Articles Posted in DUI

During a Washington criminal sentencing proceeding, an offender generally cannot challenge the constitutional validity of a previous conviction.  If, however, a conviction that is “constitutionally invalid on its face,” the court cannot consider it during sentencing.  A Washington appeals court recently considered whether a defendant’s prior conviction was facially invalid under the merger doctrine.

The merger doctrine applies when the state has to prove the occurrence of an act that is defined as a separate crime to prove a particular degree of the charged crime. In such circumstances, the crimes “merge.” The merger doctrine does not apply if the legislature intended to allow multiple punishments.

If the legislature did not clearly intend to allow multiple punishment for the same act under different laws, the court determines its intent through application of the same evidence test, merger, and the independent purpose test.

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Two bills in the Washington legislature propose significant changes to Washington’s impaired driving laws.  SB 5002 proposes to lower the legal limit for a driver’s alcohol concentration. SB 5032 would extend the felony DUI lookback period and create a sentencing alternative for certain impaired driving convictions.

If passed, SB 5002 would lower the legal alcohol concentration from .08 to .05.  The change would apply to the DUI statute at RCW 46.61.502 and to the physical control statute at RCW 46.61.504.  According to SB 5002, there were 540 fatal crashes in Washington in 2021, killing more than 600 people. The bill states that there was a 31.3% increase in crashes resulting from an impaired driver between 2020 and 2021.  The bill points to a Utah law that lowered the legal alcohol concentration limit from .08 to .05 and a subsequent 19.89% drop in fatal crashes and an 18.3% drop in the fatality rate.  The bill estimates such a change in Washington would result in an 11.1% decrease in alcohol-related fatalities and between 538 and 1,790 lives saved annually.

If SB 5032 passes, a person could be convicted of felony DUI or felony physical control instead of a gross misdemeanor if they have three or more previous convictions within the past 10 years.  The current law has a lookback period of 15 years.  Similar bills proposing to expand the lookback period over the past few years have failed.

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A DUI in Washington is generally a gross misdemeanor, but it can be elevated to a felony if the defendant has three prior offenses, as defined under the statutes within the past 10 years.  RCW 46.61.502.  RCW 46.61.5055 sets out which convictions qualify as prior offenses, including reckless driving if it resulted from a charge that was originally filed as a DUI.  A Seattle DUI attorney can explain whether a conviction may be considered a prior offense.

The Supreme Court of Washington recently reviewed a felony DUI conviction.  At the time of the offense, the statute required four prior offenses for elevation to a felony, but it has subsequently been amended to require only three.  The defendant had a previous DUI conviction, a first-degree negligent driving conviction, and two convictions for reckless driving.  At trial and on appeal, the defendant argued that the state failed to present sufficient evidence that the reckless driving convictions “involved alcohol.”

The trial court assessed the prior convictions on the record and found that there was sufficient evidence for the case to move forward.  The court did not instruct the jury that it had to find that each prior offense involved alcohol to find the defendant guilty of felony DUI.

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The Washington State Constitution recognizes a privacy right and prohibits disturbance of that privacy without authority of law.  When a driver is arrested for driving under the influence, the vehicle must be impounded pursuant to RCW 46.55.360.  A defendant recently challenged the impound statute as a violation of the Washington State Constitution.

The defendant was stopped for speeding.  According to the court opinion, the officer smelled alcohol on the defendant’s breath.  The defendant declined a field sobriety test and the officer arrested him for suspicion of driving while under the influence of intoxicants.  The officer impounded the defendant’s jeep without considering any reasonable alternatives.

The officer performed an inventory search of the vehicle and found items he believed were associated with drug dealing.  Cocaine was found on the defendant in a search incident to arrest.  The defendant was charged with DUI and possession with intent to deliver controlled substances.

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To convict a defendant of vehicular homicide in a Washington criminal case, the state must prove that the defendant’s conduct was the proximate cause of the victim’s death.  In Washington law, the term “proximate cause” includes both actual cause and legal cause.  In a recent case, a defendant challenged his vehicular homicide conviction, alleging that there was an intervening superseding cause of the victim’s death.

According to the court’s opinion, the defendant was intoxicated when he rear-ended a vehicle at 85 m.p.h.  The defendant did not stop to assist the other driver, whose vehicle was disabled across the left and middle lanes.

A witness to the collision stopped to help.  The Good Samaritan pulled onto the right shoulder and engaged his flashers.  He crossed the freeway to help the driver and was on the phone with the 911 dispatchers when another vehicle struck the disabled vehicle.  The impact caused the disabled vehicle to strike the Good Samaritan, causing injuries that resulted in his death 12 days later.

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Defendants in Washington criminal cases often challenge the evidence used against them.  One way to challenge evidence is to challenge the validity of the search warrant used to obtain it.  When a court issues a search warrant, it must determine there is probable cause based on the facts presented to it.  This determination is the court’s responsibility and cannot be made by police officers, so there must be more than conclusory statements supporting the warrant.  The court is permitted, however, to draw reasonable inferences from the facts presented.

The defendant in a recent case challenged a search warrant.  According to the appellate court opinion, the defendant was convicted of vehicular assault after losing control of her vehicle and crashing into two other vehicles.  Subsequent blood tests found a Blood Alcohol Concentration (BAC) of 0.13 and 4.0 nanograms of THC.  The defendant appealed her conviction, arguing a lack of probable cause to support the warrant authorizing the blood draw.

The firefighter paramedic who responded to the scene saw a female driver who was barely conscious.  He transported her to the hospital.  He identified the defendant as the driver.

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Photo Credit: Paul Biryukov /

A misdemeanor Washington DUI can be elevated to a felony under some circumstances, including a prior conviction for “[v]ehicular assault while under the influence of intoxicating liquor or any drug.”  To elevate a charge, the state must prove the existence of the conviction and that it relates to the defendant.  Vehicular assault is an alternative means offense, with three alternatives, but not all of the alternatives qualify for the enhancement.  A Washington appeals court recently considered whether the state had proved a defendant’s prior conviction for vehicular assault qualified for the enhancement.

The defendant was charged with a DUI in 2016.  The state alleged the defendant’s prior conviction for vehicular assault while under the influence made the current offense a felony.  After finding the defendant had committed DUI, the jury was then asked to determine whether the defendant had a qualifying prior vehicular assault conviction. The state introduced the court records from the previous conviction as well as testimony from a police officer.  The jury found the defendant had a prior vehicular assault while under the influence of alcohol conviction.

The defendant appealed, arguing the state did not produce sufficient evidence to elevate the offense to a felony.  He argued the evidence only established a generic conviction for vehicular assault, rather than showing that he was convicted of vehicular assault while under the influence pursuant to RCW 46.61.522(1)(b).

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Washington DUI defense attorneys often have to fight vigorously to ensure they get information from the State.  In DUI cases, the State sometimes fails to name the toxicologist who will testify until very close to the trial.  In one particularly egregious case, the prosecution provided a list of potential witnesses and waited until the morning of the trial to identify the actual witness.  We discussed this case following the Court of Appeals decision, and the Washington Supreme Court has recently reviewed it.

The defendant was charged with driving under the influence.  Five months before the trial, the State disclosed a list of nine toxicologists, indicating one of them would testify.  Two weeks before trial, the defendant filed a supplemental discovery request, seeking identification of the testifying witness.  Three days before trial, the defendant moved to dismiss or suppress the testimony.  On the day before the trial, the State narrowed the list to three names.  It finally identified which toxicologist would testify on the morning of the trial.

The defendant moved to suppress the testimony based on the late disclosure.  The trial court denied the motion, finding no actual prejudice to the defense.  The court also noted that the practice of providing a list rather than disclosing a specific name was caused by underfunding of crime labs rather than mismanagement.

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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.

In 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.

A 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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