually crossed the lane line, rather than merely touching the lane line. Upon review, however, the Superior Court found that under a totality of the circumstances argument, that a brief incursion not resulting in a “safety problem” was not sufficient grounds to pull over the vehicle. The Prosecutor appealed the ruling of the Superior Court to Division I Court of Appeals. On appeal, Division I upheld the Superior Court and ruled that a vehicle crossing over the line for one second by two tire widths on an exit lane does not justify a belief that the vehicle was operated unlawfully under RCW 46.61.140(1).

In light of this background, Division I granted Huffman’s appeal to decide whether (1) State v. Prado applies and (2) whether the “as nearly as practicable” language of RCW 46.61.140 also applies to RCW 46.61.100.

The Court decided “No,” and “No.” The plain reading of the two statutes and their different objectives leads one to believe that the “nearly as practicable” qualifying language from RCW 46.61.140(1) does NOT apply to RCW 46.61.100. “Our decision in Prado is limited to its facts which involved only a violation of RCW 46.61.140, not RCW 46.61.100. Because it is undisputed that Huffman crossed the centerline, the officer was justified in stopping her to investigate a violation of RCW 46.61.100.” Based on that, the Court of Appeals vacated and reversed the trial court’s orders suppressing all evidence and dismissing the prosecution. The Court also reinstated the charges against Huffman and remanded this matter back to the district court for trial.

My opinion? The Huffman opinion is an attempt to limit the scope and applicability of Prado’s reasoning to RCW 46.61.140. Ever since Prado was decided 7 years ago, the Prosecutors and Judges in district courts have rallied against it. Prado took too much discretionary power out of the hands of police officers who follow and pull over motorists suspected of DUI. Here, the Court of Appeals “stopped the insanity” of Prado and limit its reasoning to violations of RCW 46.61.140 only.

Unfortunately, a pendular swing in one direction often gives momentum to a pendular swing in the opposite direction. More specifically, I fear that the reasoning of Huffman might be applicable to violations of RCW 46.61.670 Driving With Wheels Off Roadway. The statute says the following:

It shall be unlawful to operate or drive any vehicle or combination of vehicles over or along any pavement or gravel or crushed rock surface on a public highway with one wheel or all of the wheels off the roadway thereof, except as permitted by RCW 46.61.428 or for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement, gravel or crushed rock surface thereof.

Therefore – and worst-case scenario – under Huffman, a motorist who briefly/unlawfully drives on a road with one or more wheels off the roadway can be pulled over and investigated for DUI.

Is this fair?

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.

Speeders On Strapped Cities’ Radar

law enforcement, police, Privacy, Terry Stop, Traffic Infractions, Washington State Patrol, , ,

Nearly 600 Towns Get 10% Of Their Budgets (Or More) From Court Fines

Forget about traffic safety. In reality, traffic citations are a revenue-builder for municipalities undergoing the brunt of a deteriorating economy, budget cuts and layoffs.

“We were facing layoffs, and we were trying to think outside the box,” says Police Chief Dean McKimm of Canton County. “I’ll be very blunt about that: It does save jobs. It was kind of a no-brainer.”

Other cities & counties know there’s a lot of money to be made in stepped-up traffic enforcement:

  • In January, Georgia’s new “super-speeder” law kicked in. Get caught going 85 mph or more on a four-lane road in the Peach State and you’ll pay $200 on top of the regular ticket, which is often well more than $100. You’ll do the same if you go 75 mph or more on a two-lane road. Authorities said it filled a niche between regular speeding and reckless-driving violations. In February, super-speeder tickets totaled 1,084. Tennessee is considering a similar law.
  • A Colorado law that went into effect in 2009 doubled fines for speeding (the supporting information noted it would raise about $12 million annually for the strapped state). Another law has made speed guns mandatory in road-work zones.
  • In 2009, California added a $35 assessment to all traffic violations to help renovate 41 courthouses statewide. You’ll pay even if the courthouse where you show up to pay the ticket isn’t getting so much as a coat of paint.
  • The Massachusetts Turnpike Authority said it would collect an additional $1.2 million in fines from speeding tickets in 2008 to make up for lost revenue when troopers from the Massachusetts State Police were transferred the previous year to work around Boston’s “Big Dig” project.

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.

Extra Police On The Prowl For Speeders

Terry Stop, Traffic Infractions, Washington State Patrol, Washington State Traffic Commission, , ,

FCC Speeding Tickets in Missouri... - 636 Traffic Law

Be aware. Starting today, law enforcement agencies statewide will crack down on speeding with extra patrols on local roads, state highways and interstate freeways, according to a news release.

State v. Buelna Valdez: Search Incident to Arrest is Invalid (Tip of the Hat To Arizona V. Gant)

Constitutional Rights, Drug Offenses, Due Process, felony, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

The Fourth Amendment Reasonableness Requirement - FindLaw

In State v. Buelna Valdez, the WA Supreme Court held that a search incident to arrest was invalid under the 4th Amendment.

Here, a police officer pulled over a vehicle because it had only one working headlight.  The officer ran a records search on the driver, Mr. Buelna-Valdez, and discovered there was an outstanding warrant for his arrest.  The officer handcuffed and secured the defendant in his patrol car.  Officer searched the vehicle.  He noticed loose dashboard panels.  He calls a K-9 unit.  The K-9 uncovered methamphetamine located under a moldy cup holder.  The passenger was then also arrested. Both men were charged with drug offenses.

The WA  Supremes held that the automobile search incident to arrest was unlawful.  They reasoned that because the arrestee was handcuffed and secured in the backseat of a patrol car, he no longer had access to any portion of his vehicle.  The officer’s search of the vehicle was therefore unconstitutional under both the Fourth Amendment and the WA Constitution.  The Court also embraced the U.S. Supreme Court’s Arizona v. Gant in finding factual similarities between the cases:

“Under the Fourth Amendment, the arrestee was secured and not within reaching distance of the passenger compartment at the time of the search, so neither officer safety nor preservation of evidence of the crime of arrest warranted the search.  See Gant, 129 S. Ct. at 1719.  Furthermore, the arrestee was arrested based upon an outstanding warrant; the State has not shown that it was reasonable to believe that evidence relevant to the underlying crime might be found in the vehicle.  See Gant, citing Thornton, 541 U.S. at 632 (Scalia, J., concurring).”

The Court also reasoned the search was conducted without a warrant, even though the circumstances did not prevent officers from obtaining one prior to the search:  “There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed.  As such . . . the evidence collected from that search should be suppressed, and the resulting convictions reversed.”

My opinion?  Obviously, I’m happy.  The case is great law for defense attorneys.  Indeed, it goes even further than Gant. Although good, Gant was slightly problematic because it allowed police to search for evidence of the crime of arrest.   In this decision, however, the WA Supremes only allow a search if there is evidence of destruction.  Therefore, in WA, if the defendant is in the squad car, the police cannot search the defendant’s vehicle.  Beautiful.

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. Magee: Police Officers MUST Witness Traffic Infractions

Constitutional Rights, Due Process, law enforcement, misdemeanor, police, Probable Cause, Red Light Cameras, Search and Seizure, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

In State v. Magee, the WA Supreme Court held police officers lack authority to issue traffic citations if the officer fails to witness the infraction take place.

Mr. Magee was cited for second degree negligent driving after the state patrol received reports from other drivers that a vehicle was traveling the wrong direction on the highway.  The dispatched trooper found Magee parked nose-to-nose with a friend’s car, facing the wrong direction on the shoulder of the SR 512 on-ramp.

The trooper assumed Magee had driven against traffic in order to get in this position.  Magee was cited for negligent driving.  He challenged the infraction, arguing the officer lacked authority to issue a citation when she had not witnessed an infraction.  Unfortunately, his traffic court ruled against him.

Magee’s case found its way to the WA Supreme Court.  They reasoned that RCW 46.63.030 lists the instances where a law enforcement officer has the authority to issue a notice of traffic infraction:

(a) When the infraction is committed in the officer’s presence;

(b) When the officer is acting upon the request of a law enforcement officer in whose presence the traffic infraction was committed;

(c) If an officer investigating at the scene of a motor vehicle accident has reasonable cause to believe that the driver of a motor vehicle involved in the accident has committed a traffic infraction;

(d) When the infraction is detected through the use of a photo enforcement system under RCW 46.63.160; or

(e) When the infraction is detected through the use of an automated traffic safety camera under RCW 46.63.170.

The Supremes overturned Magee’s conviction after analyzing the statute: “RCW 46.63.030 plainly requires us to conclude that an officer must either be present when the infraction occurs or meet one of the other statutory circumstances before issuing a ticket. There is no contention subsections (b) through (e) apply in this case.

Instead, the State argues that the trooper actually witnessed the citable offense because the negligent behavior was “ongoing.” But negligent driving in the second degree is a moving violation. For the infraction to be valid, the movement must have been made in the officer’s presence.”

My opinion?  Again, excellent!  Officers shouldn’t hand out traffic infractions if they don’t witness the infraction happen.  PERIOD.  This violates due process.  This new opinion is (thankfully) consistent with State v. Campbell, 31 Wn.App. 833, 644 P.2d 1219 (1982).  I use Campbell in my pretrial motions to suppress unlawfully obtained evidence.

In Campbell, a motorist drove by a Washington State Trooper and yelled to the trooper that there was a drunk driver going southbound.  The unknown witness described the vehicle.  The Trooper caught up to the vehicle but did not observe the driver violate any traffic laws.  Nevertheless, the trooper stopped the vehicle, conducted a DUI investigation, and arrested the driver for DUI.

The Campbell court concluded that although a police officer may conduct an investigatory stop for suspected drunk driving, but before doing so, s/he must first possess a well-founded suspicion based on articulable facts that such a violation of law was or is presently being committed.

Good job, WA Supremes!

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. Patton: WA Supreme Court Acknowledges Search and Seizure Protections Afforded by Arizona v. Gant.

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, marijuana, misdemeanor, police, Police Misconduct, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can Police Search Your Car Without a Warrant?

In State v. Patton, the WA Supreme Court held that an automobile search which happens after arrest is not justified unless the defendant is within reaching distance of the passenger compartment at the time of search and the search is necessary for officer safety or to secure evidence of the crime of arrest.

Randall Patton was wanted on a felony warrant.  A Skamania County Sheriff Deputy spotted him. Patton was on his property and leaning into his own car through the window, rummaging with something on the seat.  The Deputy told Patton he was under arrest.  Patton fled, but was soon apprehended inside a trailer.

Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals.

The Court found that Patton was arrested when the officer “manifest[ed] an intent to take [him] into custody” while Patton was standing by his car. Nevertheless, “the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence.”  The court elaborated their reasoning with the following:

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Congratulations to Justice Jim Johnson, who found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.   In Gant, the U.S. Supremes held that a search conducted by police officers after handcuffing the defendant and securing the scene violates the Fourth Amendment’s protection against unreasonable searches and seizures.

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

Bellingham Police Enforce Bicycle Laws More Heavily

Bellingham, Bellingham Defense Attorney, Due Process, law enforcement, police, Probable Cause, Red Light Cameras, Search and Seizure, Terry Stop, Traffic Infractions, Uncategorized, Washington State Traffic Commission, , ,

With the onset of worsening weather conditions and fewer hours of daylight, a new “education and enforcement” effort is under way to help bicyclists and cars better share the road.

Under the new program, police officers are encouraged to treat bicyclists equal to drivers when it comes to stopping and ticketing people for traffic violations. Officers will specifically be looking for lighting violations, which include improperly equipped bicycles, and traffic violations, such as failing to obey stop signs and stop lights.

The Washington Traffic Safety Commission provides a free brochure on its Web site which outlines safety tips for bicyclists as well as the laws bicyclists must follow:

My Opinion?  I’m not buying it.  Can we say, “New and creative way to ticket people and generate revenue for empty City coffers?”  Personally, I don’t see the need for “education and enforcement” of bicycle laws.  No accidents have happened.  There’s no great increase of bicyclists (I’d think fewer, given worse weather conditions).  There’s no growing agitation between bicyclists and motorists.  If it ain’t broke, don’t try and fix it.

My greatest concern is that police have more incentive to pull bicyclists over and conduct a DUI investigation. Section 45.61.502 of the Revised Code of Washington, which details driving under the influence and penalties, refers to people driving a vehicle. A vehicle, as defined in RCW 46.04.670, “includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, including bicycles.”

Not good for bicyclists . . .

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.

Seattle v. St. John: Police May Obtain a Search Warrant For a Blood Sample When Motorists Refuse to Give Breath Test.

Blood Test, Constitutional Rights, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Can I Refuse A Blood Test? - Welch and Avery

In Seattle v. St. John, the WA Supreme Court held that police may obtain a search warrant for a blood sample when motorists refuse to give a breath test.

After crashing his motorcycle in Seattle, Robert St. John was investigated for DUI. A police officer asked St. John to consent to a blood alcohol test.  St. John refused.   The officer obtained a warrant for the test.  The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent Law that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court:

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The WA Supreme Court upheld the superior court and allowed the blood test evidence.  They reasoned that the Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer’s statements about the Implied Consent law did not foreclose his obtaining the warrant.

I echo the dissenting opinion of Justice Charles Sanders.  Simply put, an officer cannot force a driver to submit to a blood test if the driver refuses consent.  However, under the majority opinion’s reasoning, a driver’s refusal to consent to a Breath test is essentially meaningless.

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.

X52 Program Leads to Increased DUI Patrols and Arrests

Bellingham, Bellingham Defense Attorney, Constitutional Rights, Department of Licensing, Due Process, DUI, law enforcement, misdemeanor, police, Privacy, Reckless Driving, Search and Seizure, Terry Stop, Traffic Infractions, Washington State Patrol, Washington State Traffic Commission, Whatcom County Criminal Defense, , ,

2018 DRUNK-DRIVING AWARENESS ENFORCEMENT CAMPAIGN | DMV Assistant

This past Labor Day Weekend, the Washington State Patrol made 296 arrests for suspicion of DUI.  That’s slightly higher than the 292 arrests WSP made over the same weekend in 2008.  In a recent report released by the WSP, there were 44 calls from concerned motorists which led to 20 arrests for suspicion of DUI.  The increased arrests — and inevitable prosecutions — are directly attributed to Washington State Patrol’s (WSP)  implementation of the X52 anti-DUI campaign.

X52 stands for extra patrols 52 weeks per year. The goal of the X52 program is to reduce speeding and DUI-related traffic fatalities and serious injuries on Washington’s roads.

Under the program, Washington Traffic Safety Commission released $450,000 worth of grants to local law enforcement agencies to help them provide additional impaired driving and speed patrols every week of the year.  These sustained enforcement patrols specifically target speed and DUI offenders, as well as look for other traffic violations. The program is being administered statewide through a network of community traffic safety task forces.

The X52 program also includes initiatives designed to let the public know that these extra patrols are happening in Washington every week. $450,000 is budgeted for paid radio advertising and alternative messaging. Earned media efforts will be spearheaded by community traffic safety task forces.

My opinion?  Clearly, the WSP is aggressively campaigning the X52 program.  I foresee even greater DUI patrol this holiday season.

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. Eriksen: Tribal Officers Can Pursue Suspects Off the Reservation

Constitutional Rights, Due Process, DUI, law enforcement, misdemeanor, police, Privacy, Probable Cause, Reckless Driving, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

Anatomy of a DUI investigation - Sanford Horowitz Criminal Defense, PC.

In State v. Eriksen, the WA Supreme Court decided that tribal police officers can pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation.

A Lummi Nation Police Department officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider.  He began following the vehicle and activated his emergency lights.  After traveling a quarter mile the car pulled into a gas station located off the reservation.  The police officer witnessed the driver, Loretta Eriksen, hop over the car’s center console and into the passenger’s seat.  The officer detained Eriksen until a Whatcom County police deputy arrived, who arrested her for DUI.

Ms. Eriksen was convicted for DUI.  The trial court said Lummi Nation’s inherent sovereign power authorizes tribal police to continue in “fresh pursuit” of offenders who drive off the reservation.

The Supreme Court agreed.  It reasoned  that the Lummi Nation is a sovereign nation with inherent authority to enforce its laws and detain Indians or non-Indians who violate those laws.  Courts have long recognized the right of law enforcement officers to cross jurisdictional lines when in hot pursuit of a violator.

The court said this doctrine should apply to sovereign tribal nations as well.  “The Lummi Nation Police Department has authority under the Lummi Nation’s sovereign authority and under the Washington Mutual Aid Peace Officers Powers Act of 1985, chapter 10.93 RCW, to enforce its laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”

My opinion?  I’m not surprised.  Recently, the WA Supremes have deciding other “hot pursuit” cases in similar fashion.  Indeed, in State v. Rivera-Santos, a recent case which my blog covered earlier this month, the WA Supremes decided that a defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights IF law enforcement was engaged in hot pursuit across state lines.

Additionally, I’ve found the criminal justice system is extra tough on defendants who “elude” law enforcement with high-speed chases.  Eluding is a fairly serious felony, especially if the defendant already has felony convictions on their criminal record.

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.