Articles Posted in DUI

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Article I, section 7, of the Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  Washington criminal defense attorneys know that the privacy protections of section 7 provide greater coverage than the Fourth Amendment of the U.S. Constitution in some areas.

restroom-signIn a recent case, the Washington Supreme Court considered whether section 7 prohibits a requirement of random urinalysis of individuals on probation for a misdemeanor DUI offense.  The defendant in this case pleaded guilty to a gross misdemeanor DUI offense.  The trial court imposed a partially suspended sentence, with a condition that she not consume alcohol, marijuana, or nonprescribed drugs.  The court also ordered that she submit to random urinalysis drug testing to monitor her compliance with that condition.

The defendant appealed on the grounds that the random urinalysis condition violated her privacy rights under the Fourth Amendment to the U.S. Constitution as well as article I, section 7 of the Washington Constitution.  She argued that a warrantless search of an individual on probation for a misdemeanor “must be supported by a well-founded suspicion” that she violated one of the conditions.  The court found in favor of the defendant, vacated the sentence, and remanded.

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Individuals are protected from unreasonable seizures by both the U.S. and Washington Constitutions.  Warrantless seizures are unreasonable unless an exception applies, and it is the state that must establish that an exception exists.  A traffic stop is considered a seizure.  For a warrantless traffic stop to be constitutional, there must be a reasonable articulable suspicion of criminal activity or a traffic infraction.  The scope of the stop must be reasonably limited.

roadA Washington appeals court recently considered whether the state had a reasonable articulable suspicion when it was undisputed that the defendant had crossed the fog line for about 200 feet.  A state patrol trooper was driving behind the defendant and observed her drive two wheels of her vehicle over the fog line for about 200 feet.  The trooper pulled the defendant over.  She submitted to sobriety tests, and the trooper arrested her for driving under the influence after observing clues of intoxication.

The defendant moved to suppress the evidence from the stop, and she moved for dismissal, arguing that the trooper did not have a reasonable suspicion to justify the stop.  The state argued that the defendant committed an infraction when she drove on the shoulder.

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In cases involving driving under the influence, the state often relies on test results to show that the defendant was intoxicated.  However, the prosecutor may also point to the defendant’s behavior as evidence of intoxication.  A Washington appeals court recently considered whether a prosecutor committed misconduct when she referenced negative statements the defendant made about the other driver and her passenger after the accident in a recent unpublished case.

country-roadsThe defendant appealed his convictions for two counts of vehicular assault.  According to the appeals court’s opinion, the defendant had three or four drinks on the evening of the collision.  His blood alcohol level after the accident was .12 grams per 100 milliliters. A witness had seen the defendant’s truck swerve across the yellow line several times.  The witness saw the defendant drive into the opposite lane toward an oncoming car.  The two vehicles collided head-on.

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Often, a person charged with driving while under the influence will face additional, related charges.  Attempting to elude police is one such charge.  Sometimes, a person may feel they are justified in not stopping for the police officer, but a necessity defense is very difficult to prove in this type of case.

stoplightIn a recent unpublished case, a Washington appeals court considered a defendant’s claim of necessity based on her statement that she did not stop because she was fleeing a person who had threatened her.

According to the opinion, the defendant ran a red light in front of an officer and failed to stop when he engaged the emergency lights.  The defendant stopped in front of a residence and tried to go inside.  The officer tackled her to stop her and subsequently arrested her for DUI.

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Under Washington law, police must advise individuals of the right to independent testing when a breath test is administered pursuant to the implied consent statute.  Under a previous version of the statute, this information was also required for blood tests.  A Washington appeals court has recently addressed whether police must still inform of the right to independent testing of blood when it is no longer specifically included in the statute.

Yellow lineThe defendant was convicted of vehicular assault as a result of a two-car collision.  The defendant appealed, arguing that blood test evidence should have been excluded because he was not informed he had the right to independent tests at the time the blood was taken.

According to the court’s opinion, the defendant caused the accident by crossing the center line. The defendant called 911.  The police officer smelled alcohol and noticed signs of impairment at the scene.   The defendant went to the hospital by ambulance.  The trooper who spoke with the defendant at the hospital also smelled alcohol and observed signs of impairment.  The defendant did not respond to the trooper’s requests for a field sobriety test or a portable breath test.  Blood was subsequently drawn pursuant to a warrant.  The defendant’s blood alcohol content was 0.12 three and a half hours after the collision.

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The prosecution is generally required to prove some level of intent, or mens rea, to succeed in obtaining a guilty verdict in a criminal case.  Some offenses, however, are strict liability offenses, meaning the prosecution does not have to prove intent.  A Washington appeals court recently considered whether the vehicular homicide and vehicular assault statutes require the prosecution to prove a mens rea of ordinary negligence in the case of driving under the influence.

car crashIn a recent case, the defendant appealed convictions for vehicular homicide and vehicular assault, arguing the jury instructions were erroneous because they allowed the jury to find her guilty without a finding of ordinary negligence.

According to the opinion, the defendant’s truck spun out on an icy bridge, slid off the road, and hit two people who were investigating an accident scene.  One man died, and the other was seriously injured.   The officers restrained the defendant and had blood drawn at the hospital.  The tests revealed a blood alcohol concentration of .09.

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Implied consent is an important aspect of DUI defense.  The Washington implied consent statute, RCW 46.20.308, requires officers to inform a driver suspected of DUI of certain consequences of refusing or submitting to a breath test.  When recreational marijuana use was decriminalized in Washington, the legislature set a legal limit for THC levels in the blood while driving.  It also added a warning to the implied consent statute, stating the consequences of a breath test that indicated the driver’s THC concentration was above the legal limit.  The available breath tests, however, could not measure THC.  Although the statute has since been amended again, there were cases that arose under the language requiring the THC warning.

PlantThis blog previously discussed the case of State v. Murray, wherein the Court of Appeals found that the defendant’s breath test results were not admissible because the officer did not provide the THC warning.

The Supreme Court of Washington recently reviewed that case, consolidated with another.  The trooper involved in each case used an identical form in providing the implied consent warning.  The warning did not include statutory language regarding THC, but it advised the defendant that he or she was subject to a driver’s license suspension, revocation, or denial if the test indicated he or she was under the influence of alcohol.  The form stated the defendant had the right to refuse the test, but if he or she did so, his or her driver’s license, permit, or privilege to drive would be revoked or denied for at least a year, and that refusal could be used in a criminal trial.  It further stated that the driver’s license, permit, or privilege to drive could be suspended, revoked, or denied for at least 90 days if the defendant was at least 21 years old, the test indicated a blood alcohol level of .08 or more, and the defendant was in violation of RCW 46.61.502, Driving Under the Influence, or RCW 46.1.504, Physical Control of a Vehicle under the Influence.

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In Washington criminal cases, the prosecution must disclose upon written demand the names and addresses of the people it “intends to call as witnesses . . .” and any expert witnesses it intends to call at trial, if that information is within its knowledge, possession, or control.  The Washington Court of Appeals recently considered whether it was permissible for the State to wait until the day of trial to name the actual witness in State v. Salgado-Mendoza.

RoadAfter being arrested for DUI, the defendant voluntarily submitted to two breath tests.  Several months before his scheduled trial date, he requested that the State disclose information about its expert witnesses.  The State filed a witness list in December 2012, naming nine toxicologists, one of whom would testify.

The defendant filed a supplementary discovery demand about two weeks before trial, seeking the names of all the expert witnesses the state intended to call.  Three days before trial, he moved for the dismissal or exclusion of the toxicologist’s evidence.  He argued the State had committed governmental misconduct by failing to disclose who would testify, despite multiple requests.

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Under the missing witness doctrine, if a person who could have been called to testify is not, the jury may infer that person’s testimony would have been unfavorable to the party who naturally would have called him or her.  This doctrine and the associated jury instruction can be highly detrimental to a case, and are therefore to be used sparingly, particularly in the case of a criminal defendant.  There are therefore requirements and limitations to when they apply.

beer-cupThe Washington Court of Appeals recently considered the application of the missing witness jury instruction in State v. Houser .  A woman called 911 after the defendant knocked on her door at about 9 p.m. with a swollen lip and bloody nose.  He told the woman’s husband that his car was in a ditch about a mile away.  The defendant later told the state trooper he had some beers that night and drove off the road and struck a pole.  After a field sobriety test indicated impairment and he was arrested, the defendant said he was not driving and that his “buddy” had been the driver.

The defendant was charged with felony DUI.  The defendant testified he was waiting in his truck outside his friends’ house when he saw an old friend he had not seen in many years.  The two decided to get some marijuana, with the friend driving the defendant’s truck because the defendant had been drinking.  Afterward, they were on their way to another friend’s house when the accident occurred.  The defendant testified his friend was driving at the time of the accident.  He said he could not remember exiting the truck.  He knew his friend did not stay in the truck, but did not know how he got out or where he went.  He had not contacted the friend since the accident, had not tried to reach him, and did not know how to do so.

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In a significant ruling, Washington’s highest court tackled the question of whether a defendant’s refusal to perform a field sobriety test may be used against him at trial on a charge of driving under the influence (DUI). The court ultimately held that a field sobriety test is not a search but a seizure justified under the doctrine of Terry. Therefore, the court explained, defendants do not have a constitutional right to refuse a field sobriety test, and such a refusal may properly be used as evidence of guilt against them at trial.dui charge

In State of Washington v. Mecham (Wash. June 16, 2016), a police officer ran a random license check on the defendant’s vehicle while stopped behind him at a light. After finding an outstanding warrant, the police officer pulled over the defendant and arrested him. The officer smelled alcohol on the defendant’s breath and observed an open beer can in the defendant’s passenger seat. The officer asked the defendant if he would consent to perform a field sobriety test, and the defendant refused. The police eventually obtained a search warrant authorizing a blood draw, which indicated alcohol in the defendant’s system. Following a trial, a jury found the defendant guilty of felony DUI. The defendant appealed, arguing that the trial court erred in allowing evidence of his refusal to perform a field sobriety test to be used against him at trial.

In Washington, although prosecutors may not comment on a refusal to waive a constitutional right, the state may admit evidence that a defendant is asserting a non-constitutional right as evidence of consciousness of guilt at trial. On appeal, the court narrowed the dispositive issue to whether a defendant has a constitutional right to refuse to perform a field sobriety test.

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