DUI & DWIClients’ ChoiceAward 2012-2019

Field Sobriety Test. It's a seizure, but is it also a search?

Field Sobriety Test. It's a seizure, but is it also a search?

Are field sobriety tests considered searches? What happens if the toxicologist who had a hand in the solution used during your breath test doesn't show up to testify in court? Can an officer watching a drug house stop and search you after seeing you enter an exit the house? DUI Attorney Jonathan Rands and KGMI's Dillon Honcoop discuss three recent cases that cover these questions. Listen to the podcast to hear the courts' decisions and how it might affect you.


Episode Transcript

Dillon
Well the courts have been busy, not just the local courts, they're always busy. Isn't that true? The courtrooms are always — wasn't there a shortage of judges for awhile?

Jonathan
Whether there's a shortage of judges or not, the courtrooms are always busy, yeah.

Dillon
But more specifically, the United States Supreme Court's been busy, of course we've been covering other decisions from them this week here the past week here on KGMI. Also here in Washington State some rulings. Joining us in studio right now – Jonathan Rands, the other voice here that you're hearing with us. He's local DUI attorney, defense attorney. And some cases that you've been following closely that haven't necessarily gotten as much press with some of the other big political decisions that have been released. And you told me that, before we came on the air you said, hey I want to talk about ... I can't even keep all the cases straight. You want to talk about all these cases. Forgive me, I'm already blanking out on what they all are, because they're all fairly complex.

Jonathan
Yes, good morning. There are four that, in the last two weeks, two from the United States Supreme Court and two from Washington State Supreme Court, I think we're only going to have time in half an hour to really talk about a portion of one.

Dillon
Right

Jonathan
But we'll try to get through two. And I think because state law is, you know, is more important on these issues, in this community for what I do, that's what I want to discuss a little bit today. The two cases from the United States Supreme Court are interesting though. Just in brief, one was analysis of the 4th amendment and the right to be let alone under the federal standard. And that's an analysis on reasonableness of the contact. And that particular case, I believe it was Utah vs Strieff, I believe was the last name. That's a really good, debatable, hotly contested case simply because it's about a contact that the Supreme Court said was a seizure, but not a lawful seizure, but because of what happened after the seizure it was in the interest of common good to find that theory of attenuation applied. Meaning yes, it was an unconstitutional seizure, but what happened after the fact sort of mitigated the badness of that. It was a drug case, essentially. So the Supreme Court of the United States turned around and said that we're going to say, yes, it's an unlawful seizure, but we're going to allow for it.

Dillon
So the cops basically had —

Jonathan
Contact with somebody and it was a seizure. So an officer was watching a drug house, saw a person go in, saw a person come out. And based upon that, walked up to the person and demanded identification. Now that's a seizure in any state. The question was, was it reasonable in the law. And the United States Supreme Court didn't clearly say it was unreasonable, they just said it was a seizure and it was not a justified one, which makes it unreasonable.

Dillon
Hmm, right.

Jonathan
But because upon learning the identification, the person had an active warrant and was then arrested, and then subsequent to that arrest searched, drugs were found. We now are doing the analysis backwards. Meaning that, it's sort of an ends justifies the means.

Dillon
Well, you could go out on the street and demand ID and search anybody, uh, kind of reverse Russian Roulette on, you know, eventually you're going to find somebody with a warrant, with a record, someone who's in the prises of committing a crime, whatever. Does that make that all right, then?

Jonathan
Not at all. I mean it's the equivalent to the Arizona immigration law a couple years ago, where anybody could be walked up to by a law enforcement officer and say I want to see citizenship or status papers for no reason at all. We just don't live in a country that that's ok. Blistering dissent on that from Stottlemeyer, basically saying that if we really go down this road, then the 4th amendment, the right to be let alone from unlawful search and seizure is going to become just a suggestion. Um, and so that's an interesting case, not in the world of DUI law specifically, but for everyone of the nation. Fortunately we live in a state where we have a 4th amendment right that is subject to lawfulness rather than reasonableness. So contact with citizens of Washington has to be done on a lawful basis rather than on a reasonableness basis. So a lot of United States Supreme Court cases are always addressing the 4th amendment or the federal constitutional, which is always a little bit of a different analysis than our Washington state, because the citizens of Washington have a constitution which is more protective. But in this particular case, we always consider the 4th amendment of United States Constitution the floor, and the floor has been drastically lowered for every other state that has a state that has a constitution that mimicks the language of the 4th amendment of the constitution, which means that it's an analysis of reasonableness. All of those states if that's your basic protection, then it's just been lowered a little bit, and it's really really unfortunate. But that's even more than I want to talk about that case.

Dillon
Next!

Jonathan
Because two weeks before that, on May 24, the Washington State Supreme Court, sorry, I misspoke. The Washington Court of Appeals Division 2. So Division 2 is, so we have an appeals system. Everything north of 90 and, well, north of where 90 cuts into 5, and then east, so the state is divided up north of that and to the, essentially to the mountains, that's Division 1. South of where 90 cuts into 5 —

Dillon
Which is us, Division 1

Jonathan
Yeah, Division 1. South of that to the bottom of the state, and again east to the mountains, that's Division 2. 

Dillon
Olympia, Centralia —

Jonathan
Yep, and then on the whole east side, Division 3 is what covers all of the Superior Court cases. So the Appeals Court is one court, but it's broken into 3 divisions to cover geographical information. Just because a decision comes out of one division or another doesn't make it any less binding on the lower courts. So Division 2 is still binding on Whatcom County Superior Court or District Court, and that's an important case. Or an important thing to note in Appeals Court decisions. Interestingly enough, if the three divisions ever disagree on a particular area of law, the that's what gets you an automatic review to the Supreme Court, which has binding precedent on everybody. So on the 24th the decision, last name Salgato-Mendoza, a very good, very interesting case specifically to DUI litigation. 

A little bit of background in terms of what makes this make sense is in breath testing cases, now as good as this case is, it's going to have very little impact with the switch in the breath testing machines. So before the switch in the breath testing machines, a breath test machine was a data master. A data master was a particular setup where the machine itself had an internal sample chamber for breath analysis, but there was an external standard. And this external standard was an alcohol solution that a solution is prepared in the Washington state toxicology lab. It's prepared in a 50 gallon drum, and then that solution is shipped out to all the breath test technicians that are responsible for all the breath testing machines. The solution needs to be switched every 60 days. And the solution is what the breath test machine checks itself against. Just so you know where this is going. And any given trial that involved the breath test, a toxicologist who had in a hand in, or test creating, or testing that external solution that is later shipped out, has to come in and testify about what they did, and how they tested that solution, and why that solution is a good solution. With me?

Dillon
It all has to do with the calibration and if this breath testing machine is calibrated correctly, so when somebody blows into it, it's giving an accurate, relatively accurate reading of the breath version of their blood alcohol content.

Jonathan
Well, it's a solution the machine self-checks against. That's probably the easiest way to put it. And that solution has to be changed every 60 days, and you make it in 50 gallon drums. That toxicologist is always necessary to come in and testify as to what they did. They usually also use that toxicologist's testimony to talk about the affects of alcohol, the general affects of alcohol, perhaps specific affects if they know anything about the person or given a hypothetical or things of that nature. State toxicology lab has a number of toxicologists. I don't even know the number off the top of my head. But in any given DUI case, usually somewhere between 8 and 15 have a hand in that solution. So depending on what batch it is, will depend on how many toxicologist ultimately tested it. They always had a state policy of at least 5 had to do, one creates, and at least 4 others had to test to make sure that the solution was in fact made or resulted in the standards that the recipe requires. 

Dillon
They got a lot of fussy rules, and understandably so, but wow, this gets complicated.

Jonathan
Well, that's just the background for you. So on any given DUI case, the rules require disclosure of an expert witness– name, information – basically you're supposed to give enough information for you to identify that person and if you want to interview them, if you want to learn about them, if you want to affectively cross-examine them on how well they do their job and how well they follow procedures and policies - the rule's there for a reason. 15 days before trial is what's necessary.

The prosecutor's office around the state, and I've tried cases in many different counties and this is the way it works, or used to be the way it works, before trial they'd give you a list of names. Here locally, it used to be three names. In Island County, I'd get four or five names. And the state would basically say, we don't really know who the lab's going to send, but we do is that these five people, or these three people, we're going to narrow it down to these three. What that means is that you have to try and prepare for three people that may or may not show up. And I say may or may not because I've had those three names before, I've objected to those three names before and the court has always said, you know, it's really not our problem, it's a staffing issue. We can't expect the prosecutor to tell us who exactly is going to come from an agency that they don't have any control over. And on the day of trial I'd get somebody that wasn't even listed on that name. Which means, the day of trial, a lot of courts and judges are famous for saying, we'll take a break and you can interview this person. We'll give you about 45 minutes to and hour. And you say to yourself, really. So in this particular case —

Dillon
So much for the 15 days that should be required

Jonathan
Right. So in this particular case, this happened. On the day of trial, three days before trial, the defense attorney moved to exclude the witness because they gave them three names and they still didn't have one. That was denied. On the day of trial, he again moved to exclude that witness because he didn't have time to prepare, and the remedy was one of two things: he could ask for a continuance and waive his client's speedy trial. The client said no, I have a right to a speedy trial; I don't want to waive it. And the court also said, if we do continue it, what's going to happen in the future. And the prosecutor said, we'll get three names and we'll disclose them, because they don't have any control. Ultimately, the Court of Appeals said, not good enough. That toxicologist should have been excluded, should not have been able to testify and here's why. How are we doing for time?

Dillon
We're doing good. We need to take a time out here in a couple minutes, but I want to finish up the gist of  what happened with this ruling.

Jonathan
They basically said that the prosecutor's office had some opportunities to comply with the disclosure rule. The last thing that a prosecutor's power is they can go to the judge and say, judge, the state toxicology lab isn't cooperating and they're only giving us three names. Defense council has a right to one name. We're asking you to issue a subpoena in the name of this person and basically force them to come to court. The prosecutor's office in this case didn't do that. Not a local prosecutor's office, by the way. It's a southern case. And that was the basis of the court's ruling. They said you had tools at your disposal, we have rules in place to give everybody or to give the defendant a fair trial and yes, you didn't abide by the 15 day rule, but you also didn't, when you realized you weren't going to get what you needed, you didn't get the court involved to help you abide by the rules. And that is why they remanded the case and basically said this case needs to take place again but no toxicologist testimony or since we're starting a new trial procedure, then ytou should make sure they have the right name. I believe that was the final ruling. That it was remanded for a new trial.

Dillon
Ultimately what difference will this make on the outcome of a DUI case though?

Jonathan
Here in this county, the only thing that it's going to make a difference on is a trial in any case where it's a breath test from the data master. Because the new breath testing machine —

Dillon
The Draeger

Jonathan
The Draeger, good memory, has an external gas standard. So it's a gas that comes in a pressurized tank that you plug in. So nobody prepares that like the toxicologist prepared that solution. It's a gas canister that comes from back east — Boston. And there is no human that needs to come in and basically say this is what —

Dillon
I think you should subpoena the person who loaded the gas canister in Boston. I think you should bring them in to testify.

Jonathan
Well, there's an interesting objection to allowing that testimony to come in by business certificate rather than a real person.

Dillon
Local DUI attorney Jonathan Rands is our guest here on the Legal Docket. This is KGMI News Talk 790. Quick time out. I always need to mention though, if you do want to reach Jonathan, because we just kind of hit the tip of the iceberg on some of these topics that we cover on the program — (360) 306-8136 is the number to reach Jonathan and his practice in Fairhaven. Again (360) 306-8136. His website is an excellent resource for you as well — jrandslaw.com. So check that out online. jrandslaw.com. Rands is spelled r-a-n-d-s. So jrandslaw.com. More on The Legal Docket straight ahead here on KGMI

--

Courts—high level courts making decisions that will make a difference .We're covering some of the details here this morning here on The Legal Docket. Dillon Honcoop with you here along with Jonathan Rands, local DUI attorney. You just got done telling us about a case that the higher courts in Washington — the State Court of Appeals said, nope, the lower courts didn't do it well enough. You need to go back and refigure how you're calling witnesses and these cases that involve a certain kind of breath testing and all that. You said there were four different cases. I think we've only touched on two of them so far.

Jonathan
We've touched on two of them and I want to go, we only have less than five minutes. Let's talk about another one called Meechum. Supreme Court decision that came out this week regarding field sobriety testing. Awhile ago, it was about a year ago we were talking about this one. The question becomes, the question for Meechum was when an officer pulls you over, when an officer asks you to do field sobriety tests, is that a search. Is performing these test a search, and if it is a search, if a person says no, I don't want to do those test can the state when the trial comes around, turn around and say the person didn't do these test because it's an admission of, or showing of consciousness of guilt, meaning they knew they were drunk, they knew they were going to fail field sobriety test and they said no thank you. So the whole question, or the whole import of this particular case is whether it's a search, and if it is a search is it then subject to a warrant requirement, which is you have to have a warrant, it's either voluntary, or you have an emergency situation. Now the question before the Supreme Court was, are they a search? It takes them a little while — how many pages — I've got the decision in front of me. This is a long decision, it's a written decision where we have four justices writing and saying one thing, yet all agreeing. Another four taking the opposite position, yet agreeing with each other of the four. And then a single justice writing on his own. And we don't seem to have a unanimous decision. It seems as though we have four against four and then a maverick one decision, so there's really no clear-cut answer. But the court, I mean the holding is field sobriety testing is not a search under article 1 section 7. So that's article 1 section 7 under Washington State Constitution, which adopts the fourth amendment that says you can only be searched subject to lawful warrant requirements, or an exception to it.

So they concluded that field sobriety testing is in fact a seizure. You're stopped by police. You're on the side of the road; you're not driving away; you're not free to go so it's a seizure. So the question is, is it now a search? And the, for lack of a better phrase, the decision or the analysis here really does expose the justices, and I use this in all respect, ignorance of what field sobriety testing really is. They break it down to a few maneuvers that are no more intricate than watching a person basically walk down the road. Yes, there's not a specific issue with the horizontal gaze and nystagmus, you're moving your eyes from left to right. But you don't see nystagmus unless you're placed in a very particular position and a very particular program or standardized procedure is followed.

The walk and turn test is a very prescribed manor of standing, listening, following instructions, and then a very specific turn and then following those instructions back. So they basically say that general expectations of privacy are much different than field sobriety testing because it takes place on the side of the road; it's not the same sort of searches searching an object or a document or electronic data. Publicly observable physical characteristics are always open. I mean you have a lessened expectation of privacy in a motor vehicle because you've got glass all around you. So they're basically saying it's not a protected search because it's no different than walking down the road. And as a result of that, they're also saying that when a person says no to these, even though there's no connection as to why the person says no, the state prosecutors and city prosecutors can turn around and assume consciousness of guilt. So the fix from the defense perspective on this is a person, I still think a person should refuse these tests, but refuse the test on the advice of an attorney, whether you heard me, whether you heard your cousin who's a judge or a prosecutor simply because— It doesn't change that, but the analysis is quirky. And I know that we gotta go, so I'll probably spend some more time on it next time.

Dillon
Meecham is that case. Local DUI attorney Jonathan Rands. I'm sorry we didn't have more time to get into more of these details — there's a lot to it. Field sobriety tests, there's a lot of people who are in that situation too.

Jonathan
Everybody that's stopped, yeah.

Dillon
Everybody that's stopped, whether they ultimately end up being arrested or not, so I'm sure the list is very long of the people who's been in that situation. What is the right thing there? Jonathan Rands is based in Fairhaven. That's where his practice is. (360) 306-8136 is the phone number. I'll repeat that in just a moment, but I also want to direct you to his website jrandslaw.com. Excellent award winning website with lots of great info. His last name Rands, spelled r-a-n-d-s. So jrandslaw, all one word, dot com. Check it out and as promised, the phone number one more time (360) 306-8136. Thanks for being here.

Jonathan
Thanks for having me.


Call now for your free consultation (360) 306-8136

“Jonathan, thank you for bringing the best possible outcome today in my case. It was a humbling and very sobering experience and I am mindful everyday of my personal responsibility and actions and those around me. My career has taken off and I’m glad to have this chapter behind me and will move onward past probation!”
Julie
A DUI Client