DUI Category Archives — Page 3 of 4 — Seattle Attorneys Blog Published by Family and Injury Law, Criminal Defense Lawyers

Washington Supreme Court Finds No Alternative Means to Commit DUI Under Prior Statute

January 20, 2016 | by Blair & Kim, PLLC

The Supreme Court of Washington issued a recent opinion in the case of State v. Sandholm (Wash. Dec. 3, 2015), interpreting the former version of the driving under the influence (DUI) statute, RCW 46.61.502, in order to determine the number of alternative means of committing an offense under the statute. In addition, the court analyzed former RCW 9.94A.525 to decide how offender scores for prior convictions are calculated.

In Sandholm, the defendant was pulled over while driving and ultimately charged with felony DUI, as a result of his prior DUI offenses within 10 years. At trial, the jury instructions presented two alternative statutory means to commit DUI: (1) that the defendant was under the influence of alcohol or drugs, or (2) that the defendant was under the combined influence of alcohol and drugs. The defendant appealed the verdict against him, arguing that the jury instruction was erroneous, since there was no evidence to support a conviction based on drug intoxication. The Court of Appeals agreed that the jury instruction was erroneous but affirmed the conviction, holding that the error was harmless. The defendant subsequently appealed to the Supreme Court of Washington.

Pursuant to the Washington Constitution, criminal defendants have the right to a unanimous jury verdict. Nevertheless, in alternative means cases, in which the criminal offense can be committed in more than one way, jury unanimity is not required if each alternative means presented to the jury is supported by sufficient evidence. However, a conviction will not be affirmed if the evidence is insufficient to support one or more of the alternative means presented to the jury. Under the former DUI statute, a person is guilty of driving while under the influence if he or she has an alcohol concentration of 0.08 or higher, is under the influence of liquor or any drug, or is under the combined influence of or affected by intoxicating liquor and any drug.

Court Finds Constitutional Violation of Defendant’s Right to Remain Silent in Washington DUI Case

November 11, 2015 | by Blair & Kim, PLLC

A Washington Court of Appeals recently reviewed a DUI felony conviction in the case of State v. Diaz, No. 46016-5-II (Wash. Ct. App. Oct. 6, 2015), after a jury found the defendant guilty of felony driving under the influence. The defendant’s primary argument on appeal was that his constitutional right to be free from self-incrimination was violated when a police officer testified at trial regarding his post-arrest right to silence. Ultimately, the court agreed that the comments were a constitutional violation but harmless error.

In Diaz, the defendant’s vehicle was found heavily damaged against a telephone pole with the engine still running, late at night. The defendant was observed crawling out of a ditch nearby, missing a shoe, and bearing marks on his body allegedly consistent with injuries caused by a seatbelt and airbag. The shoe was later found on the driver’s side floorboard. When the defendant refused a breath test, the police transported him to a hospital where, pursuant to a search warrant, a blood sample was taken, indicating that the defendant’s blood alcohol level was over the legal limit. The only element in dispute at the trial was whether the defendant was the driver of the vehicle.

The Fifth Amendment to the United States Constitution provides that no person shall “be compelled in any criminal case to be a witness against himself.” This provision is applied to states through the Fourteenth Amendment, and the Washington State Constitution also shares an equivalent right. In Washington, a defendant’s constitutional right to silence applies in both pre- and post-arrest situations. In the post-arrest context, it is a violation of due process for the State to comment upon or otherwise exploit a defendant’s exercise of his right to remain silent. In addition, it is constitutional error for a police witness to testify that a defendant refused to speak to him or her, since the State may not use a defendant’s constitutionally permitted silence as substantive evidence of guilt.

Washington Supreme Court Holding Limits Protection of Rule 3.1 in DUI Case

October 9, 2015 | by Blair & Kim, PLLC

The Washington Supreme Court recently published an opinion in the case of State v. Fedorov, addressing the issue of whether a police officer’s presence in the room where the defendant was speaking with his attorney violated CrR 3.1, the rule-based right to counsel. The defendant moved to suppress the results of a breath alcohol concentration (BAC) test based on an alleged violation of CrR 3.1. The lower courts denied the defendant’s motion, and the defendant appealed his subsequent conviction.

Under Washington law, when a person is taken into custody, he must be immediately advised of his right to a lawyer and the opportunity to consult with a lawyer without charge if he cannot pay for one. CrR 3.1(c)(1). At the earliest opportunity, a person in custody who desires a lawyer shall be provided access to a telephone, the number of the public defender or official responsible for assigning a lawyer, and any other means necessary to put the person in communication with a lawyer. CrR 3.1(c)(2). The Fedorov court further explained that unlike the Sixth Amendment right to counsel under the United States Constitution, CrR 3.1 is more limited and provides only the opportunity to speak to counsel, rather than requiring actual communication with an attorney.

Washington Court Holds That Defendant’s Previous Conviction Elevates DUI to Felony Charge

September 15, 2015 | by Blair & Kim, PLLC

In a recently published opinion, the Washington Court of Appeals addressed the issue of whether a defendant’s prior Alford plea could elevate a subsequent driving under the influence (DUI) offense to a felony charge. In State v. Bird, 352 P.3d 215 (Wash. App. 2015), the state appealed the trial court’s decision dismissing the felony DUI charge against the defendant. The Court of Appeals agreed with the prosecution and reversed the trial court, holding that the defendant’s previous conviction for vehicular assault served as a predicate offense enabling the state to charge him with a felony DUI.

In 2009, the defendant entered an Alford plea to vehicular assault under all alternatives, which was accepted by the court. The defendant’s statement on the guilty plea acknowledged that he drove a vehicle while under the influence of alcohol and caused substantial bodily harm to another individual. The court subsequently entered a felony judgment and sentence, finding the defendant guilty on a plea of “Vehicular Assault—All Alternatives,” with “DUI” handwritten over the charge. In 2013, the defendant was arrested after being stopped by police for erratic driving. The officers stated that the defendant was slurring his speech, had red eyes, and performed poorly on field sobriety tests. The defendant also blew a .138 on a portable breath test administered by the officers. Due to his 2009 vehicular assault conviction, the DUI was elevated to a felony offense.

Preparing for your DUI Arraignment

April 26, 2015 | by Blair & Kim, PLLC

What happens when you are pulled over for driving under the influence? what if you didn’t go to jail, and you aren’t sure if you were even arrested? How do you know if you will be charged and when? Continue reading

NHTSA: Drugged Drivers no more likely to crash than Drunk Drivers

March 25, 2015 | by Blair & Kim, PLLC

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION — A new federal study shows that drivers who have used pot are just as likely to get into a crash as sober drivers. The study was performed by the National Highway Traffic Safety Administration (NHTSA) in Virginia and compared more than 3,000 drivers in the area who were involved in an accident with over 6,000 control drivers who were not in an accident.

Case Summary: State of Washington v. Ryan Richard Quaale

March 21, 2015 | by Blair & Kim, PLLC

In December 2014, the Washington State Supreme Court held that the HGN field sobriety test, which can indicate physical signs of alcohol consumption, cannot by itself establish impairment. On August 28, 2011, Washington State Patrol Trooper Stone observed Ryan Quaale driving his truck 56 mph in a 25mph zone on a residential street. Continue reading

Field Sobriety Tests in Washington: Taking the Walk and Turn, Heel to Toe Test

February 28, 2015 | by Blair & Kim, PLLC

The Walk and Turn, Heel toe test one of the most common SFST’s administered in Washington State. A person will first listen to instructions, then walk in a straight line to show divided attention between mental tasks and physical tasks. The mental tasks include comprehension of verbal instructions, processing of information, and recall of memory. The physical tasks include balance and coordination while standing still, walking, and turning. The test is administered in two stages, the instruction phase and the walking phase. Both are required.

During the instruction phase, the officer will instruct the individual not to start walking until told to do so and to stand erect with their right foot in front of their left.

Field Sobriety Tests in Washington: What is HGN?

February 26, 2015 | by Blair & Kim, PLLC

Horizontal Nystagmus is one of three common field sobriety tests currently administered by law enforcement officers across Washington State. Nystagmus is an involuntary rapid movement of the eyeball, which may he horizontal, vertical, or rotatory. An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN. Some investigators believe alcohol intoxication increases the frequency and amplitude of HGN and causes HGN to occur at a smaller angle of deviation from the forward direction.

In administering the horizontal gaze nystagmus test, an officer will look for the three following clues in each eye: (1) lack of smooth pursuit, (2) distinct nystagmus at maximum deviation, and (3) onset of nystagmus prior to 45 degrees. Continue reading

Case Summary: State of Washington v. Michael Baity and Edward Arnestad

February 24, 2015 | by Blair & Kim, PLLC

In State v. Baity, the Washington Supreme Court found the basis for HGN testing, that intoxicated people will exhibit nystagmus, to be generally accepted under Frye. Baity also addressed the admissibility of the 12-step DRE examination, of which HGN was one step, employed by police officers to detect behavior associated with certain drugs and held that it constituted novel scientific evidence. The Court also placed clear limitations on officer testimony based upon this scientific testing.

Michael Baity and Edward Arnestad were each charged in separate prosecutions for driving under the influence of alcohol or drugs (DUI). Continue reading