Category Archives: DUI

DOL’s driver’s license status check not always accurate

A person’s driver’s license can be suspended or revoked for numerous reasons in Washington. Depending on the type of suspension, the person may be eligible for an Ignition Interlock License or some other restricted driver’s license. While the law requires a person to be notified that there license is suspended, depending on the situation, it can be difficult to determine whether a person’s license is valid or not. Fortunately, the Washington State Department of Licensing (DOL) has a handy online tool where a driver can check the status of their license in real time.

While this online tool is helpful, during my career as a criminal defense attorney, I have learned that this tool is not always accurate and sometimes displays false information. For instance, I recently had a client whose license was suspended but believed they had obtained a valid Ignition Interlock License. I looked into this client’s situation and confirmed they had done everything that was necessary to obtain this valid license. However, when the client looked up the status of their license at DOL’s online status check, it showed that the client’s Ignition Interlock License was not valid. If this were true, it would mean the client could be arrested for Driving with a License Suspended Second Degree at any moment, have their car impounded, and booked into jail. The client was obviously concerned with whether their license was valid or not.

I contacted DOL who confirmed my client had a valid Ignition Interlock License despite what DOL’s online status check showed. The DOL representative did not have an explanation for why the online feature shows my client’s license was not valid. Moreover, this was not a temporary computer glitch but the false information had been displayed for several months. I asked if police officers (who check the status of a person’s license from their patrol vehicle) would also be provided this false information and the DOL representative responded that law enforcement receives their mobile data from a separate network than the internet based status checks. So in theory, that should not be a problem.

It is concerning that DOL’s driver’s status check is not always accurate. People rely on this feature to determine if they are legal to drive.  What if the online status check says a person’s license is valid when in fact it is suspended. That person would rely on that information and drive, only to be arrested by law enforcement who is provided with other information. The lack of accuracy could lead to false arrests and law suits against DOL.

Lakewood Police first in state to be permitted to draw blood from DUI suspects

City of Lakewood Police recently announced that a number of their officers have received certifications so the police officer (rather than a nurse at a hospital) can draw blood from a DUI suspect. One may wonder how, legally, a police officer can forcibly take a suspects blood against their will? RCW 46.61.506(5) defines who may take a blood draw following a DUI arrest and states the blood draw may be “performed only by a physician licensed under chapter 18.71 RCW; an osteopathic physician licensed under chapter 18.57 RCW; a registered nurse, licensed practical nurse, or advanced registered nurse practitioner licensed under chapter 18.79 RCW; a physician assistant licensed under chapter 18.71A RCW; an osteopathic physician assistant licensed under chapter 18.57A RCW; an advanced emergency medical technician or paramedic licensed under chapter 18.73 RCW; until July 1, 2016, a health care assistant certified under *chapter 18.135 RCW; or a medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW.” So, anyone on earth may conceivably perform the blood draw, so long as they meet the requirements under the statute. Lakewood Police indicate that they have received a $50,000 grant from the Traffic Safety Commission that was used to allow six officers to obtain medical phlebotomy certification through Bates Technical College and the state Department of Health.

While in theory, a person could voluntarily consent to a blood draw, or an exigent circumstance could exist that permits the blood draw without a search warrant. However, in reality, for most situations, the police must obtain a search warrant approved by a judge before they conduct a blood draw. In this day and age, this is not difficult for the police to do as judges are on call at all hours of the day. Once a search warrant is obtained, the police may take the blood draw regardless of cooperation from the suspect. They may strap the person to a table to do so, if necessary. Police typically choose to request a search warrant for a blood draw if a person refuses to submit to the less intrusive breath alcohol test (i.e. blowing into an instrument). However, even if a person submits to a breath test, police could still obtain a search warrant to  draw a person’s blood for a variety of reasons. For one, blood tests are generally viewed as a more accurate reading of a person’s blood alcohol level and only blood tests can detect drugs, such as marijuana, in a person’s blood.

As some have noted, just because one has obtained the proper certification to draw blood does not mean that a person is good at it. Anyone who has ever provided a blood sample at a hospital can appreciate a technician, who takes blood samples all day long, and is good at finding a vein and drawing blood with minimal discomfort. Also, it seems only a matter of time before a DUI suspect claims the Lakewood officer who drew their blood screwed up in some way, causing damages, and sues the officer and City of Lakewood for damages. For now, City of Lakewood seems willing to take this risk because allowing officers to take blood will speed up the entire DUI arrest process.

Court upholds prosecutors’ ability to use a breath test refusal as evidence of guilt in DUI trials

Shortly before Christmas, the Washington Supreme Court decided State v. Baird (consolidated with State v. Adams), which upheld the ability of prosecutors to argue that a person is guilty of DUI because they refused to take the voluntary breath alcohol test (BAC test). This was a big case in the world of DUI law. Had the court ruled for the defense, it would have completely altered the way DUIs are investigated and prosecuted in the State of Washington. The issue was important enough that the King County Prosecutor’s Office sought a writ of review from Superior Court while the cases were still pending in District Court, and the Superior Court sent the case directly to the Washington Supreme Court (skipping the Court of Appeals).

The defense argument relied on two cases, the US Supreme Court case Missouri v. McNeely and the Division I case State v. Gauthier. In McNeely, the court ruled that with advancements in technology, the police must get a warrant (or consent) in order to take a blood sample (not breath sample) in a DUI investigation. The old argument was that it takes too long to get a warrant, and that this, therefore, is an “exigent circumstance” allowing the search without a warrant. McNeely concluded smart phones and 4G internet negates this old argument. In Gauthier, the defendant refused to provide the police with a  voluntary DNA swab, and the prosecutors used that refusal to convict the defendant of rape at trial. On appeal, the court held that since the police did not have a warrant for the DNA swab, the defendant had a constitutional right to refuse to consent to the police’s search (providing a DNA swab for testing is a search). And because the defendant was exercising a constitutional right by refusing the DNA swab, it is not fair for prosecutors to argue that he is guilty because he exercised his rights.

The defense in Baird argued that drivers arrested for DUI had a constitutional right to refuse the breath test, just like a person has a constitutional right to refuse to let the police enter and search their home without a search warrant. Just like Guathier, it would not be fair to use the refusal to take the breath test as evidence the driver is guilty of DUI.

This argument makes logical sense, and three of the nine Supreme Court justices agreed. However, if the court ruled for the defense, it would make investigating DUIs more costly and difficult. If the defense prevailed, police could still request breath tests, but if a driver refused, the jury would not be informed of this fact and the prosecutor would have to rely on other evidence to prove impairment (driving, performance on the field sobriety tests, ect.). Police can always request a search warrant to take a blood sample to prove blood alcohol level. While advancements in technology make requesting a warrant for a blood sample a more cost effective route, it is not as easy and quick as a breath test. So it is not surprising the court’s majority wanted to find some way to uphold implied consent law’s ability to coerce drivers into taking the breath test.

If there is an exception to the warrant requirement, such as an exigent circumstance or search incident to arrest, then the person does not have a constitutional right to refuse the search and therefore, the refusal to consent to the search can be used against the person. So what warrant exception could the court use to justify a search (i.e. a breath test) in a DUI investigation?

The State tried the same failed logic rejected by the McNeely decision; that dissipation of alcohol in the blood makes the delay in obtaining a warrant impracticable in DUI cases. As in McNeely, the court rejected this and ruled that the dissipation of alcohol in the blood was not an exigent circumstance to justify a breath test without a warrant.

Needing another exigent circumstance to hang their hat on, the court relied on the recent Supreme Court decision Birchfield v. North Dakota, which upheld North Dakota’s and Minnesota’s increased penalties for breath test refusal. Birchfield also held that a breath test is a valid search incident to arrest under the 4th amendment of the US Constitution. A search incident to arrest is a valid warrant exception and as noted above, if the State can establish a valid exception to the warrant requirement, a person has no right to refuse the search and refusal to consent to the search can be used to establish guilt. The court also ruled that in exchange for driving in Washington, drivers agree and have notice that their refusal to take a BAC test after being arrested for DUI will be used against them at trial.

The dissent in Baird agreed that a breath test was a search, that the dissipation of alcohol in the blood is not an exigent circumstance in breath tests cases, that Gauthier is still good law, and that prosecutors cannot use a refusal to consent to a search if the person has a constitutional right to refuse. However, the dissent disagreed that Birchfield’s holding that a breath test is a search incident to arrest is binding on Washington because Birchfield was analyzing the US Constitution where as Washington’s Constitution’s offers greater privacy protections.

The end result is that breath tests are considered a search requiring a warrant, but that the search incident to arrest exception to the warrant requirement applies requiring breath tests following all DUI arrests. So if a driver refuses to submit a breath test, the prosecutor can continue to tell the jury that only a guilty person would refuse a breath test.

DOL proposes new rule creating binding “significant decisions”

The Washington State Department of Licensing (DOL) handles administrative license hearings stemming from several scenarios, including administrative license suspension hearings following DUI arrests. You can read more about these DUI administrative license suspension hearings on my other website. DOL can modify the rules of these DUI administrative license hearings by proposing new rules and taking into consideration comments from the public. Recently, DOL has proposed one such rule of interest to DUI defense attorneys. Currently, when a person arrested for DUI (the petitioner) requests a DUI administrative license suspension hearing, and pays the $375 fee, their case is assigned to one of eighteen DOL hearing examiners. Technically, a DOL hearing examiner does not need to be an attorney, but most are. The petitioner can subpoena the police officer if they want, and submit other evidence. The DOL hearing examiner reads the police report, takes into consideration evidence submitted by the petitioner, makes a written decision, and mails the written decision to the petitioner. The hearing is typically conducted over the telephone. If the petitioner loses the hearing (which is most often the case), the petitioner can appeal the written decision to Superior Court and the Superior Court Judge has the power to either or affirm or overrule the DOL hearing examiner’s decision.

DOL has proposed a new rule, WAC 308-104-350, which would allow anyone to recommend that a DOL hearing examiner’s written decision be deemed a “significant decision.” If a ruling is deemed a significant decision, it would be indexed and made available to the public. The idea being that one could read through the significant decisions and get an idea of how DOL hearing examiners rule on a particular legal issue. None of this part of the rule is particularly controversial. What is more controversial is that under the proposed a new rule, WAC 308-104-350 subsection (7), the significant decisions would be binding authority in any future hearing. In other words, once a significant decision is made and categorized on a particular legal issue by one hearings examiner, that ruling would be binding on all other hearing examiners. The argument against this rule is that if the legal issue is important to your case, you would be stuck with the ruling made by another hearing examiner on a case you are not a party to and did not have a chance to present argue on. Of course, if you believe the significant decision ruling is legally incorrect, you could always lose the DOL hearing and then appeal the matter to Superior Court. If passed, it appears this rule is an attempt by DOL to make it easier for hearing examiners to rule against drivers challenging their administrative license suspension. The rule is currently pending public comment.