Criminal

Our practice includes representing persons charged with crimes in District Court, including infractions, misdemeanors and gross misdemeanors with an emphasis in DUI.

Please take a moment to review frequently asked questions regarding DUIs:

DUI Frequently Asked Questions

1. What should I say if I am stopped by a police officer?

You should always carry our "Assertion of Rights Card" and be familiar with its content.

You are not required to answer any questions. A polite "I would like to speak with a lawyer before I answer questions" or "My lawyer always said 'to be polite and keep my mouth shut'" are both good replies.

The most important thing is to never lie about anything! It will only damage your credibility in court. It is always your right to speak to a lawyer. Do not make any further statements until you have had the opportunity to do so.

2. Do I have to attempt the "field sobriety tests?"

NO!!! Unlike blood and breath testing, submitting to "field sobriety tests" is strictly voluntary. In many respects, these tests are designed for failure and unless you are being videotaped the ONLY evidence that you passed or failed is the officer's opinion. This is often a no-win proposition.

Many of the several tests the officer might ask you to take, such as the alphabet test, the finger-to-nose test, the finger-count test and the standing balance test,(usually administered along with the finger-to-nose test) are scientifically proven to not correlate with legal intoxication.

According to the National Highway Traffic Safety Administration (NHTSA), the only tests that have been shown to have some relevance to establishing legal intoxication are the One Leg Stand, the Heel-to Toe and the Horizontal Gaze Nystagmus (HGN).

HGN - In this test the officer has you follow a penlight (or finger/pencil) and attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation). If this occurs before 45 degrees, it theoretically indicates a blood alcohol concentration over .05%. The smoothness of the eye's tracking is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This test has been shown to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus, estimate the angle of onset and make medical diagnosis that is best left to neurologists and ophthalmologists. Even under laboratory conditions, this test has only been established of be accurate in predicting a blood alcohol content above .10% 77% of the time. This test will not show up EVEN if there is a video, so the only evidence is the officer's recollection.

One Leg Stand - In this test you will be asked to stand on one foot for approximately 30 seconds, while the officer looks for four things:

1. Do you sway while balancing?
2. Do you use your arms for balance?
3. Do you hop?
4. Do you put your foot down?

According to NHTSA if you are unable to satisfactorily perform this test by doing two or more of the above, there is a 65% probability that you have a blood alcohol concentration of .10% or more.

Heel-to-Toe - In this test the officer is required to find a visible line. You will be asked to stand on this line in a heel-to-toe position while receiving instructions. The officer will have you walk on this line for nine steps, heel to toe, turn, and walk nine steps back. The officer will be looking for eight things:

1. Can you balance during the instruction phase?
2. Do you start the test too soon?
3. Do you stop while walking?
4. Do you touch heel-to-toe each step?
5. Do you step off of the line?
6. Do you use your arms for balance?
7. Do you lose your balance on the turn, or do you turn incorrectly?
8. Do you take the wrong number of steps?

These tests are simply additional evidence to use against you in court. While an arrest may be avoided if the tests are taken and successfully completed, the tests are so subjective (what appears to be "swaying" to one officer may not be to another) that the best action may well be to politely decline until you have had the opportunity to talk to a lawyer.

Obviously, refusing the tests will definitely heighten the officer's suspicion and may result in an immediate arrest. Regardless, if you have been drinking, submitting to "field sobriety tests" is a momentous decision that will likely affect your case adversely.

3. Do I have to take a portable breath test (PBT)?

NO!!! The results of the PBT are not admissible in trial, driver is rarely informed of that. The fact of a refusal of a PBT is not admissible at trial, and you will not lose your license or suffer any other sanctions for refusing a PBT. You should REFUSE the PBT and normally take the test at the station.

Accordingly, there is a critical difference between the PBT and the "official" breath test that will be requested after arrest at the police station, known as the BAC Machine. Do not confuse the two tests! You do not have to submit to the PBT on the street. But if you refuse to take the test on the BAC MACHINE at the police station you will face at least a one-year license revocation.

Some people think that because they took a breath test on the street that they do not need to take another one at the police station because the difference is not adequately explained to them. Do not make the same mistake! If arrested for DUI, ask to speak to a lawyer immediately.

4. Does the officer have to read me my rights? What if he/she does not? Do I have the right to talk to a lawyer?

Almost everyone is familiar with the "Miranda rights" From TV. But when those rights must be read depends upon the facts and circumstances of each case. Generally speaking, the officer must read you your rights when you are arrested. If the officer fails to do so, the prosecution cannot use any statements you make in response to questions.

In Washington, the rule has been expanded from the original Miranda rule, which simply provided that a suspect has the right to remain silent and not answer questions until talking with a lawyer. As a result of a court rule adopted by the Washington State Supreme Court, an arrested person has the right to talk to an attorney for any purpose, not just to find out whether or not to answer questions. This is particularly important in DUI cases, because it means an arrested person can talk to an attorney to find out whether or not to take a breath test, as well as other things he or she should or should not do while in custody, or after release.

Failure to advise a person of the Miranda rights typically does not result in dismissal of the case. The remedy is suppression or exclusion of evidence obtained after the violation of the suspect's rights

It is a fact of life that most people do waive their rights and agree to talk to the officer. That is usually based on a mistaken belief that being cooperative will help their case. It is imperative that you ask for a lawyer’s help at this stage. Tell the officer, "I guess I need to talk to a lawyer to help me with this. Can you put me in touch with one now?"

Since you have the absolute right to decline police questioning, your silence cannot be used against you in court nor can the fact that you ask to speak to a lawyer.

5. Do I have to take a breath test at the police station?

You do have the right to refuse to take the official breath test, but the consequences can be severe, and you can, and probably will, still be prosecuted for DUI. In Washington, there are three official sanctions:

• Your driver's license can be suspended for a minimum of one year, or substantially longer if you have prior DUIs.
• The fact of refusal can be introduced into evidence as "consciousness of guilt." In other words, the prosecutor will claim that you refused because you knew you would flunk the test.
• A test refusal will increase the mandatory minimum sentence that the judge must impose if you are found guilty.

If you refuse the test the Department of Licensing (DOL) will revoke your license for at least one year. Prior DUIs can increase the revocation to two years. There is no occupational license allowed, and you will be required to file proof of financial responsibility (high risk insurance) for three years after reinstatement.

You are entitled to a hearing before DOL revokes your license, but only if you request it by way of a hearing request form provided by the officer within 30 days of the date of arrest, and pay $200, which can be waived if you are indigent.

Refusals increase the mandatory minimum sentence that must be imposed in the event of a conviction. In fact, the courts treat a test refusal the same as if the test result was over a .15 alcohol concentration! The fine will increase, the jail time will increase, the additional license suspension resulting from a conviction will increase, and you will be required to install an ignition interlock device in your car.

The DOL's license revocation will stand if you are unsuccessful in the administrative hearing regardless of the outcome of the criminal prosecution. Even if you are found not guilty, you will still lose your license for refusing the test!

It is usually easier to deal with a breath test in trial result than to successfully contest the revocation, so in most circumstances it is advisable to take the test. However, you should always call a lawyer if you are arrested for DUI.

6. The Anatomy of a DUI Stop

An officer must have a reasonable suspicion to believe you have violated some law in order to make a traffic stop. Random stops and "Sobriety Checkpoints" are not legal in Washington.

According to the National Highway Traffic Safety Administration (NHTSA), the following is a list of symptoms, and the percentage chance that a driver at night is legally drunk:

1. Turning with a wide radius - 65%
2. Straddling center or lane marker - 65%
3. Appearing to be drunk (e.g. slouching in the seat, gesturing erratically or obscenely, eye fixation, tightly gripping the steering wheel, face close to the windshield, drinking in the vehicle, head protruding from the vehicle) - 60%
4. Weaving - 60%
5. Driving on other than designated roadway - 55%
6. Swerving - 50%
7. Slow speed (More than 10MPH below speed limit) - 50%
8. Stopping (without cause) in traffic lane - 50%
9. Following too closely - 50%
10. Drifting - 50%
11. Tires on center or lane marker - 45%
12. Braking erratically - 45%
13. Driving into opposing or crossing traffic - 45%
14. Signaling inconsistent with driving actions - 40%
15. Slow response to traffic signals - 40%
16. Stopping inappropriately (other than in traffic lane) - 35%
17. Turning abruptly or illegally - 35%
18. Accelerating or decelerating rapidly - 30%
19. Headlights off - 30%

However, the officer does not have to observe any bad driving to pull you over. A burned out license plate light or headlight is sufficient legal justification to stop your car.

As he/she is pulling you over, the officer will continue to observe your driving for anything unusual: responding slowly, swerving abruptly, stopping suddenly or striking the curb when pulling over.

When you are pulled over, you should immediately retrieve your driver's license, registration and proof of insurance before the officer approaches your window and asks for these documents. Roll your window down. If the officer witnesses you fumbling for your paperwork, or having difficulty with the window (due to nervousness or unfamiliarity with the car) he will undoubtedly attribute these actions to intoxication rather than stress. Have everything ready. Also, do not take off your seat belt.

Understand that the officer's goal in every traffic stop is to gather evidence. He will be using all of his senses to collect evidence against you, and will do very little to gather or record evidence that will help you.

1) The Officer is looking for:

• Red, watery, glassy and/or bloodshot and eyes
• Flushed face
• Soiled clothing
• Fumbling fingers
• Alcohol containers
• Drugs, drug paraphernalia or other contraband
• Bruises, bumps or scratches

2) The Officer is listening for:

• Slurred or thick-tongued speech
• Inconsistent and/or slow responses
• Admissions of alcohol consumption or intoxication
• Abusive language
• Unusual statements

3) The Officer is sniffing for:

• Alcoholic beverages
• Marijuana
• "Cover up" odors such a breath sprays, mints, chewing gum or smoke
• Unusual odors

Remember, always be courteous towards the officer. Never argue or debate with him. You will inevitably lose. Most importantly, never lie about anything. In other words, if have been drinking, do not deny it, but do not admit it either. Politely decline to answer. Lying can damage your credibility later in court. If the truth hurts, it far better to politely decline to answer questions and ask to speak to a lawyer.

If the officer suspects you are impaired, you will be asked to get out of your car. At this point the officer will be paying close attention to your coordination during the exit, which will, in the officer's mind provide evidence of your intoxication. Specifically, the officer will be observing:

• If you cannot follow instructions
• If you cannot open the door easily
• If you leave the ignition on
• If you leave the car in gear
• If you "stumble" getting out of the car
• If you are swaying or unstable on your feet
• If you use the door for support while exiting
• If you lean against the vehicle
• If you keep your hands on the vehicle for balance

After you have exited your car, the officer will instruct you to perform a series of voluntary "field sobriety tests" to see if "you are safe to drive." You should generally decline to take these tests. Without a videotape, the only thing that determines if you pass is the officer's opinion. The physical tests may include:

• Reciting the alphabet
• Walking a straight line in a heel-to-toe fashion
• Standing on one foot for approximately 30 seconds
• Finger counting
• Closing your eyes, leaning your head back and touching your finger to your nose
• Examining your eyes to by having you follow a pen or finger

In addition to these "tests," most officers use a portable breath test (PBT). This type of breath device cannot be used in your trial, so will not fulfill your obligation to take an "official" breath test at the station . You should generally decline to take the PBT and ask to take the "official "test at the station.

7. What Happens to my license?

The Department of Licensing (DOL) will suspend your license AUTOMATICALLY if you are an adult arrested for DUI (or physical control) and have a breath or blood test result of .08 or higher; or if you are under age 21 and your test result is .02 or higher. Your license will be revoked for at least one year if you refuse testing.

To AVOID this you must request a hearing from DOL within 30 days of the date you were arrested. We offer free help to show you how to handle this request.

When you were released from custody, the officer should have given you a hearing request form.

Unless you send in the hearing request form (and pay a $200 fee) within 30 days of your arrest, you will lose your license and have no right to appeal! (In blood test cases, time period starts when DOL mails you notice of your blood test result.)

Your hearing request must be postmarked no later than the 30th day. (Do not forget to include a check or money order for the $200 hearing fee). Once you request a hearing, DOL must hold the hearing within 60 days of the date of arrest.

The Department's case is totally independent of any criminal prosecution.

• Revocations based on a refusals will run in addition to any license suspension resulting from a conviction.
• Suspensions or revocations based on flunking the test may run at the same time as a suspension or revocation resulting from conviction.