DUI Sobriety Checkpoints in Washington State and Your Rights

DUI Sobriety Checkpoints in Washington State: Unconstitutional, and a Slippery Slope of State Constitutional Protections.

The issue of DWI / DUI Sobriety Checkpoints in Washington State has become a hot legislative and legal issue. While checkpoints are used, to some degree, in 38 states, Washington State’s Courts have struck down such invasions into our privacy. While Washington’s State Constitution was the basis of the State’s Supreme Court’s most recent disapproval of checkpoints, the U.S. Constitution and federal case law has also been interpreted to prohibit law enforcement from check point stops.

The United State Supreme Court, whose decisions are binding on all lower courts in the county, has also weighed in rather forcefully against DUI checkpoints. In City of Indianapolis v. Edmond, the U.S. Supreme Court held that a checkpoint program whose primary purpose is to detect evidence of ordinary criminal wrongdoing violates the Fourth Amendment. 531 U.S. 32, 121 S. Ct. 447, 148 L.Ed.2d 333 (2000).

Citing Constitutional protections against unreasonable search and seizure, the Court stated, “there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.”

Yet, many States have been able to fashion roadblock / checkpoint investigations that appear to survive legal scrutiny, and that is where Washington legislators seem to be trying to go. Our State’s legal precedent appears, however, to be a major road block to sobriety checkpoints. In City of Seattle v. Mesiani, written in 1988, the Washington State Supreme Court clearly ruled that the City’s sobriety checkpoint was not able to pass constitutional muster. However, the concurring opinion of Justice Dolliver and two other justices slightly muddled the legal precedent when they stated they “believe a sobriety checkpoint program, properly authorized by statute or ordinance, could be designed which would violate neither Const. art. 1, § 7, nor the Fourth Amendment.” City of Seattle v. Mesiani, 110 Wn.2d 454 (1988), 755 P.2d 775 (1988).

If a Washington law was to pass, Mesiani and Edmond both create high standards to lawful checkpoints. Edmond will require the State to prove the primary purpose of a checkpoint, and not merely by simply by calling it a sobriety checkpoint; the State will be required to prove that it was not a pretext and that the stated primary purpose of the checkpoint was, in fact, its actual primary purpose.

Furthermore, proof in DUI trials resulting from checkpoint stops will likely require the testimony of a policy making police official of high rank.

Before proceeding, the the legislature should seriously consider the caution of the Edmond court and our State’s history of protecting privacy rights.

Photo Credit: versageek via Flickr under CC License

Law Office of Brian M. Sullivan, PLLC LogoThe Law Office of Brian M. Sullivan has offices in EverettLynnwood, and Kirkland, Washington with practice areas focussing on DUI Defense, Criminal Defense and Personal Injury Law. Each case is unique, so contact us today for a free consultation. You can connect with Brian M. Sullivan on Google +.

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New lower Drunk Driving limit proposed for Washington State DUI laws.

NTSB Recommends All States Adopt .05 BAC Limit

Driving While Under the Influence” (DUI) to become “Driving After Consuming Alcohol” (DACA)?

On May 14, the National Transportation Safety Board recommended that states lower the per se BAC limit for DUI to .05 from its current level at .08. his change would have a substantial impact on our State and would likely criminalize the responsible driving behavior of many currently law abiding citizens. In order to understand the proposed change, you need to know how the current law works.

Sullivan Law FirmUnder current Washington DUI laws, there are two ways for a prosecutor to convict an adult for Driving While Under the Influence (DUI). The first way is for the prosecutor to prove to a jury of six people that the citizen was driving and within two hours after had a BAC of .08 or higher. This is called the “per se prong” because the prosecutor does not have to prove that the citizen was impaired but instead only that the BAC was .08 or higher.

The second way is for the prosecutor to prove that the citizen was driving while under the influence or affected by intoxicating liquor as shown by all of the evidence. This is called the “affected by prong” because the prosecutor has to actually prove that the citizen was impaired. The affected by prong is used when the person’s BAC is under .08, the person refused the breath or blood test, or a good defense attorney suppressed the breath test.

Washington has a zero tolerance limit for citizens under 21 when it comes to DUI. A minor can be convicted for “Minor Driving After Consuming Alcohol” for driving with a BAC of .02 or higher. It is clear that the NTSB would like Washington to move ever closer to zero tolerance for adult drivers. With the proposed new limit, you could be convicted for the very serious crime of DUI when you are not under the influence or affected by intoxicating liquor. You may not be impaired in anyway and totally safe on the road but, because your BAC was .05 or higher, find yourself convicted of DUI. Or, you may be under .05, but find yourself wrongfully arrested.

Increased Wrongful Arrests
Here’s how it might work: Let’s say you are on the golf course with a few of your friends. Let’s say you have always been responsible when it comes to alcohol and know that you can have a few beers over the course of the game and be perfectly fine to drive. You watch your drinks carefully and prepare to leave feeling absolutely no effects of alcohol.

Now let’s say that you have gotten a few speeding tickets in the past because you tend to drive 5 to 10 MPH over the speed limit and today you have some bad luck. A Washington State Patrol trooper pulls you over, not for driving over the road, but because you were going 7 MPH over the speed limit. As soon as you roll down the window, the Trooper smells a slight odor of intoxicants and asks “have you had anything to drink today?” Now, you haven’t been properly advised that your answer to that question should be “I am exercising my right to remain silent” so you make the mistake of saying “yes.”

In order for an officer to arrest a person for a crime, a police officer has to have probable cause to believe that the person is guilty of a crime. Under the current law for adults, there has to be evidence of something more than just an odor of alcohol and an admission of drinking. For example, the officer may offer field sobriety tests which the person fails. However, for minors, this is all the officer needs to arrest for DUI because of zero tolerance.

Under the proposed .05 BAC limit, some judges will likely reduce the standard for probable cause to something much closer to the current zero tolerance minor limit. That means merely having a slight odor of alcohol on your breath and admitting to having something to drink may be enough for you to be arrested and go to jail right then. Even if you are not subsequently charged with DUI, you will still suffer the humiliation of being handcuffed, maybe in front of friends and family, and being transported to jail. You will also have your vehicle impounded and have to pay around $500 to retrieve it.

Increased Convictions for Responsible Driving
Hopefully you remember to ask to speak to an attorney before you take the breath test which is your right. Regardless, let’s say you take the breath test and the two samples are .052 and .053. Now the officer may well book you into jail because you blew over the legal limit. Remember, you may not have felt any effects of the alcohol but the new .05 limit just got you a night in the Snohomish County jail.

The prosecutor would then be freed from having to prove you were affected by alcohol, which you weren’t, because of the new .05 limit. The prosecutor would just have to prove beyond a reasonable doubt that the test was accurate. Now, a good defense attorney will try to challenge the accuracy of the test, but our jobs are made that much more difficult when the prosecutor does not have to prove impairment.

If this new law is adopted in Washington, we will do everything in our power to defend people wrongfully accused for driving “under the influence” when the name has lost its meaning. In fact, under the new standard, they should change the name of the crime to: “driving after consuming alcohol.”

Washington Lawmakers reach new deal on DUI Laws Video

Law Office of Brian M. Sullivan, PLLC LogoThe Law Office of Brian M. Sullivan has offices in EverettLynnwood, and Kirkland, Washington with practice areas focussing on DUI Defense, Criminal Defense and Personal Injury Law. Each case is unique, so contact us today for a free consultation. You can connect with Brian M. Sullivan on Google +.

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4th Degree Assault in Kirkland, Washington – Not Guilty!

Successful Criminal Defense Verdict

Law Office Brian Sullivan, PLLC Kirkland

Law Office Brian M. Sullivan, PLLC
Kirkland, WA 98034
(425) 284-5605

A Kirkland Municipal Court jury recently returned a verdict of not guilty for one of our client’s charged with Assault in the Fourth Degree.  Jason Lantz, Associate Attorney at the Law Offices of Brian M. Sullivan, PLLC, spent hours investigating the case by interviewing witnesses and working with the client.  Thanks to motions brought by our firm, key evidence for the City of Kirkland was suppressed before  trial.  The City of Kirkland alleged our client assaulted someone in a fit of “road rage.”

Key Phrase Suppressed
Thanks to creative motion writing, the City was prohibited from using the phrase “road rage” at trial.  Thanks to the zealous advocacy by the Law Offices of Brian Sullivan with extensive criminal defense experience, a respected professional in the Kirkland community will not have an assault conviction on her record.

Law Office of Brian M. Sullivan, PLLC LogoThe Law Office of Brian M. Sullivan has offices in EverettLynnwood, and Kirkland, Washington with practice areas focussing on DUI Defense, Criminal Defense and Personal Injury Law. Each case is unique, so contact us today for a free consultation. You can connect with Brian M. Sullivan on Google +.

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Pharmacy Error | Were you given an incorrect prescription?

Recently, there have been news of incorrect drug dosages being dispensed by local pharmacies.

Generally, these cases involve the patient receiving the wrong pills, but notably, the correct pill description is usually identified on the bottle.  In these cases, patients often quickly and accurately deduce they have received the wrong medication.

What makes the most recent cases unique, is the description of the pill on the bottle matches the wrong pill.  That is, careful examination by the patient will not indicate to them that they are getting the wrong meds.

Our firm has been contacted by at least one recent victim of a pharmacy’s negligence in this manner.  If you have been given the wrong drugs by your pharmacy, call us now, or visit our personal injury page to make sure your rights are protected.

Law Office of Brian M. Sullivan, PLLC LogoThe Law Office of Brian M. Sullivan has offices in EverettLynnwood, and Kirkland, Washington with practice areas focussing on DUI Defense, Criminal Defense and Personal Injury Law. Each case is unique, so contact us today for a free consultation.

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Not Guilty Verdcit in DUI Case – DUI Defense Lawyer Brian Sullivan Ends Year With Accquital

DUI Lawyer Brian Sullivan

A King County jury acquitted V.G. in December 2012 after a jury trial for Drunk Driving (Driving Under the Influence of Intoxicating Liquor and/or Drugs, RCW 46.61.502). V.G. was represented by Attorney Brian M. Sullivan.

Mr. Sullivan’s client had been arrested almost a year earlier. He was initially stopped for “bad driving” – that is, he failed to signal while changing lanes to get onto an on-ramp and he briefly crossed and touched and the fog line. He admitted to drinking a glass of wine. He agreed to do field sobriety tests. The Trooper said he failed them. He refused the portable breath test in the field. He was arrested. At the station he blew one and a half times the legal limit.

DUI Attorney Brian M. Sullivan was retained and fought the case tooth and nail from start to finish. Mr. Sullivan, his associate Jason Lantz, and their team of DUI investigators and Breath Test Expert Witnesses did a thorough case review and investigation. Pretrial motions were filed and argued. As a result, the jury never heard about the Breath Test that was administered. The BAC result was suppressed based in the problems with its accuracy and reliability raised in the firm’s exclusion and suppression motions.

Mr. Sullivan also suppressed key evidence in the DUI allegation: the refusal to take a portable breath alcohol test before arrest. After reviewing our motions, the prosecutor conceded and didn’t offer the refusal as evidence.

We had gutted the State’s case against my client. Plea bargains were offered. “This is a good deal, Neg 1 or trial” the government prosecutor told us. But V.G. and I both felt strongly about the case. We went to trial.

In trial, Mr. Sullivan was able to demonstrate to the jury that the tests were not administered fairly, that they were improperly scored, and that while an officer with years of experience couldn’t smell alcohol, the young Trooper, who arrived later, supposedly could. Mr. Sullivan used the State’s first responding officer – a highly trained DUI enforcement officer – against them. Mr. Sullivan was able to get him to point out to the jury some of the many issues regarding the fairness and accuracy of the testing. The State’s DUI case was cracked as Mr. Sullivan was able to, time and again, demonstrate numerous inaccuracies / discrepancies between the police dash cam video, the police reports, and the testimony.

The end result was that our client left the courtroom that day free from the charges leveled against him. Not Guilty.

Law Office of Brian M. Sullivan, PLLC LogoThe Law Office of Brian M. Sullivan has offices in Everett, Lynnwood, and Kirkland, Washington with practice areas focussing on DUI Defense, Criminal Defense and Personal Injury Law. Each case is unique, so contact us today for a free consultation.

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Lynnwood, WA – DUI & Personal Injury Lawyer – OFFICE GRAND OPENING – Law Office of Brian M. Sullivan & Associates

7411 196th St SW, Lynnwood, WA 98036 – The Law Office of Brian M. Sullivan and Associates, is expanding.

This month, our 3rd office location is opening, right near the Edmonds and Lynnwood city line.  Initially, hours will be by appointment only.  But with the high demand our office has in Lynnwood Municipal, South District Court, and Edmonds Municipal Court, we expect to be open standard business hours within a few months.  Our flagship Everett office and Kirkland office both remain open M-F 8:30-5:30.

Attorney Brian Sullivan practices primarily in the DUI Defense and Personal Injury areas throughout NW Washington State.

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Failure to Signal 2 Billion Times a Day: or, Beating Your DUI Resulting from a Failure to Signal

Recently released information the Society of Automotive Engineers (SAE) that claims that close to 2 million accidents are caused by drivers neglecting to appropriately use turn signals annually. The report also suggests close to 50% of drivers neglect to use a turn signal when changing lanes or forget to turn them off in a timely manner. This translates into approximately 2 billion turn signal violations each day or 750 billion times each year, according to the SAE.

This raises a serious issue in my DUI Defense practice.  Because I regularly represent those accused of driving impaired, I have seen the ill effects of this statistic from the point of view of those charged with a crime.  Washington law requires that drivers not only signal before changing lanes, but to do so several hundred feet in advance.  All too often, those charged with DUI, or other criminal charges, are stopped for this very reason.  This report gives more credence to a successful pretext defense in a traffic stop.  Under Washington case law, an officer may not stop a driver for an infraction wholly unrelated to the purpose of the contact (e.g., an officer in Washington State stopping a vehicle for a small lane violation because he thinks the suspect vehicle may contains drugs and without another way to make lawful contact, may well do so illegally).

Pretext stops happen with some frequency.  I have successfully argued for cases to be dismissed based on these types of unlawful stops.  If you have questions about this or your DUI or other criminal case, feel free to give us a call for a free consultation.

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Read more here: http://www.sacbee.com/2012/05/01/4457626/car-insurance-rates-responds-to.html#storylink=cpy

New DUI law the gives WA one of the most “comprehensive ignition interlock programs in the country”

House Bill 2443 may go into effect soon.  It is being hailed as one of the most comprehensive ignition interlock programs in the country.  The bill further moves the issue to the hands of the Department of Licensing, and away from municipal and county courthouses.   The question will be whether DOL can administrate the program as well, and more cost effectively.  The major concern is how to help those injured by the administration of the law.

Capt. Jason Berry, legislative liaison for the Washington State Patrol, stated “as we look to technology to assist us in changing offender behavior, maintaining quality assurance and ensuring these drivers remain sober, we need appropriate oversight in place.”   Oversight of DOL rulings, however, will likely be a major new issue with the increase in their volume dealing with suspended, revoked, ignition interlock, occupational restricted, and commercial driver’s licenses.

 

The costs are passed on to those who are charged with DUI and convicted of that offense, or a lesser offense.

The bill also urges ignition interlock devices come with a facial recognition system when possible.

 

The DUI law takes effect Aug. 1, 2012.

St. Patricks Day Weeknd – DUI Patrols are out there.

With the merriment of St. Patrick’s Day comes the unfortunate fact that many folks choose to drink and drive. Accidents, sometimes fatal occur. In response, the WSP and other police agencies usually step up their patrols.

Accidents and Injuries on the weekend of 3/17 each year has prompted the following actions:

http://www.maplevalleyreporter.com/news/141442093.html

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New Round of Proposed DUI Laws – March 2012

Once again, local lawmakers are working to increase penalties and fines DUI (both Rx and non-Rx drugs and alcohol) and for vehicular homicide.

The current vehicular homicide law puts first-time offenders in a position of a jail sentence of about 2.5 to 3.5 years.House Bill 2216 would more than double the jail.

HB 2302, sponsored by Roger Goodman, D-Kirkland, would make additional CPS requirements for those with children found in a vehicle with a parent or guardian under the influence.The bill would increase the age limit from 13 to 16 years.

HB 2443, would requirement an ignition interlock in cases reduced from DUI to reckless driving.  The bill also amendsthe term “drug” to include any chemicals that may be inhaled or ingested for intoxicating or hallucinatory effects, such as benzine and nitric oxide.  The bill also removes the implied consent (that is, it allows a breath or blood test without the suspect’s consent) for those under suspicion of felony DUI.
HB 2405, allows courts to make those convicted of DUI pay additional costs to support families of vehicular homicide drunk driving victims.

See the full story at the Seattle Times: http://seattletimes.nwsource.com/html/politicsnorthwest/2017562622_lawmakersseektotoughenduirelatedlaws.html