DUI & DWIClients’ ChoiceAward 2012-2019

The Proposed DUI Law Changes for 2017

The Proposed DUI Law Changes for 2017

Once again, lawmakers have been at it — amending and adding to current Washington State DUI laws. Jonathan and Dillon discuss the proposed changes for 2017 in this double episode.


Episode Transcript

Intro
The Legal Docket with Dillon Honcoop on KGMI 790 and KGMI.com.

Dillon
Well guess what? They've changed the law again. Seems like every year we do this and this hour here on the legal docket, we have him for the full hour, local DUI attorney Jonathan Rands, going to focus.

Of course, they're talking about changing a lot of different laws. You're thinking, "Well of course, Dylan." Olympia is in session down in the state legislature. This is what they do. But we're talking specifically this hour about laws as they relate to DUI offenses etc., driving stuff, intoxicant stuff. That's kind of where those two intersect is your area of expertise Jonathan.

Jonathan
It's the stuff that my practice is made of.

Dillon
Yeah exactly. And people are quite familiar with that, I think, who listen to this program frequently. What are they messing with this time?

Jonathan
A whole bunch of things. Everything from when the tow truck driver that impounds a vehicle starts compensation, to, probably won't talk about it until the second half, proposing of the lower limit from a .08 to a .05. That one is—

Dillon
Of the legal blood alcohol content limit?

Jonathan
Yeah, the NTSB is actually pushing that every state needs to at least have this proposal, and, ideally, they'd like to see every state get down to a .05.

Dillon
Oh boy.

Jonathan
The politics behind it are interesting because they're really targeting social drinkers. They're right up front about that. The more interesting thing about that is who opposes it. It's not us. It's MADD. It's not criminal defense attorneys. It's Mothers Against Drunk Drive—

Dillon
Okay, we're gonna have to get into this in the second half. Let's save that one because we have a bunch of other stuff to talk about as well this hour. And, again, Jonathan Rands is local DUI attorney, his practice is in Fairhaven, and his website is JRandslaw.com. Rands is spelled R-A-N-D-S, by the way. Jrandslaw.com, so check him out online. If you need his phone number, 360-306-8136, 360-306-8136. So Jonathan, where do we start? I'm chomping at the bit, 'cause I've already got things on this. What they're gonna change the .08 limit, but there are other things—

Jonathan
That's dessert, Dillon.

Dillon
Okay. That's dessert. Alright, we'll get to it.

Jonathan
So what we have is a couple of bills that are designated by HB and a series of numbers, and the first couple of ... and I gave you these so that if you really want to, you're really interested in seeing what the actual text of the bill is you can just type it into Access Washington and you'll be able to see exactly what the proposal is. You can also follow these bills throughout the legislature in terms of first reading amendments and things like that.

And the first couple are kind of boring and then we have one called HB1614, which has a bunch of changes to various DUI laws. But we start with HB1037, which is kind of boring, but it's a bill that seeks to modify the mailing requirements of tow truck drivers when sending certain notification to legal and registered owners of vehicles that they've towed. It also is a bill that is proposing that the tow truck drivers not furnish to an insurance company, an abstract driving record of a registered tow truck driver. That's interesting to me because basically, it's a bill that keeps a tow truck driver's record away from an insurance company, which is strange to me because I'm not quite sure why they care so much. I mean, I think that it should be transparent if you're a tow truck driver and you have certain responsibilities. Why is there a bill afoot to keep your record from going to the insurance providers just like everybody else? So whether that's a good or a bad bill, it's just something to note.

I mean, there's a couple of bills in here that I don't really have much of an opinion on. I just noted in terms of—

Dillon
As it works right now, back to this would in DUI cases, this would really, this tow truck thing would really relate to impounding when someone is pulled over and arrested.

Jonathan
Well, there is a mandatory impound in Washington for somebody that's arrested. So, I think this bill has come about because the tow trucks group or drivers are such an integral part of DUI law, meaning as soon as an officer has decided he's going to place somebody under arrest, the first thing he does after that, making that decision, is he radios the dispatch that he needs the next rotational tow. So, the next person available, whatever company it is, it's out and hears that they'll basically say, "I'm on route."

Dillon
I like how you reach for that imaginary microphone up by your shoulder. That was nice. I had to share that with the listeners. It was good.

Jonathan
That's exactly what they do. So, I guess it's no real surprise that as you foray into the DUI arena, that you're gonna be subject to some scrutiny, some oversight, some bills. But where the idea comes from to not allow insurance companies to see a tow truck driver's operators record, is one of those things that makes me say, "Hmm." So we'll see what happens with that one. That's HB1037.

Another one regarding tow trucks is HB1218 and it modifies towing and impound provisions with regard to the termination of the towing fees. So right now, there's a statute that reads as follows: "Fees that are charged for the storage of a vehicle or for other items of personal property registered or titled with the department, must be calculated on a 24 hour basis and must be charged to the nearest 1/2 day from the time" ... and what's struck out is "from the time the vehicle arrived" and what's being replaced is "from the time the operator has unloaded the vehicle and completed the necessary paperwork at the secure storage area."

So, they could charge time before from pickup and arrival. Now, they're expanding that, I think, legitimately, to basically reflect the actual time spent from pickup. You don't just drive through the gate and do nothing, they unload it, they move it, they fill out the paperwork, and I imagine that takes somewhere between 15, 20 minutes, maybe a half an hour. So, it's basically a change that allows them to clock, or charge for that time. It's their time and it's probably perfectly legitimate. Again, it's one of these other tow truck fees or bills that are related to DUI law.

The next, the big bill is HB1614, and it covers so many different areas beginning with being able to vacate a DUI charge. A DUI charge or a DUI charge that's reduced to something that's considered a prior, and that means if a DUI is reduced to reckless driving, reckless endangerment or negligent driving, 1st degree, those are all charges, which, if they start out as a DUI and they resolve as that, they count as a prior meaning in the future, if a person is arrested for DUI again, even though their first DUI wasn't a conviction for it, the second DUI, if convicted, will be, because of the prior reduction, will act as if it were a first offense.

The current law says that you can vacate a misdemeanor conviction, which is what a DUI or any reduction is, after three years and certain conditions. One of those conditions in the DUI arena is that you can't remove a lesser, a negligent, a reckless driving or reckless endangerment unless the three years have elapsed, there's no pending criminal charges, and you've gone without an alcohol-related violation for ten years.

What some Judges have interpreted as that means well, ten years total including before the DUI charge. Other Judges have said, "It seems to me that we really don't want to vacate these charges until ten years has gone from the date of conviction and there is no alcohol-related violation after that, and so we have to wait ten years total from the date of conviction before we can vacate it. Not just three years." And because of that difference of opinion, if you will, there is now an express requirement that ten years has elapsed ... oh, sorry, a proposal ... an express requirement that ten years has elapsed since the arrest for the prior offense, meaning it's taken away any and all interpretation. It's basically going to say, "We mean this. When we say ten years, we mean you can't vacate anything that is considered a prior or a DUI for at least ten years and these conditions have to be abided by."

That is kind of a curious one to me. I don't understand it because even though your criminal record can be cleaned up and can be vacated, we, the vacation statue specifically says, "We'll still know about it." And for purposes of future sentencing or future court appearances, if they're alcohol-related, because we'll still know about it through your department of licensing record, and because we'll still know about it because we'll see this charge in the system was removed, we can still use it against you." And so why we want to really make it a longer waiting period for a person to fill out a job application and say I haven't been convicted, for purposes of a look back period, I don't know, I don't love it. I ... because there are still ways that you can find out if the person re-offends and that's really the whole-

Dillon
I think what you're pointing out there is what people don't think about. You just talked about applying for a job. And there are a lot of things like that. Oh well, if you're a convicted felon, for instance, a lot of people can't do things. Well, what good does that do if you continue to extend that on into longer and longer timeframes? The whole idea is to get somebody to turn things around, isn't it?

Jonathan
Well, that is an aim of the criminal justice system. That is rehabilitation.

Dillon
Right.

Jonathan
And this essentially prolongs that ability to do that because when you have a charge vacated, you are discharged from all obligations and responsibilities and you can legally say, I've never been convicted of a crime.

Which is kind of counterintuitive because it still exists. I mean, there's still information there. But by not being able to vacate for ten years when normally you can after three, it's an additional seven years that that person has had hypothetically, no other issues, but there's still that box on a job application. Have you ever been convicted of a crime? If yes, please explain.

Now, that's different than have you ever been convicted of a felony. But people are trying to find out more and more about their potential applicants and, I don't even see as often as I used to, that the box that says ... excluding criminal traffic, have you ever been convicted?

Dillon
Right.

Jonathan
Now it just says, "Have you ever been convicted of a crime?" So, I mean, I think that the goal is to not "hide" history for somebody in the next ten years because our statutes are seven years and ten years for DUI look backs. I understand that, but if you can still see it, if you explicitly acknowledge when you ask for a vacation of a charge that the Court can use this against you if you, in the next whatever the time period, meaning if you vacate after three, there's still a seven-year window where this could be used against you or a four year window where it can be used against you if it's not a felony DUI that's filed against you as well.

I just don't like the waiting period for purposes of expressly making something take longer when it doesn't need to because you have that information at your fingertips anyways.

Dillon
What you're saying here is you may vacate a sentence ultimately, if you've paid your debt to society, whether it's served your time, paid your fines, done all of that stuff, gone through the process, waited a certain amount of time, then you vacate your sentence. It's never totally gone.

Jonathan
No.

Dillon
There is record of that somewhere and eventually if you, say re-offend as they would say, and let's say you're convicted of DUI again, years later, that past DUI that was vacated, in this hypothetical scenario, is still there and would still ... 'cause they do different kinds of scores for sentencing, right?

Jonathan
Not in misdemeanor land. But it-

Dillon
That's only in felony.

Jonathan
That's correct. And, speaking of felonies, this is only a waiting period for DUI charges. There's no proposal to make any other misdemeanor any longer than three years. And actually, to vacate a felony, it takes less time than what's being proposed here. So, and a felony is a more serious consequence because you lose your firearms rights, and you lose your ability to vote, and you lose your ability, ultimately, to serve on a jury. So you have to have your civil rights restored.

It takes less time on a felony, and no one's proposing that it take a longer time, than it does in this particular scenario with a DUI. But, you're absolutely correct. If you vacate it, and if you're still within ten years from the date of the original conviction, you agree and you tell the Court and the Court says to you, "You realize that if something happens before the ten year anniversary, we'll know that you vacated, and it's possible that depending on what happens in the future, but if it's another DUI, we could potentially use this vacated crime that you paid your debt to against you for sentencing purposes. In the sense that they wouldn't necessarily treat you as a first-time offender and things of that nature.

Dillon
This is the Legal Docket here on KGMI. We've got to take a quick timeout. We have him with us for the full hour. We're keeping an eye on Olympia this morning, especially as it relates to DUI law. They do have some changes proposed down there and we're going over the details of what Olympia is up to and what some people have proposed down there to do to change the law. More coming up including later this hour, should the legal drinking limit, if you want to call it that, and if you've listened to me talk with Jonathan on this program before, you know there's so much more to it than that. But that .08 limit, should that be lowered to .05? That is one of these proposals out there. We will get to that coming up later this hour on the Legal Docket on KGMI News Talk 790. I'm your host Dillon Honcoop again with local DUI attorney Jonathan Rands who you can find at Jrandslaw.com or 360-306-8136. Stay with us.

Intro
The Legal Docket with Dillon Honcoop.

Breaking news: stimulating talk. This is KGMI and KTMI.com.

The Legal Docket with Dillon Honcoop on KGMI 790 and KGMI.com.

Dillon
Forgot to mention in our last segment, and we're talking with Jonathan Rands. He's a local DUI attorney here on the Legal Docket with us this morning. I forgot to mention that he has a blog on some of these proposals down in Olympia. That's what we're watching right now, is what is going on in Olympia. Of course, generally, people watching a lot of things, but specifically, Jonathan Rands here is keeping an eye on what changes they're proposing as it relates to DUI law. And we're getting in depth on this, this morning.

The blog that you have at JRandslaw.com, kind of covers this list of bills that you have your eye on?

Jonathan
Yeah. Not only have I listed the bill, but I've sort of embedded a hyperlink into it so it'll actually take you to the text of the bill.

Dillon
Oh, nice.

Jonathan
Yeah.

Dillon
I know it to be frustrating sometimes even though the system works way better than it used to, to be able to search a bill number and then see all kinds of info. about it and pull up all kinds of documents, but it still could be a little bit complicated sometimes.

Jonathan
And then I've given a little snippet under a header in terms of the change that's proposed. The next one, for instance, where there's a condition of release change being posed, meaning ... this is an interesting one, it doesn't affect us here in Whatcom County because in Whatcom County every DUI arrest, regardless of how many you've had or haven't had, you get booked into jail.

The proposal statewide is, and it seems appropriate, it basically says that if you have a pending DUI arrest, like if you have a pending case, if you have an open case, or if you're awaiting arraignment, meaning in King County, sometimes what'll happen is an arrest will happen, and even in Sonomish County, they'll take several weeks or months before they decide to file an arraignment, and formally charge you.

But the statute now says that when an officer knows that the person is charged or awaiting arraignment on another impaired driving charge, then it's a mandatory being mentor, booking into jail. Now, think about this. What it's saying is if you've got a DUI pending in the Court system, or you've already been arrested and you're awaiting arraignment, that means that you're probably in violation of conditions of release if you're arrested subsequently. Or you're somewhat careless because you haven't been before a Court but you know you've been arrested.

I guess there's not too much opposition. There's nothing that really says this is bad, other than you're booked into jail, you have to see a Judge, and so your freedom is being taken away without really a review of probable cause. But that's what the purpose of going in front of the Judge is for.

I guess if—

Dillon
What if you're wrongly accused though?

Jonathan
That's what the philosophical problem with it is. Now, in the DUI world, you have to be brought before a Judge or a commissioner within forty-eight hours or the next business day of being arrested. But nevertheless, if you're wrongfully accused, fast forward if the limit drops to a .05, and you are in compliance with the law as it turns out, because the arrest is based upon odor because the limit's so low, there's a situation where this could be problematic. But, we had this problem right now in Wakecom County anyways. If you're arrested for suspicion of DUI, you're booked into the jail regardless of whether you have one pending or not, which is why I don't think it's right.

I have a young client right now who is under even the minor limit and was booked into the jail. Ultimately, I think that, I think proof against him is very, very sparse, and, which case, if he's wrongly accused, he's spent eight, ten, 15 hours in jail already.

Dillon
Right.

Jonathan
It happens. Do we like it? No. But it's the response that the allegation of DUI gets quite routinely here and I think under second offense conditions, I don't know that there's a whole lot of people that would have any sort of philosophical sympathy for saying, "Yeah, that person should be allowed to continue driving around."

Dillon
Right.

Jonathan
The time limit of ignition interlock is proposed to be extended. I don't love this one because right now, if a person is convicted of DUI, and there's an order to abide by a DOL order to install and maintain an ignition interlock for as long as they require, traditionally it works like this: a first DUI conviction, a DOL will order you to have an IID for one year; second DUI conviction, they'll order you to have it for five years; third DUI conviction, they'll order to have it for ten years.

Let's just play with the first offense scenario. Even though you've been ordered to have it for a year, you cannot sit that period out. It used to be that if you decided that you just didn't want to drive, and you didn't want the time and the expense of the ignition interlock, you could just go a year without driving. You wouldn't give up your driver's license. What happened is you'd just wouldn't install an ignition interlock and therefore, your license wouldn't be reactivated upon proving that you've installed it.

Right now, the law is such that on any given order of one year or more, the last four months, you have to show compliance with the ignition interlock. They're proposing to extend that four months to 180 days, which is six months essentially. What this does is it really forces a person, if they want to get their license back, even though they decide not to drive during that whole year period, they still have to, if you don't own a car, rent or buy a car or get a car that you can then install an ignition interlock, simply to show compliance that you installed it in your vehicle.

Dillon
That's crazy. That's crazy.

Jonathan
What I don't like about that is there's no public safety thought here. If it's really an ignition interlock for purposes of public safety, but a person says I'm not gonna drive, isn't not driving a better way to have public safety?

Dillon
Yeah

Jonathan
Than to force a person to spend time and energy and expense on an ignition interlock. It's more of a, well I think that there's some monetary incentive for the lobbyist of the ignition interlock companies, but it's also kind of a scarlet letter-

Dillon
That's what I was gonna ask about, yeah.

Jonathan
Well, I mean it's also a scarlet letter. If you want to keep your business, your business and you want to just not drive because you don't want the time, the energy, the expense, and the embarrassment of that ignition interlock and you just say, "I'm on foot. I'm riding a bike. I'm riding the bus." That's admirable, I think and it avoids, well, the rolling blows there. If you've got kids, if you're maybe a driver for, as a commercial driver, you could certainly, you wouldn't be subject to this, but you would need the ignition interlock in your personal vehicle. I just don't like the lengthening of the time for purposes of no rationality to it whatsoever.

Dillon
Yeah. What's the reason for that? We've got to take a time out. It's time for news. We'll be back for more with Jonathan Rands, including will Washington State lower the legal limit for alcohol in your system for a DUI charge? Right now it's .08. People pretty familiar with that. They pushed that really hard as far as promoting what that number was and what the significance was. Now, there's a big push to lower that to .05. We'll talk about it with Jonathan Rands when we come back after the news here on the Legal Docket on KGMI News Talk 790.

Intro
The Legal Docket with Dillon Honcoop.

Dillon
Thanks for being with us this morning on KGMI News Talk 790. I'm Dillon Honcoop. Jonathan Rand's our guest this whole hour. Local DUI attorney, and I've been telling you, his website is Jrandslaw.com. He's got a blog up there now available with background info. on all the stuff we're talking about this morning. We're keeping an eye on Olympia, what Olympia is working on as far as new laws relating to DUI. Keep in mind, these laws, just because they're proposed, doesn't mean they will happen. They're just suggestions or ideas or proposals down in Olympia that have yet to be passed, right?

Jonathan
Correct. They do need discussions, debate, more importantly, they need a fiscal note, meaning they need money in order to pass some of them. So, it's not unusual for a bill to be proposed several years in a row until they fine-tune it and finish up all of the discussions about it and realize where they can get the money in order to do certain things. And to be honest with you, that is the biggest hurdle for adopting new laws or amending even old laws, is the financial note. We'll see what happens.

I want to skip over a couple that are not as important, and just focus on two because I want to get to the lowering of the legal limit. But there's two biggies afoot right now. And one is to ... proposal to change the defense of safely off the roadway. When a person's charged with physical control, which is essentially, a DUI except you're not actually driving down the road. If you're in a parking lot somewhere, if you're just not moving, you're ... but still in control of the vehicle, and investigated for being under the influence, that turns into a physical control charge.

There's a complete defense to physical control, and that is, if prior to being pursued by law enforcement, a person has removed the vehicle safely off the roadway, that is an affirmative defense. The statute's been around for years, but really what it does is it says to the person driving if you're driving down the road, and you say, "Huh, this isn't a good idea." And you remove the vehicle from the roadway and you get completely off the roadway, whether you go into a parking lot, a parking stall or you just get off the roadway, you really should not be convicted of physical control. You should be rewarded for making a poor decision but rectifying it before something happens, essentially.

Dillon
Right.

Jonathan
And now the safely off the roadway, they want to have a bunch of contingencies. So the proposed language is "The 'safely off the roadway defense' is defined as a vehicle that is safely off the roadway if the driver is removed from the driver's seat." So, even though you get safely off the roadway, you now have to leave the driver's seat because before you could just, as long as the vehicle was not easily moved, like people have passed out with their head on the steering wheel, foot on the brake, and the car in park. But now you have to remove yourself from the driver's seat, the vehicle is parked in an area that is not a sidewalk, bike path or driving lane, so, I guess for like downtown Seattle, where somebody might be driving down the road and say, "I've got to get off the road," and they jump the curb, partially somewhere-

Dillon
Well, wouldn't ... I have questions about this. Wouldn't that be safe, not safely off the road anyway?

Jonathan
It would not be.

Dillon
Doesn't that have to go without saying?

Jonathan
It does, but there's debate among jury instructions in these cases as to what safely off the roadway is.

Dillon
So they're trying to define it.

Jonathan
And there was a case not too long ago where a colleague was in that exact situation where they were trying to define what was the roadway. The person was not on the sidewalk, but the person was off the roadway, but the person was also sort of in a bike lane off to the edge of it. And so, which is interesting because a bike lane is defined as part of the roadway. It's not a fog line.

If this passes, it gives credibility to the argument I've always been making. When an officer pulls somebody over for crossing what they say, the fog line, when really in Bellingham, that's a bike lane if there's a bike number there. In which case, if you've driven over that, you haven't committed a traffic infraction. But that's a whole 'nother story.

Dillon
That isn't a lane violation?

Jonathan
It's not because a bike lane is part of the roadway. By changing this definition and removing the vehicle in an area that's not a bike lane, you would then, by definition, be off the roadway.

Or, and the vehicle's engine is off, and the vehicle transmission in park, or if a motorcycle, it's in gear, meaning not in neutral. Now they ... safely off the roadway has proposed that in really, really cold temperatures, not necessarily what we just went through, but let's say east of the mountains, where it's frequently snowy, you now have to pull your vehicle completely off the roadway, remove yourself from the driver's seat, turn it off, so you have no source of heat, and essentially be in the passenger seat or the backseat, and the car has to be in park or in manual transmission. You can't even use it for shelter anymore, which is now, if that's your choice, this is what I have to do, or I'm gonna forge on and try and get home—

Dillon
Right, and it's not such a good choice anymore.

Jonathan
It's a ... from a public policy standpoint, you no longer have an incentive to remove yourself from there. That's the proposal right there.

Lastly, before we get to the new limit, breath testing requirements. The breath testing requirements are that a person shall not have anything of foreign objects in their mouth at least 15 minutes prior to breath testing. However, dental work fixed or removable is okay because it's part of the oral cavity.

In recent times with oral piercings, this has posed a big problem because it says you have to remove all foreign objects as long as they're not dental equipment, right? And that's because you don't want removing braces or fillings—

Dillon
Right.

Jonathan
or bridges or things, right? But you always have had to not have a piercing. And the statute has said if a person does not want to remove the piercing, or they are unable to, they have deemed to have consented to a blood test. Now that's been complicated by the need for a warrant these days for a blood test, but it always invalidated a breath sample. And it's always invalidated a breath sample because it's a foreign object.

Well, they want to do away with that piercing requirement. It's no longer a foreign object. You can give a breath sample now with a piercing in. And some people say, "Well, why is that a bad idea?" Well, there is some research out there that when you have a piecing, you have the ability for mouth alcohol to accumulate in that area, most likely in a tongue piercing rather than a cheek or a lip.

Now, in order to get away from suppression of breath samples because a person had a piercing in and a lot of law officers were allowing this to happen, allowing breath samples to happen with the piercings, and the result would be an exclusion of that evidence. We don't want that to happen anymore apparently. So we're just going to say, "It doesn't matter anymore. We're just gonna write that out of the statute, that it no longer matters if you have a piercing when you give a breath sample."

Don't like that because it just sort of goes against the grain of everything that breath testing has ever stood for. They do say, "Studies have never shown that it ever affects it." But, if that's the case, then why have the prohibition in the first place?

Dillon
Right. Right.

Jonathan
And that's important because we're talking about a limit and what are we talking about next? Talking about the National Traffic Safety Board wanting to lower the limit from a .08 to a .05.

What are the problems with this? Well, first of all, is it necessary? If we're going to drop the limit, personally, just make it a zero tolerance. Don't go to a .05. Is there research out there that indicates that people begin to be affected? Some people begin to be affected by alcohol below a .05. There's lots of research out there for that. But alcohol affects everybody differently. At least with the .08 standard, it's universal and every single person, you start to see the effects of alcohol. That's at least a justifiable limit because universally we draw a line in the sand and it says, you may be at a .08, and not exhibiting the same degree of impairment as somebody else, but nevertheless—

Dillon
At that point you're at least having something.

Jonathan
Correct. That's not the case for .05. I came across this article, actually I came across a Facebook post before this article, which was talking about why MADD was against it. MADD, Mothers Against Drunk Driving—

Dillon
Is against this.

Jonathan
They are against the lowering of the limit. Well, actually what they say is we wouldn't oppose it, but we don't endorse it. We think there's better ways to combat or deal with DUI.

Dillon
You would think MADD, Mothers Against Drunk Driving, would be all over anything like this.

Jonathan
Well, think about the title. Are you drunk at a .05? And so can a company or can an agency who's against drunk driving, and they were very, very influential in lowering the .15 limit to a .08, because you're hard pressed to say that at a .15, you're not drunk. I mean, you're twice the limit that everybody's affected by. They came about in the age of actual drunk driving.

What we are talking about in our lifetime is being affected by alcohol or being impaired. And what I'm going to say is to the slightest degree—

Dillon
Well, if we [crosstalk...] but if you watch the PSA's on T.V., "Buzzed driving is drunk driving."

Jonathan
That's right. That's what they're saying, right? "Drive hammered, get nailed."

Dillon
Well, yeah. They've got all the sayings.

Jonathan
That's right. "Over the limit, under arrest."

Dillon
But, yeah.

Jonathan
I know them all.

Dillon
Sounds like you've paid attention to these before. But, seriously, is maybe this goes against that just based on even the science if we're gonna get down to brass tacks here, that buzzed driving isn't necessarily the same as drunk driving. Not saying that it's good at all, but that's really the difference we're that we're talking about here.

Jonathan
Buzzed driving, I would say would be experiencing an effect. And if our statute, and our statute clearly says this as is the jury instructions says, that if you are appreciably affected by alcohol, you are under the influence of it by definition.

Appreciably affected is defined as being able to be ascertained by any of the senses. So, yes. And admission that I'm feeling buzzed is an admission that you're feeling the effects, and you may not be over the limit. But you're still affected by it, and that's why Washington's two prong statute really makes a limit somewhat insignificant because they don't need a limit if the officer's opinion is that you're affected by or you happen to admit to the officer, and I've read this in police reports: Are you feeling the effects of alcohol at this time? Some people say no, some people say yes and some people say, "No, just a buzz."

Dillon
Oops. No, but yes.

Jonathan
Basically, yeah.

Dillon
I don't know, I'm thinking about this. There's a lot of semantics here with words and their meaning. What is the definition of "buzzed?" What's a colloquial term. Same with "drunk." "Drunk" is, there's no legal definition of drunk, is there? Or even scientific definition of "drunk."

Jonathan
No.

Dillon
That's why they can say "Buzzed driving is drunk driving" but they're reasonably appreciably affected or intoxicated or under the influence, all of these things become legal terms and have specific definitions, but they aren't exactly all the same either.

Jonathan
They also get associated with a limit. If we have, 'cause right now we have a .08 limit, and if you're over that, you're a drunk driver if convicted of that. If you are, if you're under the legal limit, the prosecution and the words used are framed as being affected by or being impaired by the alcohol that you've consumed.

We're moving away from literally drunk driving. We're in an area of impaired driving. And we've had this discussion numerous times. You don't need to be impaired by alcohol to be an impaired driver. You can be impaired by dozens of other things that go on-

Dillon
True.

Jonathan
In your daily life. The limit is really, or the proposed limit, is really a proposal to really grab or cast a wider net. It's interesting that it's not even in the name of public safety. The NTSB's recommendation they are quite up front about saying we're looking at social drinkers. We're looking to curb social drinking and driving, not people who drink heavy and often such as the one previously—

Dillon
But if it's a problem, if social drinking is causing people to go out and drive under the influence, again, to use a loaded legal term, is that bad that they are going after social drinking?

Jonathan
If it's legal to consume alcohol and drive a motor vehicle, and you do it responsibly, and you're not affected by alcohol, and they lower the limit to an 05, and you're on a regular basis a social drinker, under the legal limit, you're going to be affected by this. You're going to, and more importantly, is if the limit is lowered, what are you starting to look at to determine whether a person might be over that limit?

Right now, with the limit being a .08, and people start showing symptoms of it, you look for physical manifestations. You look for finger dexterity. The officer's will tell you they look at how you handle a driver's license, how you get out of your car, what your eyes look like.

You lower that limit, what are you really going to be basing an arrest upon? If you don't have speech issues, and let's say the person is a .05, and they're perfectly unaffected by it, but you know the limits an 05, you know it doesn't take that long or much to get there, the person's admitted to having a couple of drinks, and you don't see them being affected, but you're gonna roll the dice.

You're gonna, the officer's gonna err on the side of caution, because everything can be worked out in the system. And you're gonna be placed under arrest. And one of the things that—

Dillon
So this would mean a whole lot more yet DUI arrests?

Jonathan
Yes. And I think—

Dillon
Doesn't—

Jonathan
It also has a [crosstalk...]

Dillon
Isn't there a Target Zero kind of thing going on too with all of this? I mean-

Jonathan
Well, I don't know. I mean, the NTSB and Washington's target zero are not necessarily the same agency. Target Zero is really about eliminating any arrests in the future for people that are over the legal limit, which, I don't buy. I've never bought.

Dillon
If you keep lowering the legal limit, that's not—

Jonathan
Do you ever get to zero?

Dillon
No, exactly.

Jonathan
Well, you know how you get to zero is you just go ahead and make it illegal. Just say Washington or all states are zero tolerance. It's a slippery slope and we're gonna legislate that fact that you cannot consume alcohol—

Dillon
You've advocated for before on this show.

Jonathan
If you're gonna go from a scientific basis for having a law, where you can actually say everybody begins to be affected, it's a public safety issue, and then start chipping away at that, and say, oh no, we want to lower it for different reasons, but the reasons aren't because of the reason that we're at a .08, it's disingenuous.

Dillon
It really makes you rethink the past too then. If that was the limit, then why is it not good enough anymore?

Jonathan
Right. Why did we go from a 1-5 to an 08? Why didn't we go all the way to a .05? Why, because historically, I don't think the culture would have stood for it.

Dillon
We've got to take a quick time out. Back with more in just a moment. Jonathan Rands is our guest. He's a local DUI attorney talking about what Olympia is proposing. Our legislators down in the state capital are working on several different proposed bills right now that would change some details with DUI law. Jonathan is giving his honest assessment of what some of these ideas are right now. Jrandslaw.com is his website. Just the letter "J" R-a-n-d-s, is his last name, Rands. JRandslaw, so l-a-w. Jrandslaw.com is where you can find a blog about all of these issues if you want to look back at some of the things that we've talked about here. Lots of blogs on other topics related to all this. Of course, all of his contact info., how everything works with his practice in Fairhaven, Jrandslaw.com, check it out. Back with more in just a moment here on the Legal Docket.

Intro
The Legal Docket with Dillon Honcoop.

Breaking news: stimulating talk. This is KGMI Bellingham and KGMI.com.

Dillon
So we've just been talking about lowering the legal limit as far as driving and driving under the influence, and I think everyone knows because the PSA campaigns have been so effective, that everyone knows, for the most part the legal limit is at .08 as far as a representation of blood alcohol content. What is it? .08 what again?

Jonathan
Zero.

Dillon
.08

Jonathan
Zero.

Dillon
Right, but .08 gram, milligram

Jonathan
Well, it's .08—

Dillon
It's even more complicated than that actually isn't it?

Jonathan
Yeah, it's basically a representation of not having anything more than .08, not percent of blood alcohol concentration, but .08 per 200 milligrams of breath per ... it's too complicated.

Dillon
Yeah, go back into the archives. We have whole shows on how all of this stuff works. So they're talking about lowering it, and there's a proposal to lower it to .05. You've been talking about some of the problems with doing that. I'll play devil's advocate here, and say, "Of course, you're a DUI attorney. Of course, you aren't going to think this is a good idea. You're just looking out for your clients and trying to keep people from getting in trouble for driving under the influence." Someone might say.

Jonathan
Someone might say that. And, in fact, they, as a group of DUI attorneys that I, we meet and talk, the sure-fire way to get a bill passed is to go to Olympia and testify against it.

We have made a conscious decision to not oppose it because that's one way to get it done. But, at the same time, no, I'm opposed to it for the reasons that we've talked about. If, I'm not opposed to changing the limit, but if you're gonna change it, it should be zero tolerance, and not this slippery slope that we now have to work with.

Dillon
Isn't that the way it is now in Canada?

Jonathan
Well, Canada, they have a—

Dillon
Or B.C., I guess.

Jonathan
They have an impaired driving law and .04 for all intents and purposes is really the limit that they impose in practice. They basically say and have always, at least, even growing up there, I remember impaired or counter attack impaired driving, and that was not about a limit, it was about being impaired by alcohol. They're approach is different even though they have this limit.

And, couple of quotes just from an article that I read, and it says, "The recommendation of the lowered legal limit isn't even receiving overwhelming support from those who took up a campaign against drunk driving. 'We don't expect any state to actually go to a .05,' said Jonathan Adkins, a very, (very realistic) governors highway safety association spokesman." Sarah Longwell, who is a managing director of the American Beverage Institute said, "That's ridiculous," but I think you kind of expect that from her just like you would expect that to be a quote from a defense attorney.

Dillon
Right.

Jonathan
Even Mothers Against Drunk Driving, the lobbyist group that won a string of victories in getting the national levels in every state down from 1-5 to 08 in the first place, isn't crazy about the new idea.

Here's how they want to, how they think that drunk driving or DUI or changes should be, and it should be they say, "Mandatory installation of breathalyzer interlock on vehicles for those convicted of DUI."

What's Washington do right now mandatory first offense? We're among the leaders in the nation of ordering an ignition interlock. This doesn't have as much appeal to us, if you think about what's being done, and what's being proposed by those closest involved, because we've been doing it since 2004. Since 2004, every single DUI conviction is required an ignition interlock device as their conviction requirement. It's imposed to Department of Licensing, not the Courts. Your license is directly attached to that requirement through DOL and they monitor it.

Dillon
Jonathan Rands, local DUI attorney. We're out of time, but we'll keep following this, especially that last one that we've been talking about: lowering the legal limit. It will be interesting to see what they do. It will be interesting to see if this becomes a political football at all as well

Jonathan Rands is available online Jrandslaw.com. His practice, though, is in Fairhaven, and his phone number is 360-306-8136, so let's run over that again, the website is Jrandslaw.com, and the website, or, I just said the website, the phone number 360-306-8136. Have a great rest of your weekend.

Jonathan
You as well. Thanks for having me.

Intro
The Legal Docket with Dillon Honcoop.


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“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!”
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