Call (425) 488-8481 for a free Washington DUI case evaluation.

Some of the areas to be patrolled have been identified by the Mukilteo Police Department and include:

According to the Mukilteo Beacon: “The full length of SR-525 (also known as the Mukilteo Speedway) and the full length of Harbour Pointe Boulevard will be part of the ongoing efforts as well due to the high volume of traffic and past collisions and complaints.”

If you are travelling through the Mukilteo area over the next few weeks, please remember that DUI patrols are out in full force looking for drunk drivers. You can (and very well may) be arrested for DUI een if you are under the legal limit of .08%. The only safe way to avoid a drunk driving charge in Mukilteo, or anywhere else, is not to drink and drive!

There are clearly merits to the program and the costs my be justified. There is no doubt DUI enforcement makes the roadways safer. Every year there are sensational events in the news regarding DUI drivers and drunk driving should be taken seriously.

The problem I have with the Target Zero campaign is not with DUI enforcement in general. Instead, it is with playing loose with statistics to justify huge expenditures and the resulting persecution of drivers with very low BAC levels.

The State Patrol claims that Target Zero has resulted in 70 fewer deaths. This is based on 133 deadly crashes in Pierce, King and Snohomish counties over the past year, or 70 fewer than the average of 203 a year in the previous five years. However, this is all deadly traffic related crashes. No evidence is offered as to what the reduction in DUI caused crashes is. Studies conducted by law enforcement put the average of fatality accidents that are DUI-related at about 32% (or 22.4 less deaths). (As a side note: the term ‘alcohol-related accidents’ as used in law enforcement materials usually refer to any accident where someone involved was above .01% BAC. This includes drivers not at fault in the accident, passengers and drunk pedestrians.)

Coincidentally, there was a change to Washington’s cell phone law and a number of other special enforcement projects, such as click-it-or-ticket, during this time. So how do we know that Target Zero is responsible for any of the “70 lives saved?” We don’t, but it sure sounds good. The problem is that throwing out statistics without any real validity is that it clouds any honest debate about whether the costs are worth the results or whether we could save a lot more lives by spending the money elsewhere (such as speeding enforcement). If their statistics are correct they have spent almost $268,000 for each life saved. If they are not, they have spent lots more.

Washington State Patrol also reports that Target Zero is responsible for 3400 DUI arrest in the last year. What is not included in this statistic is the BAC percentage (or drug level) of those arrested. As a DUI, attorney in Snohomish County I have seen a large number of DUIs below the legal limit and many more in the .08%-.09% BAC range. Usually, they are initially stopped for non-DUI related infractions, such as failure to signal a lane change, taillights/headlights out, expired tabs, speeding, or other minor traffic violation. These folks rarely exhibit any signs of actual impaired driving. However, these are not the people typically creating DUI related accidents or deaths (most fatal accidents caused by DUI drivers involve someone with a BAC greater than .15% who have prior DUIs.) These are otherwise law-abiding citizens that monitor how much they drink and are responsible about their choices of when to drive.

Thus, while DUI enforcement is a worthy effort it is debatable whether it actually saves lives or whether the increased costs and the persecution of ordinary citizens is worth all of the time and money spent.

July 2011 UPDATE: The Washington State patrol continues the propaganda effort by claiming that the number of vehicle related fatalities involving someone above the legal limit (~30%) is greater the number of of fatality accidents involving speeding (~40%). Only in the world of “law enforcement science” is 30% greater than 40%. These numbers are even more skewed when you realize that pedestrian statistics are included. Pedestrians can be above the legal limit, they cannot be speeding.

• Convictions for DUI, Physical Control, alcohol-related offenses, Deferred Prosecutions, Vehicular Assaults and Vehicular Homicide Convictions remain on your driving abstract for 99 years.
• Convictions, bail forfeitures and committed findings for traffic tickets and other driving related offenses are kept for five years from the date of conviction/adjudication.
• DOL suspensions, revocations and disqualification records are maintained for 5 years from the end of the suspension.
• Failure to respond or pay to a traffic infraction (FTA) is reported for at least ten years (FTA expires after 10 years, but the court has the option to renew) or until the outstanding balance is paid.
• Commercial motor vehicle convictions, forfeitures of bail, or court findings that an infraction was committed appear on your driving abstract for 55 years from the date of conviction or adjudication.
• Collision reports, including involvement, fault, number of vehicles involved, whether they were legally parked or moving, whether the vehicles were occupied at the time of the collision, and whether the collision resulted in any injury or fatality are kept for 5 years from collision date for non-commercial vehicles and 10 years if a commercial vehicle was involved.

The information that can be reported is controlled by Washington law and depends on the person requesting and the reason for the request.

• A complete driving record, including all of the information above, can be obtained by the person named on the driving record, attorneys, law enforcement and government agencies and includes all convictions, violations, collisions, suspensions, revocations, and disqualifications, deferred prosecutions and failures to appear (FTA)
• Your insurance company can access your “3-year noncommercial insurance abstract” which includes all non-commercial convictions, violations, collisions and FTAs from the previous 3 years.
• For commercial driving insurance policies DOL will report to the insurance company (and their agents) the past 3 years’ commercial driving convictions, violations, collisions and FTAs.
• Your life-insurance company is entitled to all the information regarding the past 3 years of commercial and noncommercial driving listed above
• Employers and potential employers, considering hiring you for a driving position, can access all of the information maintained by DOL, including ALL convictions, violations, collisions, license suspensions, deferred prosecutions and FTAs.
• If you are, or are attempting to be, a school bus driver or volunteer vanpool driver (or if you are under 18 or over 65, and driving as a volunteer for an organization) the employer or organization, like above, is entitled to your entire driving abstract from DOL.

The scope of information maintained and reported demonstrates how important it is to address every DUI, speeding ticket or driving related incident head on. Beyond the obvious consequences of jail time and fines, DUIs and traffic infractions can have consequences that go far beyond the conviction. These negative effects can haunt one for years (or even a lifetime). If you are charged with a DUI or traffic infraction get legal help today.

“Hailey’s Law,” named after a driver who had a head-on collision with a drunk driver in 2007, is intended to make sure drivers have ample time to sober up before they get behind the wheel again. I have seen a number of cases where a driver got two DUIs in the same night (sometimes from the same officer). As such, this law may have the unintended effect of saving some drunk drivers from themselves as well.

There are some exceptions to the new Washington DUI mandatory impound law. Most importantly, if the car belongs to somebody who was not in the vehicle at the time of arrest, the owner would be allowed to pick up the vehicle before the 12 hours are up.

The legislation does not include the DUI checkpoints advocated for by the Washington State Patrol. (Checkpoints are illegal under the Washington State Constitution.) The major changes to Washington’s DUI laws appear to be as follows:

Currently, to be charged with felony DUI a driver must have four prior DUI convictions with 10 years or a prior alcohol-related vehicular assault or vehicular homicide. Under the new law, “prior offense” will now include all vehicular assault or vehicular homicide convictions if the original charge was based on driving under the influence. This means that a conviction for a non-DUI vehicular assault or vehicular homicide could result in felony DUI charges should the driver later be arrested for DUI. In addition, if a driver has been convicted of felony DUI any subsequent DUIs will also be felonies regardless of the time period in between. As a King County deputy prosecutor put it, the new law means “Once you’re a felony DUI, you’re always a felony DUI.” The new law would also disqualify “good time” from being applied to any sentencing enhancement for DUI vehicular homicide. Good time generally results in a 1/3 reduction in sentence.

HB1789 also makes some changes to the Interlock Ignition Device (IID) requirements associated with a DUI-related conviction. Beginning from the date of the incident, DOL will give day-for-day credit for any period of time a driver has the IID installed prior to conviction. Anyone convicted of alcohol-related Reckless Driving or Negligent Driving in the First Degree, who also has been convicted of a prior DUI offense in the 7 years prior (includes charges originally filed as DUIs and amended to Neg 1 or Reckless Driving), to install an ignition interlock device on their vehicle for 6 months. Courts will now be required to order any person participating in a deferred prosecution program for a DUI to have an IID installed on all motor vehicles operated by the person.

The most significant portion of this legislation may be the establishment of “DUI Courts,” under RCW 2.28. The idea appears to be the creation of something similar to drug court “designed to achieve a reduction in recidivism of impaired driving among nonviolent, alcohol abusing offenders, whether adult or juvenile, by increasing their likelihood for successful rehabilitation through early, continuous, and intense judicially supervised treatment; mandatory periodic testing for alcohol use and, if applicable, drug use; and the use of appropriate sanctions and other rehabilitation services.

Most of the bill will take effect on September 1, 2011.

Stephen R. Matthews, Phillabaum, Ledlin, Matthews & Gaffney-Brown, Michelle D. Szambelan, Spokane, for Appellant.Kelley J. Sweeney, Olympia, for Respondent.

Howard Lytle appeals the Department of Licensing’s (DOL) revocation of his driver’s license under RCW 46.20.308 (the implied consent law) for his refusal to take a breath analysis test to determine his blood alcohol content.   Mr. Lytle contends the DOL revocation hearing violated his due process rights because he was denied a meaningful opportunity to be heard.   We agree.

The majority of the underlying facts are undisputed by the parties.   Late in the evening of June 28, 1996, off-duty Spokane County Deputy Sheriff T. Greenfield, heard a vehicle skid and observed the vehicle resting across both lanes of traffic on Hastings Road.   The driver repositioned the vehicle and continued driving.   Deputy Greenfield then observed Washington State Patrol (WSP) Trooper J.F. Love stop the vehicle.   Allegedly, Trooper Love questioned the driver, who did not answer the questions.   Trooper Love observed the driver’s eyes to be watery and bloodshot, that the driver had poor hand-eye coordination and that a strong odor of intoxicants was evident.

Another WSP officer, Trooper Robert Bohling, arrived at the scene to assist at the request of Trooper Love.   Upon his arrival, Trooper Bohling saw Trooper Love talking to the driver who was the only occupant of the stopped vehicle.   Trooper Bohling placed Mr. Lytle under arrest for driving under the influence (DUI) of intoxicating liquor based on his failure to pass field sobriety tests.

Trooper Bohling transported Mr. Lytle to the station where a breath testing machine was located.   Mr. Lytle was read his constitutional rights;  he stated he understood them but refused to sign his acknowledgment on the form.   Next, Trooper Bohling read Mr. Lytle the implied consent warning informing him of his right to refuse to submit to the test and the consequences of such a refusal.   Again Mr. Lytle stated he understood but refused to sign his acknowledgment.   Mr. Lytle was asked on two occasions to submit to the breath test, refusing both times.   Trooper Bohling submitted to the DOL a Report of Refusal to Submit to Breath/Blood Test by Mr. Lytle.   The DOL issued Mr. Lytle a marked license.

Mr. Lytle timely requested an administrative hearing to challenge his license suspension.   Additionally, he requested that the DOL issue subpoenas for officers Love, Bohling and Greenfield.   The DOL complied with these requests.

Two of the three subpoenaed officers did not appear at the first scheduled hearing.   Only Trooper Bohling appeared at the hearing as ordered.   Trooper Love was not served because he had retired from the force and the WSP was unable/unwilling to provide information on how to locate him.   The hearing officer found Mr. Lytle had used due diligence in trying to serve the subpoena on Trooper Love.   Deputy Greenfield was properly served but did not appear.   Mr. Lytle requested a dismissal, which was denied.   A continuance was granted and the subpoenas were reissued.

Deputy Greenfield was properly served a second subpoena.   However, prior to the second hearing, he called to advise the parties he could not appear due to another court conflict.   Mr. Lytle was unable to serve new subpoenas on Troopers Love and Bohling and they did not appear at the second hearing.   Trooper Love remained unavailable due to his retirement.   The WSP refused to serve the second subpoena on Trooper Bohling because it did not reach them until five days prior to the hearing.1  As a result, Mr. Lytle was unable to cross-examine the officers.

Mr. Lytle again moved for a dismissal due to the unavailability of witnesses, which was again denied as improper.   Based solely on the certified written reports of Troopers Bohling and Love and RCW 46.20.308(8),2 the hearing officer sustained the DOL’s decision to revoke Mr. Lytle’s driving privileges for one year.

Mr. Lytle timely appealed the revocation to the Spokane County Superior Court, properly serving notice on the DOL.   The revocation was affirmed.   This appeal followed.

The implied consent law provides that a person who drives in this state is deemed to have consented to a test to determine the alcohol content of his/her blood or breath if arrested for suspicion of DUI.3  If the arrested driver refuses to submit to the testing procedure, his/her driver’s license will be revoked by the DOL.4

If a license is revoked based on a person’s refusal to submit to a testing procedure, that person has the right to request an administrative hearing regarding the revocation.   The scope of this hearing includes:  (1) whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle in this state while under the influence of an intoxicating liquor; (2) whether the person was placed under arrest;  and (3) whether the person refused to submit to the tests on the arresting officer’s request after being informed that such refusal would result in the revocation of the person’s privilege to drive.5  The result of this administrative hearing is reviewable in superior court, based on the administrative record.6

 Mr. Lytle contends his due process rights were violated when, at his license revocation hearing, he was unable to cross-examine the officers who had stopped and arrested him on suspicion of DUI.   Revocation of a driver’s license for a statutorily defined cause implicates a protectable property interest that must comply with due process.  Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971);  Gibson v. Department of Licensing, 54 Wash.App. 188, 194, 773 P.2d 110, review denied, 113 Wash.2d 1020, 781 P.2d 1322 (1989).   The State has the burden of proving the revocation of a person’s license complied with due process.  State v. Storhoff, 133 Wash.2d 523, 527, 946 P.2d 783 (1997).

In Flory v. Department of Motor Vehicles, 84 Wash.2d 568, 571, 527 P.2d 1318 (1974), our Supreme Court held that a license to drive may not be revoked without a hearing that satisfies the requirements of due process, including the right to confront witnesses.   See also State v. Whitney, 78 Wash.App. 506, 510, 897 P.2d 374, review denied, 128 Wash.2d 1003, 907 P.2d 297 (1995), which held that procedural due process is required before suspension of a driver’s license is effective.

Mr. Lytle timely and properly requested a hearing regarding his license revocation.   He maintains he was not given a fair hearing because he was not allowed to cross-examine the officers who submitted evidence against him.   We agree.

 Due process requires notice and a meaningful opportunity to be heard.  Whitney, 78 Wash.App. at 510, 897 P.2d 374.   The word “hearing” certainly implies that some type of oral presentation, or the introduction of some type of evidence, will be directed to one’s auditory senses.  Flory, 84 Wash.2d at 571, 527 P.2d 1318.   Yet, the 1995 amendments to RCW 46.20.308(8) now allow the sworn report and the complete police report to constitute prima facie evidence that the implied consent statute was complied with by the officer(s).   The DOL’s burden is then met.   The burden then shifted to Mr. Lytle to refute the prima facie evidence.

Under these facts, Mr. Lytle had to refute that prima facie evidence without the arresting officers’ presence.   He was unable to cross-examine the evidence used against him.   Trooper Love has retired and will apparently never be available as a witness.  RCW 46.20.308(8) specifically allows the DOL hearing officer to rely on the information contained in the sworn report and the police report as prima facie evidence that the statutory requirements of the implied consent law were properly followed.   Automatic de novo review by the superior court was eliminated in the 1995 amendments to the statute.7

Should the Legislature have taken away the procedural safeguard of de novo review on which courts have relied as a protection against due process violations?   This is a policy issue for the Legislature to address, if it is so inclined.   The statute says what it says and this court must enforce its plain meaning regardless of the public policy misgivings we may have with it.   If the statute produces unintended or unwanted consequences, the Legislature must amend it.

There are no due process protections afforded Mr. Lytle under these facts.   The case is reversed and dismissed.   As a result we need not reach Mr. Lytle’s separation of powers argument.

I respectfully dissent.   The certified written reports of Troopers Robert Bohling and J.F. Love are declarations permitted under RCW 46.20.308(8).   As such they are prima facie evidence that reasonable grounds existed to believe Howard Roy Lytle was driving while under the influence of intoxicating liquor, the officers complied with RCW 46.20.308, and that Mr. Lytle failed to submit to the required testing procedures.   Mr. Lytle does not dispute he refused to sign or give a breath test.   Indeed, Mr. Lytle offered no evidence whatsoever before the hearing officer.   Mr. Lytle made no offer of proof as to the missing officers’ expected testimony and did not request a continuance or seek aid in compelling witness attendance.   Through counsel, he merely requested a dismissal.   This is insufficient to overcome the Department of Licensing’s case.

The practical effect of creating a prima facie presumption is to satisfy the Department’s initial burden thus, shifting the burden to persons like Mr. Lytle to come forward with evidence to refute the prima facie evidence.   Because Mr. Lytle offered no evidence, the hearing officer properly went forward to decide the case on the evidence presented.   Although the statutory process may seem unfair to Mr. Lytle, the majority does not find it unconstitutional.   As to due process, Mr. Lytle failed to examine Trooper Bohling on the initial date for hearing, did not request a continuance to permit the attendance of witnesses on the second hearing date, and did not seek to compel attendance of witnesses by obtaining the aid of the court.   On the other hand, Mr. Lytle received notice of hearing and had the opportunity to be heard.   These are the core requisites of fairness.   Mr. Lytle points to no prejudice from further delaying and does not suggest the Department played any role in the officers’ absences.

Accordingly, I agree with the superior court and would affirm the Department’s revocation of Mr. Lytle’s driver’s license.

FOOTNOTES

1.  The local WSP district office has an internal policy that requires a minimum seven days’ notice for service of a subpoena on an officer.   The policy gives discretion to accept a subpoena with less than seven days’ notice if it is to the WSP’s benefit.   The policy was developed to avoid conflicts with the troopers’ work schedules and to ensure the highways are properly patrolled.

2.  RCW 46.20.308(8) states, in part, that a “sworn report or report under a declaration authorized by RCW 9A.72.085 [allows subscribed declaration in lieu of sworn statement] submitted by a law enforcement officer is prima facie evidence that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs, or both, ․ and that the officer complied with the requirements of this section.”

3.  RCW 46.20.308(1).

4.  RCW 46.20.308(7).

5.  RCW 46.20.308(8).

6.  RCW 46.20.308(9).

7.  See Laws of 1995, ch. 332, § 1, effective September 1, 1995.

KURTZ, J., concurs.

Mandatory reporting for suspected DUI with a child in the vehicle. SHB 3124 requires law enforcement officers to notify child protective services when a child under the age of 13 or under is present in a car being driven by a parent, legal custodian, or guardian who is being arrested for driving under the influence of physical control. If an officer believes that the child will be in imminent risk of harm, or there is no person properly authorized to take custody the officer is authorized to take the child into emergency custody.

Unauthorized use of cell phones while driving is a primary offense as of June 10, 2010. What this means is that an officer can now pull over drivers for talking on their cell phone or texting without using a hands-free device or texting while driving. (Previously the officer could only write a ticket for this infraction if he or she had stopped the vehicle for some other valid reason, but could not stop a driver simply for violating the cell phone statute.) Drivers with an instructional permit or intermediate license can no longer use a cell phone while driving at any time. There is an exception to this law when the driver is reporting illegal activity, summoning medical or other emergency help, or to prevent injury to a person or property. Why is this relevant to DUIs? Most DUI cases start as a stop for some type of traffic infraction, such as speeding or failure to use a turn signal. This provides one more reason for officers to legally stop vehicles and initiate DUI investigations. This law may also give officers authority to stop vehicles driven by drivers using hands free devices if they appear too young to have a regular license (although, this is obviously brings up lots of Constitutional issues).

New breath test machines are on the way. HB 2465 amends RCW 46.51.506, the statute governing when a breath test is admissible, to include the use of a dry gas external standard. This allows the State to start replacing the old Datamaster machines (no longer produced) with machines using dry gas technology, the Alcotest 9510 manufactured by German company, Dräger.

Deferred Prosecution administrative fee increase. The administrative fee that courts can charge for a Deferred Prosecution was increased to $250. Considering the cost of an IIL, probation and two years of treatment, this is still the least of one’s worries when entering a DP.

Interlock Ignition License (IIL) law updates. The most significant changes in DUI related legislation come in the area of IIL laws. Amendments to RCW 46.20.385(1)(a) extend the eligibility for an IIL to include drug-related DUI offenses, DUI-related vehicular assault and vehicular homicide. The “employment vehicle” exception is extended to include valets, mechanics and rental cars for “vehicles owned, leased, or rented by a person’s employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person’s employer as a requirement of employment during working hours. “

Under 2SB 2742, an individual must be given 45-days notice of DOL’s intent to cancel a IIL, instead of the 15 days previously required. Notice must also comport with all of the requirements of RCW 46.20.245 (directing how notice is provided and for the right to request an administrative hearing to challenge the cancellation). Also a driver whose IIL has been cancelled may apply for immediate reinstatement if they meet all of the requirements for an IIL.

As of January 1, 2001, before an IIL holder can remove an IID they will have to affirmatively establish that, within the four months prior to the request for removal, there was: (1) no attempt to start the vehicle with a BAC of 0.04% or higher; (2) no failure to take or pass a re-test; and (3) no failure to comply with required calibration, maintenance or repair of the IID.

The Washington Legislature also voted to change some of the requirements for courts when a driver is convicted of DUI. Courts are now required to order installation of an IID and application for an IIL for both drug and alcohol based DUI and Physical control convictions. The court may waive these requirements if the driver (1) does not operate a vehicle, (2) is not otherwise eligible for an IIL, or (3) lives out of state and an IID is not reasonably available. The requirement that the court order “other alcohol monitoring” when not ordering an IIL has been amended so that the court only need require this when also ordering abstinence as well.

Lowering the costs of Deferred Prosecutions courts will no longer be required to order the defendant to apply for an IIL per RCW 46.20.720(2).

Finally, IID installers must begin to use the newer fuel cell technology in lieu of the older T-cell technology. Companies that are currently using T-cell technology have five years to replace their equipment.

Mr. Jones drove slowly trough the perimeter two times. Because the vehicle had tinted rear windows, Deputy Nelson “flagged down” Jones to make sure the thief was not hiding in his back seat. Upon approaching the vehicle, and talking with Jones, Nelson became aware of a possible DUI when noticed a “strong odor” of alcohol coming from the vehicle.

Nelson continued his investigation of DUI by ordering Jones to exit the vehicle. Jones complied. Nelson testified that at that point he detected an odor of alcohol coming from Jones’s person. Jones denied having consumed any alcohol, but that the odor might have been due to cough drops or incense.

Nelson testified to the usual “tell-tale” DUI signs: slightly slurred speech and glassy red eyes. Jones seemed irrational and made inconsistent statements. He did not know which county he was in and he stated he “came to help” Nelson, but Nelson “was trying to hurt him.”

“If you are not intoxicated, prove to me you’re not intoxicated,” Nelson said as he repeatedly asked Jones to submit to roadside DUI field sobriety tests. Jones refused despite the Deputy’s persistence. After about 15 minutes of converstaion, Nelson arrested Jones for DUI.

At trial Jones’ motion to supress because the officer lacked probable cause to arrest him for DUI was denied and he was convicted. The Virginia Court of Appeals upheld the decision stating that a defendant’s refusal to submit to DUI field sobriety tests supports a finding of probable case beacuse it is evidence of his “conciousness of guilt.”

The Virginia Supreme Court, in JOnes v. Commonwealth, 2010 WL 143787, disagreed with the lower courts’ decisions. A refusal to submit to DUI field sobriaty tests can often be based on innocent reasons. Unlike flight, use of false names, or other deceptive acts, “a driver refusing to submit to a field sobriety test has not undertaken affirmative action to decieve or evade the police.” The decision may be based on physical limitations, dimished ability to communicate or a simply reluctance “to submit to subjective assessments by a police officer.”

The Court held that a DUI suspects refusal to submit to DUI field sobriety tests is not evidence of “conciousness of guilt.” However, refusal to submit to DUI roadside tests can be considered as one factor in determining probable cause to arrest for DUI. In this case, there was sufficient probable cause for DUI arrest.