Washington Personal Injury Attorney

Recent Posts in DUI Defense Category

August 11, 2010

"I'd like you to perform some voluntary Field Sobriety Tests…"

Posted By Dan Gerl

want to make sure you're ok to drive."

That's what the officer tells you after he's asked you to step out of your car, but that's not all he wants. By this point, he's all but "decided" that you're impaired. While he may, in fact, decide after the Field Sobriety Tests (FSTs), that you're ok to drive, that's not why he wants you to do them. He's already building his case against you - which is that you've been driving drunk.

Most people don't know - or realize, until its too late - that you can refuse to perform FSTs in Washington State. When I meet with a potential client, one of the first things I ask is whether they performed the tests, whether the officer told them advised they were voluntary, and whether they believed they had the right to refuse. What they usually tell me is that they did perform them, the officer did say they were voluntary, and yet they did not really think they could refuse.

Police officers almost always tell the driver that the tests are voluntary. While this is not required by law, they must show that the driver consented to the tests, and the best policy is to use the word "voluntary" when asking the driver to consent to the tests. What they almost never tell the driver is that they have the right to refuse them, but that their refusal may be used against them. (This differs from the Implied Consent Warnings given prior to the breath test but that's another topic.)

If the driver refuses to do the FSTs it may be used against them later, if shown to be relevant to the charge. But it may not. It all depends on the circumstances. If it can be demonstrated that the officer by his conduct tried to "coerce" the driver into performing the tests, for instance, the court will likely suppress the refusal or even the test results themselves, if the person agreed performed them. This would be the case even if the officer did use the word "voluntary" - if the court finds coercion, then the word itself in that context is meaningless.

Also, if the driver (respectfully, of course) declines to answer any questions ("how much have you had to drink?") or perform any tests without first speaking to an attorney, his attorney may later argue that he did so on advice of counsel, and not because he believed it would provide evidence of his guilt. The prosecutor bears the burden to show that the driver's refusal is relevant; the odds are strong, however, that a judge will find that one's exercising their prerogative to refuse FSTs "on advice of counsel" is not relevant, and that the judge will exclude the refusal as evidence.

Drivers should always be polite and courteous to police officers. But that doesn't mean they should make the case against themselves easier. Respectfully exercising your privilege to refuse FSTs, particularly on advice of counsel, will very likely result in that evidence not being used against you. Even if a judge finds that your refusal is relevant (an attorney experienced with DUI issues is your best bet here), a refusal to perform FSTs is almost always better presented to a jury than potentially damaging test results (which are specifically designed to make you fail). In my experience as a prosecutor, I can tell you that juries often disregard the fact that the accused refused to perform FSTs, often commenting "if they had the right to refuse, and they exercise that right, why should that be held against them?" I have to admit that I thought hard about it at the time; I don't have to think about it now. Because I know it shouldn't.

A skilled and experienced DUI attorney will know how to best assess the facts of your particular situation and look for legal issues to ensure that you are provided the best defense. The DUI attorneys at Park Chenaur & Associates are skilled and experienced to do just that. Give us a call at 253-839-9440 to schedule a free consultation today.

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August 04, 2010

Are Alcohol-Detecting Steering Wheels the Answer?

Posted By Park Chenaur

In recent news:  

Schumer: Steering Wheels Could Stop Drunk Driving

Elmira, NY.  July 23 — In the future, cars may be able to detect — through a driver’s skin — whether he or she is drunk, and prevent the engine from starting.

U.S. Sen. Charles Schumer, D-N.Y., was in Elmira on Friday to promote a bill that would fund research of alcohol detection devices that could make such a scenario possible.   Called the ROADS SAFE Act of 2010, or Senate bill 3039, the act would direct the National Highway Transportation Safety Administration to spend $60 million over five years to figure out whether it’s possible to make an alcohol-detecting ignition lock that is both reliable and affordable.

"There’s a real chance for a tremendous breakthrough that doesn’t prosecute drunk driving after the act, but prevents it," Schumer said during a news conference with area officials at the Hazlett Building

Schumer said sensors that can detect blood alcohol content could be placed on steering wheels and driver’s seats. He said that technology is already in use in an alcohol-sensing bracelet, such as one worn by actress Lindsay Lohan.

"It detects through sweat that is always coming out of your pores, even when you can’t feel it, the legal limit of alcohol," Schumer said. "And when she was over it, it would go beep beep, and law enforcement would come get her."…  

A prominent DUI attorney from California , Lawrence Taylor (no, not that LT) has observed “[c]lever, except….uh, what about gloves?” Well, I know from experience when I’m on the treadmill at my gym, those heart rate sensors won’t work if I’m wearing workout gloves. So I imagine it’s wouldn’t be too difficult to design steering wheels to detect for whether or not the driver is actually gripping the wheel with her bare hands. Nor does it seem that one could get around this by having someone else hold the wheel while starting, as the wheel could certainly be designed to continuously detect while the vehicle is in operation.

The question remains, however – would this prevent a vehicle from starting when detecting any alcohol at all? Or would it be sensitive to levels (ie, .08)? Its not illegal to drink and drive, after all – but only when one’s ability to drive is impaired by alcohol (or drugs), or one’s blood alcohol level is at or above .08. Is this a “real chance for a tremendous breakthrough,” as Sen. Schumer suggests?  Or is it, as Mr. Taylor asserts, “ a perfect example of the idiocy of MADD’s holy crusade?”

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July 06, 2010

Ignition Interlock Device (IID) License Application Requirement

Posted By Park Chenaur

I recently had a case where a client was sentenced for DUI (as a result of the agreement another DUI charge against him was dismissed). As part of the sentence the judge ordered him to "apply for the IID (Ignition Interlock Device) License within 30 days." This struck me as odd, since IID requirements have always been the domain of the DOL.

After researching the issue more thoroughly, I came upon some rather curious findings. At sentencing for DUI the judge is in fact required by law to order the client to apply for the IID license within 30 days (he who knowlingly violates sentencing conditions risks additional jail time). To apply, a person must include a non-refundable $100 application fee.

In order to qualify for an IID license, one must have proof of SR-22 insurance, must have the IID itself installed, and must have proof of both at the time he applies (within 30 days of sentencing). If he does not he loses his $100. He can certainly apply again down the line, but he'll have to pay another $100.

There is an "exception" to this requirement. In the event that the defendant does not qualify (for instance, he no longer has a car) the judge can waive the application requirement but must then order the defendant to submit to alcohol monitoring at his own expense. It would, of course, make more financial sense for that person to simply pay the $100 fee and be done with it; after all, he would have then met everything required of him at sentencing since there is no requirement that he actually obtain the IID. But what's fair about that?

Consider the following. At sentencing for DUI a judge is not required to impose a condition of alcohol abstinence; in fact a first time DUI offender often faces no such condition. Yet the DOL requires that same judge to order that same person to either apply for the IID license, or (if waived) to undergo alcohol monitoring for the period he would have been required to have the IID license. So a defendant who is not prohibited from consuming alcohol is forced to pay for alcohol monitoring? How ridiculous is this?

This arbitrary and pointless requirement by the DOL that a person apply for an IID license within 30 days of sentencing (with a $100 non-refundable fee), regardless of whether or not they are eligible, serves no purpose but to line the pockets of the DOL. Simply take away this requirement and all else remains the same -  a defendant still cannot drive without a license, still must obtain the IID license if he wants to drive while suspended, and if he does drive without a license (and IID if required) he can still be charged with a crime. These safeguards reasonably ensure that someone convicted a DUI, and whose license is suspended as a result, not drive any vehicle without an IID installed. If one can't afford high risk insurance or no longer has a car, one cannot qualify for the license. What if they simply choose not to drive? Why does the

DOL require that one apply for something that he has no hope of obtaining? Why does our Legislature allow them to? How long will we allow them to?

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