Holiday Emphasis Patrol And New Year Begins With A Warning To “Drive Sober Or Get Pulled Over.”Jonathan Rands
It is 2013! Happy New year, and with the new year comes a new anti-DUI slogan of “Drive Sober Or Get Pulled Over,” and I am here to tell you that the “best DUI defense is to not Drink & Drive.” But how about 1 drink and then drive? After all, 1 drink won’t impact sobriety, right? 2 Drinks? The law is .08 so are you not sober at .08? Otherwise, what is the point of the .08 limit? My...
It is 2013! Happy New year, and with the new year comes a new anti-DUI slogan of "Drive Sober Or Get Pulled Over," and I am here to tell you that the best DUI defense is to not Drink & Drive.
But how about one drink and then drive? After all, one drink won’t impact sobriety, right? Two Drinks? The law is .08 so are you not sober at .08? Otherwise, what is the point of the .08 limit? My answer remains the same, the best defense is not drinking, (and post I-502, not smoking). Why? Because driving sober as suggested by the campaign will not save you from a DUI arrest should you be stopped. It works the same was way as the former campaign, of "Over the limit, Under Arrest." The limit in this state is .08 but people are arrested with blood alcohol levels far below this legal limit on a regular basis. For all intents and purposes, they are in fact "SOBER," yet, pulled over.
Also, it is against the Constitution to pull someone over because you believe they may not be sober. What I mean is, an officer cannot pull you over because he thinks you may be DUI based on time of night, or what establishment you are leaving, or for any other hunches, rather the officer must first have a legal reason for stopping a vehicle.
Article I, section 7: The Protection of Private Affairs?
Recently, the legality, if you will, of vehicle stops was reviewed by the State Supreme Court in a case where the stop could have been conducted because of a loud exhaust in violation of the muffler statute, but instead the officer stated that that while the exhaust was an issue, his primary concern was whether the driver was DUI. On appeal, the Appellant court dismissed the case because the “primary” motivation of the officer was to determine DUI, rather than enforce the motor vehicle code. The Supreme Court reversed the Appellant Court with the following analyses:
Article I, section 7 of the Washington State Constitution protects the “private affairs” of each person from disturbance imposed without “authority of law.” Under article I, section 7, the right to privacy is broad, and the circumstances under which that right may be disturbed are limited. Article I, section 7 is “not grounded in notions of reasonableness” as is the Fourth Amendment. Instead, article I, section 7 is grounded in a broad right to privacy and the need for legal authorization in order to disturb that right. Warrantless traffic stops are constitutional under article I, section 7 as investigative stops, but only if based upon at least a reasonable articulable suspicion of either criminal activity or a traffic infraction, and only if reasonably limited in scope. The use of traffic stops must remain limited and must not encroach upon the right to privacy except as is reasonably necessary to promote traffic safety and to protect the general welfare through the enforcement of traffic regulations and criminal laws. Although traffic stops are legally authorized for the investigation of traffic infractions or criminal activity, each such investigative stop must be justified at its inception and must be reasonably limited in scope — based on whatever reasonable suspicions legally justified the stop in the first place. A pretextual traffic stop occurs when a police officer relies on some legal authorization as “a mere pretext to dispense with [a] warrant when the true reason for the seizure is not exempt from the warrant requirement.” Because the right to privacy in such cases is disturbed without reasonable necessity and only in furtherance of some illegitimate purpose, pretextual stops “are seizures absent the ‘authority of law’” required by article I, section 7. Id. (quoting Const. art. I, § 7). A pretextual traffic stop violates article I, section 7 because it represents an abuse of a police officer’s wide discretion in determining the reasonable necessity of a traffic stop in a given case. It is commonly accepted that full enforcement of traffic and criminal laws by police officers is both impossible and undesirable. Given the complicated nature of police work and the regulation of traffic in particular, police must exercise discretion in determining which traffic infractions require police attention and enforcement efforts. Yet in a pretextual traffic stop, a police officer has not properly determined that the stop is reasonably necessary in order to address any traffic infractions for which the officer has a reasonable articulable suspicion; instead, the traffic stop is desired because of some other (constitutionally infirm) reason — such as a mere hunch regarding other criminal activity or another traffic infraction — or due to bias against the suspect, whether explicit or implicit. A pretextual stop thus disturbs private affairs without valid justification and is unconstitutional. A trial court’s consideration of a challenge to an allegedly pretextual traffic stop should remain direct and straightforward. The trial court should consider both subjective intent and objective circumstances in order to determine whether the police officer actually exercised discretion appropriately. The trial court’s inquiry should be limited to whether investigation of criminal activity or a traffic infraction (or multiple infractions), for which the officer had a reasonable articulable suspicion, was an actual, conscious, and independent cause of the traffic stop. The presence of illegitimate reasons for the stop often will be relevant to that inquiry, but the focus must remain on the alleged legitimate reason for the stop and whether it was an actual, conscious, and independent cause.
So, the law remains unchanged in the wake of this case, but on its face, the ruling appears to be unfairly balanced in favor of the officer because all s/he has to do is say they saw “XYZ” and it was a violation of the code, regardless of whether it actually happened.
Stopping a vehicle for a speed violation where no radar is used, nor preserved, nor a ticket issued is among one of the better examples that highlight the potential for police abuse of power in their eagerness to increase DUI arrest statistics. So, the new slogan is misleading in the sense that you cannot be “pulled over on suspicion of not being sober.” Rather, the stop has to be for an actual law violation and then the stop of the car transitions into a DUI investigation based upon what the offer sees, smells, hears, etc., upon making the initial contact with the driver.
The important point here is this: is DUI law enforcement important? Absolutely. But is the enforcement of DUI laws (or any law for that matter) at the expense of, or to the point of abandoning or infringing upon citizens rights to do so? NO.
The Constitutional and the court’s interpretation and application of your right to be let alone and free from government interference has always been applied in your favor. Is anyone in favor of DUI? I doubt it very much, but the rule of law still applies and so a slogan such as “drive sober or get pulled over” is as much of a warning as it is a foreshadowing of unlawful behavior by officers of the law if not intentionally, then by way of exuberance in DUI “detection.” Below is a copy of the local press release on the new campaign:
The Washington Traffic Safety Commission announced its “Drive Sober or Get Pulled Over” campaign – a joint effort by local and state law enforcement agencies, the Washington Traffic Safety Commission (WTSC) and the Whatcom County Safety Task Force to reduce drunk driving over the holidays and into the new year. The media campaign has stated in various literature that the costs of a DUI conviction are severe in Washington, where a driver is considered under the influence if he or she has a blood-alcohol content (BAC) of .08 percent or higher. The minimum penalty for a first offender includes: $823 in fines, $1,000 to install an ignition interlock on the offender’s vehicle, one night in jail, a 90-day license suspension, and a year of alcohol evaluation and treatment, not to mention legal fees, a $150 reissue fee and higher insurance rates. The fines and penalties go up for repeat offenders or those with a BAC higher than 0.15 percent. Even those who refuse to take a breath test automatically lose their license for a year and pay a minimum of $350.
Again, some of what is written is true, but far from “accurate.” If the limit truly is .08 for age 21 or over driver’s then why so many arrests, and then breath tests results under a .08, and then DUI prosecution? Consider this breath test log from January 1, 2012 through December 24, 2012. This is a breath test machine that is located at the jail and where the majority of Whatcom County DUI Arrested Driver’s are taken for testing. The test information is to be read from Left to Right. Pay attention to the Date Of Birth (DOB) of the subject and the 2 columns labeled BrAC1 and BrAC 2 as these are the results of the breath test given. As it can be seen, there are numerous breath samples for people under the limit, therefore, presumed “sober,” yet being prosecuted for DUI. As a result, take my advice, if you want to avoid a DUI arrest and prosecution, simply do not drink and drive, but considering it is legal to drink and drive up to .08, but not beyond, and you find yourself stopped, and under suspicion for not being “sober,” remember your rights and remember I am at your service.