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40 WAYS TO BEAT A DUI/DWI IN WASHINGTON STATE
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If you have been arrested for DUI or DWI, it is obviously cause for concern—but not for despair. By hiring a quality defense lawyer who can protect your rights, there are a host of ways your case may be defendable. That’s why it would be a good idea to consider hiring one of America’s DUI and DWI Defense Attorneys in Washington now. Here’s a few ways our lawyers may be able to win your case. Even if your case involves a drug, drugs, medicine or alcohol, they will help. 1. ILLEGAL STOP OF VEHICLE – a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred. 2. WEAVING WITHIN A THE LANE IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason. 3. ANONYMOUS REPORT OF DRUNK DRIVING – a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk. 4. STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests. 5. NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests. 6. BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much s +/- 12.5%, non-specificity for ethanol, etc. 7. BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary. 8. IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony. 9. FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed. 10. POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations. 11. HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons. 12. BREATH TEST OPERATOR UNCERTIFIED – Most states require a Breath Test Operator to possess a valid, unexpired operator’s certification, or the breath test result is inadmissible. 13. BAC DATAMASTER MACHINE MALFUNCTIONS – Most states specify that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid. 14. BREATH TEST OPERATOR LICENSE EXPIRED – Most states require that a Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible. 15. BREATH TEST DEVICE NOT APPROVED – A breath-testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices or the results are inadmissible. 16. FAILURE TO PROVE DRIVING UNDER THE INFLUENCE – A defendant’s admission to driving, without more, does not prove a charge of driving under the influence. 17. INDEPENDENT WITNESSES – Often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety. 18. FAILURE TO MIRANDIZE – Prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings. 19. FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication. 20. OFFICER’S PRIOR DISCIPLINARY RECORD – A police officer’s previous disciplinary record can be used to attack the officer’s credibility. 21. PORTABLE BREATH TEST INADMISSIBLE – Washington prohibits the use of portable breath testing results as evidence at trial in a DUI case. 22. PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature. 23. FAILURE TO CONDUCT OBSERVATION PERIOD – Washington requires that a driver be observed continuously for a minimum period of fifteen minutes prior to a breath test in order for the results to be considered admissible and valid. 24. EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests, and field sobriety tests. 25. MEDICAL AND HEALTH PROBLEMS – Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results. 26. BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance. 27. LACK OF PROBABLE CAUSE TO ARREST – A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial. 28. ILLEGAL SEARCH – The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court. 29. PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS – Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility. 30. POST-DRIVING ABSORPTION OF ALCOHOL – The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile. 31. INTERFERING SUBSTANCES – Many items contain forms of alcohol, which may cause false results such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid. 32. BAC DATAMASTER NOT PROPERLY OPERATED – The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings. 33. FAILURES TO PRODUCE DISPATCH TAPES – Most stops of vehicles are recorded on dispatch tapes as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request may cause all evidence which could have been recorded to be suppressed. 34. MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, or breath test may cause the suspension to be reversed and removed from the driver’s record. 35. STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within a certain period of time, two years, from the date of offense or the charges will be dismissed with prejudice. 36. PRIVATE PROPERTY – A person who has not driven the car on a public highway in Washington State cannot be suspended for drunk driving. 37. FAILURE TO DISCLOSE EXPERTS – The failure of the Washington DUI prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant. 38. LACTATE RINGERS – When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated and accordingly, invalid readings. 39. FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test Washington Drunk driving breath machines will cause the breath test results to be inadmissible in court. 40. FORCED BLOOD DRAWS – The police may not take a blood test against the driver’s consent where there has not been an injury involved or the result is inadmissible. (disclaimer) State laws may vary with time. Please consult an attorney for legal advice on actual application in your state. |
High court upholds 2004 law on breath alcohol tests
By RACHEL LA CORTE / Associated Press
The state Supreme Court has upheld a 2004 state law that made it tougher for breath alcohol tests in drunken driving cases to be thrown out of court.
Defense lawyers declared victory, saying Thursday's ruling returns the power to a judge — not a jury — in deciding whether the results are admissible. But prosecutors said defense attorneys were reading the ruling incorrectly, and that the high court didn't change the law — that once certain standards are met before a judge, any additional concerns about a breath test must be addressed with the jury.
"They can spin it however they want, but the bottom line is public safety is being enhanced" with the law being upheld, said Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys, who represented the city of Fircrest in the case before the court.
In a 7-2 opinion written by Justice Charles Johnson, the high court affirmed a Fircrest Municipal Court ruling that the law was constitutional.
The 2004 statute made several changes to existing DUI law, including allowing search warrants in order to get breath or blood samples, although the biggest change made it easier for the prosecution to get breath test evidence admitted into court.
The case involved Theo Jensen, arrested in October 2004 after he was pulled over for speeding by a city of Fircrest police officer. The officer conducted field sobriety tests after smelling alcohol on Jensen's breath, and took him to the police station to conduct a breath alcohol test. Jensen's results were .043 and .042 — above the .02 legal intoxication threshold for drivers under age 21. Jensen was 18 at the time.
Drivers over 21 in Washington state are considered intoxicated if their breath alcohol is .08 or above.
Jensen was convicted of being a driver under 21 consuming alcohol, but challenged his conviction on several grounds, including claiming that the law was unconstitutional because it included more than one subject in its title, and that it violated the doctrine of separation of powers and his due process rights.
The court rejected all of his arguments.
"The Legislature has made clear its intention to make ... test results fully admissible once the State has met its prima facie burden. No reason exists to not follow this intent," the court wrote. "The Legislature is not invading the prerogative of the courts nor is it threatening judicial independence."
But defense attorney Linda Callahan seized on one line in the majority's ruling: "There is nothing in the bill, either implicit or explicit, indicating a trial court could not use its discretion to exclude the test results under the rules of evidence."
"What we interpreted the law to say is that the breath test result goes to the jury, without interference of the judge," she said. "What the Supreme Court says today is that 'no, it doesn't say that.' The judge still can throw out the breath test result. That's a win for us."
Assistant Attorney General Barbara Bailey said Callahan was mistaken, and the court was just upholding the law as it has always been interpreted by the attorney general's office.
"Our argument has always been that it's admissible, not necessarily admitted," she said. "The court still has the discretion" under the rules of evidence.
Callahan said things like diabetes or being on the Atkins Diet can result in someone giving a falsely high reading for alcohol, which makes it important for judges to be able to decide to not make the tests admissible.
"Once a jury sees that piece of paper with a number over the limit it's really prejudicial," she said. "As defense attorneys we don't want them to see that number, particularly if there's a problem with the test."
In his dissent, Justice Richard Sanders took the majority to task.
"Surrender of judicial independence is precisely what the majority does when it upholds a bill shackling the power of the courts to do that which the courts have traditionally done: Determine the admissibility of evidence," he wrote.
The high court agreed to review the law after several judges handed down conflicting rulings — and some courts tossed out the entire law as unconstitutional.
Loginsky said that hundreds of cases have been affected and Callahan said that thousands of breath tests have been kept out of court cases because of the confusion.
Loginsky said that Thursday's ruling breaks the logjam of DUI cases.
"A lot of cases are now going to get set for trial and move forward," she said. "People who have been delayed in facing the consequences of driving drunk will now have to face those consequences."
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The case is City of Fircrest v. Jensen, docket number 76738-6.
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On the Net:
Washington state Supreme Court: https://www.courts.wa.gov/
