Washington DUI Trial Law : Washington State DWI Lawyer & Attorney : Francisco Duarte : Seattle, Tacoma, Bellevue, Kirkland

     Most of us have heard the news bulletins informing us that law enforcement agencies around the state are increasing their “holiday emphasis patrols” in a preemptive strike against drunk driving. What many don’t know, however, is how these groups actually operate.

     A common misunderstanding is that these cops are only on the look-out for the obviously drunk drivers, and are waiting to stop cars that appear to be driving erratically or recklessly. While this is also true, most emphasis patrols require that officers make regular traffic stops for routine infractions throughout their shift in the hopes that they will discover a driver who has been drinking. In other words, these cops are not lying in wait for the obviously impaired driver; rather, they are targeting regular citizens as a pretext for conducting otherwise improper investigations into drinking, and are much more prone to make hasty arrests even when the driver is not impaired.

     For example, most highway patrol officers working a regular shift would divide their time between responding to calls for assistance (i.e. disabled motorists) and in traffic code enforcement. But on an emphasis patrol, the officer is usually directed not to respond to service calls and instead focus solely on enforcement, even if that officer is in the best position to render assistance. (Consequently, this sometimes results in longer-than-necessary waits for stranded drivers or for the removal of debris in the roadway).

     Also, officers working an emphasis shift are much more likely to strictly apply the traffic code then when on routine patrol. For instance, a traffic stop when only driving five miles over the 60 MPH freeway speed limit would generally be a rarity. But for an emphasis officer, any possible violation is reason enough for a stop because it provides an opportunity to investigate drinking – even when the cop has no particular reason to believe the driver has even consumed alcohol or drugs.

     In fact, many emphasis patrols require officers to initiate a certain number of traffic stops each hour that they work unless/until they make a DUI arrest. This requirement is often mandated in order to receive funding for specialized patrols. While having contact quotas forces officers to actively work, as opposed to just sitting around while earning overtime pay, it also results in unjustified traffic stops simply to keep up the numbers. Even more troubling, it encourages unjustified arrests because once a DUI arrest is made, the officer is relieved of the quota requirement.

     What this means for every driver is that even tiny infractions can get you stuck. Things like: the size of mud flaps, the color of turn signals, the height of exhaust pipes, the tinting of windows, stopping with wheels an inch onto the white cross-walk line, traveling 1-5 miles over the speed limit, turning into the right lane on a left-hand turn or turning into the left lane on a right-hand turn, traveling closely to the car in front = all of these minuscule equipment problems or driving irregularities can result in a traffic stop that would not be a concern under normal conditions.

     So, when you think about those “holiday patrols” be aware that they are designed to trap everyone -even where there is no unsafe driving, and remember that minor deviations provide all the ammunition cops need to ruin your night and possibly land you in jail.

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      Two days ago a young man was sentenced to prison for the fatal death of a good man in a drunk driving incident. It was the young man’s first and only incident with the law, not even a traffic infraction in his 14 year driving history, which resulted in a tragic transformation for all. The victim’s family suffered the loss of a fantastic person, known to all as a great father, loving husband, and loyal friend. At the same time, the young man had a defining moment in his life, which takes him to prison, leaving behind a cadre of people who adore him and who will miss his kindness, generosity, and loving manner.

      The pain is pervasive. For most it comes from the experience of the loss of a loved one and for the young man it comes from knowing that his kind soul is responsible for the taking of life.

      These events are devastating all around and there are no winners. This is why I was surprised to hear about the jubilation outside of the courtroom when the young man in handcuffs was taken from the courtroom by marshals to begin his journey behind bars. It is very understandable that the victim’s family would experience a sense of righteous vindication upon the imposition of sentence. This sense of “closure” would bring a welcome relief to a painful chapter in the life of those left behind. Anyone can appreciate such a moment.

      However, what happen next was incomprehensible. A few piercing words rose from the high-fiving crowd and lingered above those celebrating in complete jubilation:

“…let’s go have a drink and celebrate…” 

It must have been a mistake. How could any person witnessing the events inside the courtroom and knowing how alcohol played a role in ruining two lives speak such words? I suppose sometimes we loose perspective on things and when humanity is called upon to be humane and humanitarian, we find the darkest side of ourselves.

      Personal responsibility and self reflection is required. One program that could bring sound perspective on the loss experienced by all and raise our collective awareness to the dangers of driving after drinking is the DUI Victim Panels. These panels are staffed by persons who were either victims, related to victims, or accused of alcohol offenses. They share with the audience heart wrenching stories that leave a strong impression about the the dangers of mixing alcohol with driving.   The Legislature should consider requiring all first time drivers and/or licensees to attend a session of the DUI Victim Panels.  The Legislature should also bring these programs into high schools and the workplace. Instead of promoting laws that do not work, it should consider programs that do work!

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            The charge of Driving Under the Influence (DUI) requires proof that the driver was impaired or affected by alcohol consumption. This means that the quality and the quantity of the evidence must demonstrate that the driver’s mental or physical functions were impaired to safely operate and control a car.[1] Therefore, it is irrelevant to the charge of DUI to produce evidence that does not measure or demonstrate driving impairment.  According to the National Highway Traffic Safety Administration (hereafter NHTSA), standardized field sobriety tests (FSTs) do not measure driving impairment.  The common roadside tests include the walk and turn test, the one leg stand test, and the horizontal gaze nystagmus test.  Sometimes police officers will add the ABC test, the Rhomberg Balance test, the finger to nose test, and the counting backwards test.

            In fact, these agility tests are not “sobriety” tests in spite of their label. This is a government-sponsored “name” for a battery of agility tests to mold the public’s perception in believing that the tests do something that they do not. These tests were designed and are solely used to help an officer estimate a driver’s alcohol concentration and establish probable cause to arrest based on their prediction of an alcohol concentration. See DOT HS 808 839, Final Report, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent. In other words, the roadside agility tests were developed for the sole purpose of assisting a police officer to make an arrest decision because arrest decisions must be reasonable and must be based on articulable facts.

            While many courts and prosecutors consider the roadside tests to be conclusive on the issue of intoxication, nothing could be further from the truth. A good friend of mine cannot and would not “pass” any of the roadside tests because he can barely walk due to all sorts of medical issues, including his weight, but he is a fine driver.  As noted in the NHTSA report:

Many individuals, including some judges, believe that the purpose of a field sobriety test is to measure driving impairment. For this reason, they tend to expect tests to possess “face validity,” that is, tests that appear to be related to actual driving tasks….Driving a motor vehicle is a very complex activity that involves a wide variety of tasks and operator capabilities. It is unlikely that complex human performance, such as that required to safely drive an automobile, can be measured at roadside. The constraints imposed by roadside testing conditions were recognized by the developers of NHTSA’s SFST battery. As a consequence, they pursued the development of tests that would provide statistically valid and reliable indicators of a driver’s BAC, rather than indicators of driving impairment.

Therefore, roadside tests do not measure driving impairment. These are not sobriety tests, no matter what the government would like us to believe. Roadside tests are not relevant to the question of whether a driver was impaired or affected to safely operate his vehicle due to alcohol or drug consumption. They are only relevant to answer the legal question about whether or not an arrest was lawful, a standard far below the proof required to convict a person of a crime. Moreover, its use is highly prejudicial because the government would attempt to incorrectly proffer the results of the roadside tests to establish driving impairment due to alcohol or drug consumption.[2]

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             The law defines the crime of driving under the influence (DUI/DWI) as driving with an alcohol concentration at .08 or higher. (See Male and Female BAC Chart.) We all know this. It is virtually impossible to miss the .08 signs on the side of the road, the TV public announcements, the motor-vehicle driving booklet, the news reports about DUI laws, etc., etc. What is not well known about the DUI laws is that it has another definition. It is illegal to drive when a person is under the influence of or affected by alcohol and/or drugs. In other words, a person is guilty of DUI if his or her ability to drive is lessened to any appreciable degree, regardless of the quantity of alcohol or drugs in their system.

            This means that a person who blows below .08 may be arrested, charged, and convicted of DUI. It also means that a person with no alcohol in their system, but who has some quantity of drugs in his or her system, including prescription medications, may be convicted of DUI.   This part of the law is not well known or understood by the public. I have represented many individuals who have been accused of DUI with very low alcohol concentrations—as low as .02, the equivalent of a 12 oz. beer. Also, I have represented senior citizens who have been accused of DUI when they had taken only their prescribed medication as ordered by physicians. Surprisingly, it is not a defense to the charge of DUI that the person was entitled to use the prescribed medication.

People who find themselves in this situation are shocked when they discover these details about the DUI laws. On top of being scared, ashamed, and depressed, they feel a great sense of frustration because they believe, and rightly so, that they were misled by the government. Often I hear questions like how fair is it for the government to profit from alcohol sales and at the same time prosecute people who don’t exceed the legal limit? How can an elderly person with a clean record be accused of DUI when they were taking their meds as required? The answer to all of these questions, of course, is unsettling and unsatisfying--that’s the law! The Legislature, in its infinite wisdom, passed these laws believing them to be right.

The shocking revelations about the DUI laws do not end here. It actually gets worse when these folks find out that the evidence to be presented against them often consist solely of the subjective opinion of the arresting police officer. The officer will be called at trial to express an opinion about the accused’s sobriety state, citing to his or her experience as a police officer and to his or her observations about the accused. The testimony is often bolstered by reference to roadside tests, otherwise known in law enforcement circles as field sobriety tests, which are not even designed to measure a person’s ability to drive. These tests are no more than physical exercises designed to create imbalance, but spun to convince a jury that they mean something a kin to a forensic breath or blood test.

There is no question that driving intoxicated is dangerous and it should be stopped. Also, there cannot be any question that the laws as they stand leave too much room for unfair treatment and unjust prosecutions. Perhaps the law should be that no person should drive after consuming any amount of alcohol. That way, every citizen will clearly understand what is expected and what the law requires. Most importantly, it removes from the equation the flaw in prosecuting and convicting persons on the subjective opinion of witnesses. 

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