What is a 3.6 Hearing?

What is a 3.6 Hearing?

Motion hearings under Rule 3.6 are motions of a constitutional nature are typically seeking a remedy because of a Constitutional violation by a State actor. Let's explore those constitutional violations.


In follow-up with my last post about 3.5 I promised a 3.6 explanation. Formally CrRLJ / CrR 3.6.

Again, we call the hearing by the rule as it’s a short-hand way of lawyers and court staff to communicate. This rule requires a declaration to be filed as to the expected testimony to be given at the hearing. A 3.5 need not do this when filed. 

A 3.6 hearing is a vehicle for a defense lawyer to ask the court to rule on a Constitutional issue, and in the DUI world this means the lawyer is asking for a ruling on the legality of the stop of the person, often called a seizure, or a ruling on the arrest of the person, perhaps a challenge to the legality of the blood draw, as its subject area is search and seizure.

I often will seek a ruling on the time period between the stop of the vehicle and the request to get out of the car (police describe this as the Exit Order—as in an order to exit the vehicle) as the police are constrained in their escalation of a traffic infraction stop and escalating the purpose of the stop into a DUI investigation is Constitutional in nature also. Occasionally an attorney will seek to ask the court to suppress roadside testing under criminal rule 3.6, as that is a form of searching a person, but the Supreme Court has ruled on this issue numerous times and has deemed it a search but not one constrained by the Constitution. When I file a motion on these I challenge the method of the search vs the legality of it due to our Supreme Courts previous rulings. But I digress.

The typical 3.6 subject matter is a motion to dismiss the case. The issue is Constitutional in nature and thus the remedy for violations of this sort are dismissals. The is an "extraordinary" remedy but it's a violation of the most serious kind and thus the Supreme Courts have ruled/held that in order to prevent future violations the State actors, the police in criminal cases, need to know that they will not be allowed to violate the rights of citizens and still have the case prosecuted.

In the DUI world, our challenges here are to the stop/seizure of the driver, to the arrest of the driver, and to the legality of the blood draw. It's limited to these kinds of things because the Constitution protects us from search and seizure that is not in compliance with the law. In my recent blog post Fourth Amendment Right Reaffirmed By The United State Supreme Court (USSC), I discussed the issue of roadblocks and the difference in our State constitutions. In WA, before a driver can be seized, the seizure must be predicated upon an allegation of having violated the law—and not on reasonableness. So in WA that means a police officer has to have probable cause to believe that a law was violated. In the world of DUI that means a traffic law violation needs to be committed before the police officer has the legal authority to seize. As a reminder, this is because the 4th Amendment of The Washington State Constitution requires "authority of law," not "reasonableness."

Very few DUI cases begin with a stop of suspicion of DUI, that’s just not how it works. Rather most DUI arrests begin with a stop for a traffic violation — a lawful basis to contact a driver, the failure to follow the rules of the road. I will dedicate my next blog to this subject matter as there are two ways to avoid a DUI — don’t drink alcohol before driving, but also, be a better driver. Typical DUIs begin with poor driving habits:

  • Failure to use a signal before a turn or lane change;
  • A speed violation;
  • A wide turn, meaning failure to turn a corner and turn into the proper lane;
  • Expired Tabs;
  • Driving with wheels off the roadway — this is way of saying the tires crossed the fog line.

These are among the most "popular" reasons that police contact drivers, especially after 10PM and before 6AM. The less frequent scenarios that begin a DUI investigation is an accident—minor or serious—where the police arrive and speak with drivers, and suspect alcohol consumption.

These are all examples of where the police have a legal basis to contact you. That initial purpose can—and frequently does—lead to a DUI arrest if there is evidence of consumption of alcohol in any amount. If you can think of a traffic law that is thought to be violated then that’s the basis for the stop; that’s the authority of law required for a police officer to seize a driver. Rarely are people ever stopped for the actual suspicion of DUI, rather that suspicion is developed after the stop. However, sometimes people will be stopped for suspicion of a crime involving a motor vehicle which is more serious that an infraction—reckless driving for instance may be the basis of the seizure.

The 3.6 hearing is designed to challenge the basis for the stop. There are times when a police officer thinks something is an infraction when it's not. Several years ago in Skagit County I had a series of cases where a state trooper thought that it was unlawful to not use a signal when leaving a parking lot of a business. Frequently he would stake out a local bar, and when people left the parking lot and didn't use a signal he would stop them, then ultimately arrest for DUI. The law does not require a signal upon leaving a parking lot, and so I filed a 3.6 motion challenging the stop. The motion was granted and the cases were dismissed. The remedy of a Constitutional violation is what is called the most extraordinary remedy—dismissal. This is because the police are to be sent a message, that these rights—the right to be left alone, even in your car, the 4th Amendment Right, that protects us from Unlawful Search and Seizure—are so valuable that there must be an incentive to force the police to not violate these. Therefore DISMISSAL of the case. The trooper mentioned above learned his lesson, but he also learned it well enough to change his behavior such that he would still follow a person who didn’t signal, but wait for the inevitable series of traffic infractions, like a speed violation, or a wide turn, and the trooper would not stop the person until he has seen at least 2 so that if one was challenged, then the stop was held lawful for the other violation.

A 3.6 challenges the stop and the arrest, and the arrest is a little different because the facts to support a lawful arrest are somewhat in the eye of the beholder and the Supreme Court has not even created any bright lines to establish a lawful arrest. Rather, the consumption of alcohol alone can be sufficient to support a lawful arrest. Suffice it to say, a 3.6 hearing is a hearing where the officer comes to court, takes the stand, and explains under oath what they did and where they did it and is subject to cross examination. The issues are fairly limited to these two Constitutional issues.