2014 DUI Laws Year in ReviewJonathan Rands
2015! I’m a few days date in terms of discussing the New Year and the year in review but better late than never. Time is always of the essence because it feels like you need more, to finish that project or just make it to work on some days. Likewise it takes time to blog and write about the things that matter in my world. With that I will state that it is my new year’s goal to tell you all more about the rule of the law in the DUI world on a more regular basis. So with that promise and with no further delay let me review the busy world of DUI law that was 2014.
State v. Arndt
State v. Arndt, 179 Wn. App. 373, 320 P.3d 104 (Feb. 4, 2014) (Court Of Appeals -Div.2).
The Court of Appeals determined that prior Oregon DUI convictions are not comparable to Washington DUI convictions such that the conviction from that state could be used to increase the defendant’s sentence for a conviction here in WA. In this specific case the defendant was convicted of a felony and the sentencing court improperly added them to the felony offender score-this increased his mandatory sentence dramatically.
The Appeals court remanded the case back to the sentencing court to impose a sentence that was appropriate under the scoring scheme absent the Oregon state conviction information because although Oregon and Washington statutes contain the same elements, they lack legal comparability. This is because the courts interpret "under the influence" differently. Washington law requires proof that a person's actual ability to drive is affected, while the Oregon law requires a demonstration of an impairment of a person's mental or physical faculties with no reference to the person’s ability to drive.
Consequently, the facts required to convict an Oregon defendant would not necessarily result in a conviction in Washington. Oregon DUI convictions are, therefore, not legally comparable to Washington DUI convictions.
State v. Mecham
State v. Mecham, 181 Wn. App. 932, 331 P.3d 80 (June 23, 2014) (Court Of Appeals-Div. 1).
This decision below is currently at this time being reviewed by our State Supreme Court. Therefore this decision may not stand up under scrutiny.
A driver’s refusal to perform voluntary roadside field sobriety tests and the prosecutors sharing that fact with a jury during a DUI trial is not improper. While the refusal is one that is rightfully the drivers and traditionally the refusal is “protected” such that the prosecutor was believed by many Judges to not be permissible the Appeals Court determined that admitting the information does not penalize the defendant for exercising his or her constitutional right because a suspect has no constitutional right to refuse field sobriety tests. This reasoning is somewhat backwards and circular and flies in the face of longstanding rules. This is why the case is being reviewed and this is why I previously posted a harsh indictment of the Court of Appeals.
Once stopped and an investigation ensued for DUI Defendant, Mecham was asked to perform voluntary roadside test. They was a choice that could be made with no consequences. However, in the trial that followed the state by way of the prosecutor used that refusal against him as evidence of guilt. Consciousness of guilt. Meaning the despite there being numerous reasons for refusing the voluntary test the state said the only reason was because Mecham knew he was going to fail them because of intoxication.
The court's analysis has been criticized by defense attorneys, prosecutors, and judges alike. The phrase that comes to mind is a “train wreck” of jurisprudence. While the court correctly identified the right to refuse a search under the protection of article I, section 7 of our State Constitution and identifies the fact and law that the search of the person in terms of reasonableness is not a factor, it goes on to shockingly analyze the case under the concept of whether roadside sobriety is in fact an unreasonable search. The court failed to do a correct analysis that is, whether the tests as a warrantless search was lawful by way of some sort of exception. Under the Washington State Constitution a warrantless search can only be justified if there is a warrant for the search, an emergency such that there is no time of a warrant, or if the person gives consent to search.
The most twisted thing about this ruling was the fact and acknowledgment of the Court that the roadside field sobriety tests are in fact a search. Adding again to the baffling nature of the decision is that not too long before the case it was decided in the very same court in the non-dui case of Gauthier where the defendant refusal to consent to a DNA test and that refusal to allow a search without a warrant may not be used as evidence of guilt. Whenever a court issues such a confusing decision and/or when the decision is in stark contrast to what the previous case law body of work, the Supreme Court is required to take matters into their hands and issue a final word.
State v. Martines
State v. Martines, 182 Wn. App. 519, 331 P.3d 105 (July 21, 2014) (Court Of Appeals Division -.2I).
Another Appeals Court where the State Supreme Court needs to clarify. Extracting the blood of a driver suspected of DUI is a search. However, submitting that blood for analysis is a second search-a search within a search. As a result the original warrant for the extraction must go further than the traditional authorization for extraction and rest upon the implication of analysis to dictate the legality of the search in the form of blood analysis for drugs or alcohol or both.
This rule came about because an analysis of the sample is a search that is separate and distinct from the search of extracting it and since it will be analyzed, the person has a privacy interest that must be protected in the process of testing of a blood sample. By virtue of the search, bodily integrity and personal security interests are invaded by the physical penetration of the skin during extraction of the blood sample. This creates a scenario where hidden and highly sensitive, personal nature of any and all information contained in blood: the blood not only reveals levels of suspected intoxication, but can and may reveal other evidence of disease, ancestry, and pregnancy, to name but a few. Citizens, despite being suspected of a crime, are entitled to keeping this information that is not related to intoxication to be free, secure, and safe from governmental trespass.
The rule requiring a separate warrant, or a single warrant that contains specific language to address these concerns in the act of authorizing testing of the blood requires the State actors to clearly state with particularity what it wants to test. This will safeguard the privacy rights of the person and as the Court wrote “prevent the State from rummaging among the various items of information contained in a blood sample for evidence unrelated to drunk driving."
The decision was well written and well-reasoned, so the purpose of Supreme Court review is not as clear as the case of Mecham.
State v. Fedorov
State v. Fedorov, 335 P.3d 971 (Wash. Ct. App. Sept. 23, 2014) (Court Of Appeals Division-2)
In this case the issue was whether the fact that the police officer remained in the room when a DUI suspect invoked his right to speak with an attorney prior to making the decision to provide a breath sample. This was the defendant’s right.
The request for an attorney happened after the trooper had begun the mandatory “observation” period prior to breath testing. Because an officer typically begins this period immediately upon arrival to the breath testing room it is not uncommon for the request to interrupt this period. An officer concerned with time-time that they believe is spent better than processing a DUI suspect will often remain in the room so as to not re-start the 15 minute period. In this case the attorney asked the trooper twice for complete privacy. A lawyer cannot obtain the necessary information to adequately advise a person if the person on the phone is not free to answer questions candidly-the answering of the attorney’s questions eliminates confidentiality because the officer hears the answers.
In this case, when asked to leave and provide privacy on 2 separate occasions the trooper did not leave the room. He stated that he could not observe Fedorov from outside the room and that would break the observation period (the other excuse that is given in these scenarios is that he did not trust the Defendant to not tamper with or attempt to break the breath test machine.) Rather than leave and provide the privacy the defendant was entitled to the offer merely walked to the other side of the room. A room that measured 27 feet by 19 feet.
The trial court correctly found that the trooper violated the right to confer privately with counsel, but did not suppress because the violation was not substantial enough to prejudice him.
The Appeals court affirmed the trial court's ruling that denied the suppression of evidence but in doing so found error in the trial court's finding that the Defendant had any right in the first place. The finding was that the rule requiring privacy was created by an inference based on the right to attorney access and therefore privacy. Further the Court opined that the right to counsel is not necessarily violated when an officer is present in the same room as the suspect. A violation depends on the circumstances of each case. The trooper was found to be credible in his statement, despite being in the same room with and there being no other noise or interference to drown out the conversation between lawyer and client, he did not hear the conversation.
State v. Goggin
State v. Goggin, (Court Of Appeals Division-3)
This case established a clear rule that really needed to no rule. An officer does not have to read a suspect the traditional implied consent warnings for blood if the officer receives a search warrant for a blood draw. Since the blood draw is using a different legal procedure, a warrant, there is no consent, implied or otherwise required. However, in not advising the defendant of the typical warnings of an implied consent there was no advisement that the person “had the right to an independent test of his/her choosing.”
The court reasoned that because the officer had a warrant for blood, he did not have to inform the driver of any of the traditional warnings including the right to additional testing of the blood. This case however, ignores the analysis of Morales – a case where the advisement was still necessary despite not having to read the traditional implied consent warnings because a serious injury had occurred to another-this at the time was an exception to the implied consent warnings.
However, the Appeals Court further reasoned that the driver, Mr. Goggin, was already mistakenly advised about the right to independent tests, and so a second reading and because it was a warrant draw of the blood, the lower court did not err in admitting the blood test results.
Although it appears as bad law based on bad facts, it is somewhat inconsequential at this stage because the legislature has now amended the implied consent statute requiring the language even in cases where a Judge has issued a search warrant for the blood draw.
State v. Quaale
State v. Quaale, Washington Supreme Court (Dec. 18, 2014)-No citation at time of posting.
One of the roadside field sobriety tests is something called Horizontal Gaze Nystagmus. It allows an office to determine if a driver has consumed alcohol. It is nothing more than smelling the odor or having a driver admit that they have consumed as a confirmatory test. Yet, most officers often step over the line in terms of this test. The rule has now been confirmed in this case from the State Supreme Court: “an officer may not testify that a DUI suspect was impaired to drive based solely on the results of an HGN test.” The test indicates alcohol consumption only and cannot establish impairment by itself.
In the DUI trial of Quaale the trooper performed an HGN test and when asked by the prosecutor, if, “in his opinion based on the HGN test alone, was Quaale's ability to operate a motor vehicle impaired?” The defense attorney properly objected but the trial Judge made an error of law when he overruled the objection and allowed the question and the answer: "Absolutely. There was no doubt he was impaired."
The Supreme Court wrote that the trooper's testimony was improper opinion testimony on guilt and reversed the conviction. Washington state evidence rules permit an opinion even when/if it embraces an ultimate issue to be decided by the trier of fact. However, there are limits to that and officers and other witnesses may not testify in a manner that casts an aura of scientific certainty, and cannot testify to a specific level of intoxicants. As a result of this troopers testimony (and the question posed him being improper and misconduct by the prosecutor) violated the rules and limitations they set. Although there was no mention of a number by the trooper "the conclusion that the defendant was impaired rests on the premise that the defendant consumed a sufficient level of intoxicants to be impaired."
This case as well as some others are clear examples of the government in its desire to win at all costs violates the rules-rules that are clear and unmistakable. The appeals process can be frustratingly slow and painful in terms of time, but when the rule of law is enforced it makes a difference in the lives of those accused of DUI.
State v. Huffman
State v. Huffman, (Washington State Court Of Appeals-Division 2. (Issued Dec. 22, 2014) No Citation Available At Time Of Post.
Often called Prado Part 2” because this case follows up the matter of Prado where the Appeals Court dismissed a DUI case for an unlawful stop because the driver quickly and without threat of harm, injury, or damage to another crossed a roadway line as he exited the freeway. The Prado case was used as an argument by many to seek dismissal on cases where a line of the roadway was crossed and a stop and DUI arrest ensued.
The Court in Huffman gave a final word on this: Crossing the centerline, regardless of how fleeting or brief, is a traffic infraction under RCW 46.61.100 and is a valid basis to stop a vehicle.
The difference in Prado from Huffman was the road line crossed: A trooper observed Huffman's vehicle touch the centerline three times, each time jerking back to the right side of the road. On the fourth occasion, the vehicle crossed the centerline by about a full tire width. The trooper stopped Huffman and a DUI investigation, arrest and trial ensued over the following months.
On appeal the court reviewed and distinguished Prado. In Prado, the driver momentarily crossed into exit lane for one second. This was deemed a non-infraction under RCW 46.61.140. This statute requires a vehicle to be driven within the lane lines "nearly as practicable." In the matter of Huffman, however, the centerline was crossed. This is different because the RCW 46.61.100 states that crossing the centerline, regardless of how brief is a violation.
In light of this case the legislature has seen fit to add some language to shore up any perceived wiggle room in regards to this centerline statute with the following proposed amendment:
(5) It is an affirmative defense to a violation of this section, which the driver must establish by a preponderance of the evidence, that the vehicle crossed into another lane as a result of an act, omission, or occurrence outside of the driver's immediate control and only to the minimum extent reasonably necessary under the circumstances.
If this language passes, it means the stop for the perceived infraction will withstand a challenge and the infraction ticket issued for this crossing of the line can be dismissed if the exception is shown but the basis of the stop will no longer be grounds for dismissal.
United States Supreme Court Case: Heien v. North Carolina
Unites States Supreme Court Case: Heien v. North Carolina, (Dec. 15, 2014).
An Officer following a vehicle noticed that only one of the vehicle's brake lights was working. He therefore stopped the car and a DUI investigation and arrest followed along with a trial and a loss. The driver challenged the matter all the way to the Supreme Court on the basis of his 4th Amendment right to be free from unreasonable search and seizure. Traditionally, the law did not recognize a mistake of law to be a reasonable basis for a stop of a vehicle.
The US Supreme Court acknowledged that even though the officer's understanding of the law was mistaken, the seizure of the driver was nonetheless, reasonable, and lawful because of how poorly worded North Carolina law on the subject is. The Highest Court in the land wrote, “the US Constitution will tolerate reasonable mistakes of law.” It’s a signal of things to come but unlikely in Washington state where the State Constitution, Article I, section 7 in this state will not tolerate any intrusion without the authority of law, reasonable or not.