SR-22 InsuranceIf a person's license is suspended as a result of DUI or Physical Control conviction or suspension resulting from an administrative hearing, it will be necessary for his or her insurance company to file proof of insurance (SR-22) with the Department of Licensing before his or her license will be reinstated.Ignition Interlock Device
A conviction for DUI and/or Physical Control, and some convictions for reckless Driving and NEgligent Driving in the FIrst Degree will result in a requirement that a driver not operate a motor vehicle without a functioning ignition interlock deveice. An ignition interlock device is an instrument that a driver blows into before he or she can start their vehicle. They will only be able to start their vehicle if their breath alcohol content reading is under .025.
Scheduling a HearingBecause the arrest triggers specific time requirements with regard to requesting a hearing to challenge the Department of Licensing Administrative Suspension, often the first thing that must be addressed following a Driving Under the Influence or Physical Control arrest is the scheduling a Department of Licensing Implied Consent Hearing. As such, a person who has been arrested should speak to an attorney as soon as possible for assistance in scheduling this hearing.The arresting officer should have punched a hole in the driver's license of the arrested person and provide him or her with a form to request a hearing. To request a hearing the person completes the top of the form and sends it to the DOL along with a fee or a waiver of fee based upon indigency. These forms are also avaiable on-line. Again, be aware that there is a very limited window of time of following the arrest to request this hearing.If a person fails to timely request this hearing, he or she will lose the right to challenge any DOL action to administratively suspend your license.The arrested person is also expected to cut off the bottom portion of the form and carry it with his or her driver's license. This serves as a temporary license and is valid for a limited number of days from the date of arrest, or until the DOL reaches a decision following a hearing if one is requested.If the arresting officer fails to punch a hole in an arrested person's license and/or provide him or her with the hearing request form, it is still likely that their license is in a temporary status and valid only for a limited number of days. It is also still likely that the person must request a hearing with the Department of Licensing to avoid an administrative suspension. Either way, it is important to speak with an attorney about protecting your driver’s license.Once the DOL receives the hearing request, the case is assigned to a hearing officer and a hearing date will be set. The person requesting the hearing, or his or her attorney, will receive a copy of the police report from the Department of Licensing. A hearing date will be set within sixty days of your arrest. In some cases, your hearing may be continued for strategic or other purposes. To accommodate such continuances, the temporary license can remain in effect for up to 150 days, or until the hearing examiner reaches his or her decision.At the HearingThe administrative hearing itself will generally consist of a phone hearing conducted by the assigned hearing officer. The arresting officer may be subpoenaed for this hearing.These hearings differ from criminal trials because unlike a prosecutor in a criminal case who must prove guilt “beyond a reasonable doubt,” the DOL only has to prove its issues by “a preponderance of the evidence.”The issues to be decided are set forth on the hearing request form and are as follows:1. Whether you were under arrest.2. Whether an officer had reasonable grounds to believe you had been driving or were in actual physical control of a motor vehicle in this state while under the influence of intoxicating liquor or any drug, or whether an officer had reasonable grounds to believe you had been driving or were in actual physical control of a motor vehicle within this state while having alcohol in your system of .02 or more and were under the age of twenty-one, her you were under lawful arrest.3. Whether you were advised of your rights and warnings as required by RCW 46.20.308(2).4. Whether you refused to submit to the test, or if the test was administered, whether the test indicated an alcohol concentration of 0.08 or more if you were age twenty-one or over, or 0.02 or more if you were under twenty-one.Following the HearingThe hearing officer may either immediately issue a ruling, or he or she may take the case under advisement. If the ruling is in favor of the driver, there is no license suspension. Where the ruling is in favor of the Department of Licensing, there is an Administrative License Suspension consistent with R.C.W. 46.20.3101. The person whose license has been suspended has four options:1. Appeal the finding. You have 30 days from the date of the hearing officer's decision to file an appeal in the superior court. As a general rule, the suspension remains in effect during the appeal process.2. Not Drive. You may simply choose not to drive. This is, of course, always an option and, for some, based upon their individual circumstances, may make sense.2. Obtain an Ignition Interlock License. There is a strong chance that you will be eligible for an ignition interlock license (IIL) which allows you to drive during the period of the suspension.To obtain an IIL be required to have your vehicle equipped with an ignition interlock device (IID) and obtain SR-22 insurance, but once those conditions were met and the DOL approves your IIL application, you will be eligible to drive during the period of suspension.The IIL is not currently available to those who appeal the hearing officer's ruling.3. Deferred Prosecution. If you are considering petitioning the court for a Deferred Prosecution, you may have the suspension stayed until the time that the court officially grants your deferred prosecution.
For instance, was the driver stopped for weaving, bad tabs, a defective license plate light?Bad tabs and a defective license plate light are, obviously, not indicative of impaired driving. There may also be explanations for weaving or lane travel other than intoxication.
Odor of Intoxicants - Most experts and officer's will testify that an odor of alcohol is consistent with someone having consumed alcohol, but not necessarily intoxication.Bloodshot Watery Eyes - Possibly indicative of intoxication, but also could simply mean that a driver is tired, upset (he or she has, after all, just been pulled over by the police), or numerous other explanations.Slurred Speech- Slurred speech can mean a lot of things, but it does not necessarily mean that a person is intoxicated. Also, it is a rare occasion where an officer can testify that he or she has any knowledge of an arrested person's speech independent of the night of the arrest. An experienced defense counsel's cross-examination of the officer on this latter point might look something like this:
Defense Counsel: Officer, you have testified that Mr. Jones had slurred speech, correct?Officer: That's correct.Defense Counsel: However, you have no knowledge of the way Mr. Jones speaks independent of the arrest, correct?Officer: That is correct.Defense Counsel: So what you observed that night may just be the way that Mr. Jones speaks?Officer: I guess that's true.
Coordination - The arresting officer might note that the the person that has been arrested walked with a sway, or stumbled.An experienced DUI defense attorney will emphasize what was done well. For instance, was the arrested person produce his or her license without difficulty? (Law enforcement is trained that the production of a driver's license is indicative of good finger dexterity, which is inconsistent with intoxication) Or, was the arrested person able to get out of his or her vehicle without having to use the door to to stabilize himself or herself?Attitude - The arresting officer will note if the arrested person has mood swings, or was inappropriately rude. Some judges limit this testimony, noting that it is not unlawful not to like the police, or the judge may rule that the probative value of an arrested person being rude, is outweighed by its prejudicial effect.
Portable Breath Test (PBT) - as a general rule this test is not admissible at any trial. However, where done appropriately, it can be used by an officer to establish probable cause to arrest.
Horizontal Gaze Nystagmus- Law enforcement has been trained that people who are under the influence of alcohol or drugs will display an involuntary jerking movement in their eyes when following an object/stimulus. The Horizontal Gaze Nystagmus test (HGN) is an attempt to prove that a person has consumed alcohol/drugs and/or impairment by showing that this involuntary jerking movement exists in a person who has been arrested for DUI.In this test the officer most often uses his or her finger, or a pen, as a stimulus to check the arrested person’s eye movements. The officer asks the suspected DUI driver to follow the stimulus with his or her eyes as it is moved it back and forth in a horizontal and/or vertical manner while the officer checks for the involuntary jerking movement.An experienced DUI lawyer will try to suppress any reference to the HGN test. Where this is not possible he or she will work to limit the tests admissibility to the issue of whether the DUI suspect consumed alcohol, and not whether he or she is impaired.It is also important that a defendant advise his or her lawyer of any neurological conditions or head injuries as these can also effect nystagmus. Additionally, an experienced DUI attorney will note that unlike the HGN is more complex then the other field tests, and almost appears to have the qualities of a medical examination, and the police are not doctors. An experienced DUI lawyer will also note mistakes between the way the law enforcement was trained to administer the test, and the way that the test was actually performed.Walk the Line- The Walk and Turn is a divided attention test. This means that the investigating officer is not only judging the suspected DUI driver’s ability to perform the walking and turning, but also his or her ability to follow the directions.When performing the test, the suspected DUI driver is instructed to take a certain number of steps heel-to-toe along a straight line. He or she is instructed to then turn and take a certain number of steps back down the line heel-to-toe. It’s almost never ten steps, and sometimes it’s a different number of steps down then back. The reason for this is simple, the officer wants to see whether the person performing the test remembers the number of steps he or she has been instructed to take.During the actual test the officer has been trained to evaluate the suspected DUI driver on eight “indicators”:•Cannot keep balance while listening to instructions•Starts before instructions are finished•Stops to regain balance while walking•Fails to touch heel-to-toe•Loses balance while walking/steps off line•Uses arms for balance•Does not perform turn correctly•Takes the incorrect number of stepsAn experienced DUI lawyer will challenge the the officer's interpretation of the suspected DUI driver's performance on this test. He or she may emphasize those things that were done correctly (i.e., correct number of steps, only stepped off line twice in 18 steps, etc.), while also noting the conditions under which the test was performed (alongside a freeway, in high heels, in the dark, with the only lighting being provided by the patrol cars emergency lights, etc.), and that other things affect a persons balance, and this is especially true under the circumstances presented by a DUI investigation.One-Leg Stand- The one-leg raise test is also considered a divided attention test. For this test the officer directs the suspected DUI driver to raise one foot off the ground (typically about six inches), while counting aloud by thousands (typically to 30), or the suspected driver might be asked to estimate when he has been performing the test for 30 seconds.The officer is looking for four different indicators:•Sways while balancing•Uses arms to balance•Hops to maintain balance•Places foot downAgain, an experienced DUI lawyer will challenge the the officer's interpretation of the suspected DUI driver's performance on this test. He or she may emphasize those things that were done correctly, while also noting the conditions under which the test was performed, and that other things affect a persons balance, and this is especially true under the circumstances presented by a DUI investigation.
Other Field Tests - There are a number of other tests that law enforcement has used over the years to "test" sobriety. These include have a person recite the ABCs, The Romberg Balance Test (Which measures the sway of a person standing with his or her hands at their sides), The Finger to Nose Test, and the Finger Dexterity/Finger Counting Test.
These tests have become less common over recent years. However, where they are used, an experienced DUI lawyer should have the tools and training to challenge them.
Miranda Rights- Most people are familiar with the “Miranda” rights which provide that an officer must advise a person who is in custody as follows:
•You have the right to remain silent.•Anything you say may be used against you in a court of law.•You have the right to an attorney.•If you can’t afford an attorney, one will be appointed to you.
Once a DUI suspect person has been taken into custody, an officer must read him or her these rights before any questioning. If the officer fails to properly advise the defendant of the rights, the prosecutor will be barred from using any statements of the suspected DUI driver made as the result of “custodial interrogation.”An experienced DUI lawyer may request a Miranda hearing (CrRLJ 3.5) where the prosecutor will be required to establish that the Miranda rights were read to properly, understood and waived. To show this, the prosecution must show that any waiver of the Miranda rights was:
The point where a DUI suspect is “in custody” is critical to a Miranda issue in a DUI case. This is because, Miranda rights only apply where a person is in custody. Prior to a person being taken into custody, or the officer forming probable cause to arrest for DUI, the Miranda is not necessary and the officer is allowed to ask questions. Furthermore, Miranda only applies to statements that are the result of questioning and/or words or actions by the law enforcement that they should know are likely to elicit an incriminating response.Standard Thirty Questions- to assist in conducting a DUI investigation the arresting officer has a DUI packet which includes a list of questions to ask the arrested DUI suspect. These questions are often asked just prior to the breath test. The questions range from limiting potential defenses: Is there anything wrong with your motor vehicle? How many hours of sleep did you have last night To determining awareness of circumstances: What road were you on when stopped? What time is it? To getting admissions: How much have you had to drink? Do you feel that your driving was appreciably affected by your alcohol consumption?Sometimes a DUI suspects answers are helpful to the defense. For instance, when the officer asks for the time, he does so not because he wants to know what time it is, but because of a belief that a person who is under the influence will have lost track of time. If a suspect gives the correct answer, an experienced DUI lawyer will argue that it is evidence, gathered by law enforcement, indicative of a person who is not intoxicated.However, often a suspected DUI driver's answers are harmful to his or her case. Under these circumstances an experienced DUI lawyer will work to suppress the statements and/or limit their impact.Other Questions and/or Statements- A suspected DUI suspect typically makes statements other than those that are responses to the DUI packet. These statements can occur as the result of questioning by the officer, which can be both custodial and non-custodial, or statements that are made extemporaneously. For instance, very early in the investigation the officer is likely to ask whether a suspected DUI driver has been drinking. An experienced DUI lawyer has, no doubt, seen responses to this question ranging from a denial (which will require an explanation as to why the suspect has alcohol on his breath), to one or two beers (the most common answers), to "yeah officer, I've had a lot to drink, you saved a whole bunch of lives by getting me off the road tonight." An experienced DUI lawyer should know how to handle any of these statements in negotiations, motions and trial.
The Breath / Blood TestThere are two types of breath tests which a DUI suspect might encounter. Preliminary Breath Tests are administered by the investigating officer prior to arrest and are intended to assist with his or her decision on whether there is enough probable cause to make an arrest. Evidentiary Breath Tests are administered at the station and the results are admissible against in a court to establish guilt. Blood tests, like evidentiary breath tests, are admissible to establish guilt.
- The Preliminary or Portable Breath Test - The Preliminary Breath Test or Portable Breath Test is a handheld device used by law enforcement in the field. These machines typically have an LCD readout. In Washington State, the Preliminary Breath Test results are not admissible into evidence at trial.
- The Evidentiary Breath Test - As a general rule the most damaging evidence in a DUI defense is the breath or blood test. For the approximately the last thirty years law enforcement in Washington State has relied upon one of two types of machines to administer the evidentiary breath test, the DataMaster and the DataMaster CDM. In 2014, the Washington State Patrol announced that the Datamaster machines would slowly be replaced by the Draeger 9510. Regardless as to which machine is used, there are specific procedures that must be met before any breath test results can be used as evidence against a DUI defendant. An experienced DUI attorney will know how to challenge these test where they are not administered properly. Furthermore, even where the proper procedures are followed, it is still possible to present a strong defense defense by challenging the accuracy and/or reliability of the results.
- The BAC Verifier Datamaster - The Datamaster and Datamaster CDM have been the primary breath test machines used in the state of Washington for approximately thirty years. These machines are now so old that the manufacturer no longer provides customer support or parts to the Washington State Patrol. As such, when a machine needs repair, the State Patrol must use parts from other Datamasters that are not in use.
- The Datamaster is an infrared breath testing device. The DUI suspect blows into the machine and a sample of his or her breath is captured in a “sample chamber.” If the suspect has consumed alcohol, the sample contains not only air, but it also alcohol molecules. A light is projected through the sample chamber and is detected by a photocell detector. Any alcohol molecules will absorb some of the light, so not all of the light will reach the detector. The machine then calculates the difference between how much light reaches the photocell when there is nothing in the sample chamber and how much light reaches the photocell with the DUI suspect’s breath in the sample chamber.
without consent. Finally, as with other searches, law enforcement may be able to require a blood test pursuant to a lawfully executed search warrant.
Blood test evidence can be complex, but, for an experienced DUI lawyer, blood test results are open to attack. These include problems with the manner in which the sample was collected, chain of custody issues and concerns with the preservation of the blood samples (Washington law requires that they be preserved in an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration).