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Vacate Marijuana Conviction in Seattle? Not So Fast

Posted Sunday, November 4, 2018 by Andrew Charles Huff

Recently the Seattle City Attorney and the Mayor announced that the City would vacate the conviction records for hundreds of misdemeanor marijuana convictions and has petitioned the Municipal Court directly to take this action. One reason is the recent legalization for persons over age 21 in our state. However, it’s important to note that not all misdemeanor marijuana convictions in Seattle Municipal Court will be vacated. This has led to some believing their records have been cleared but in reality they have not been.

Vacating a misdemeanor conviction is clearly laid out in RCW 9.96.060 and the Seattle City Attorney cannot change these rules. Any person who has a misdemeanor marijuana conviction in Seattle Municipal Court who does not qualify under the law cannot have their conviction vacated.

The eligibility requirements to vacate a prior conviction are listed in RCW 9.96.060. A person may not have the record of conviction vacated if any one of the following are present:

1) The person has a pending criminal charge in any court.2) Less than three years have passed since the person completed the terms of sentence, including payment of financial obligations.3) The person has been convicted of a new crime since the date of conviction.4) The person has vacated a prior conviction.5) The person is either currently subject to a DV protection order, no-contact order, anti-harassment order, or civil restraining order, or has been subject to such an order in the last five years.

Since marijuana became legal in our state, the Legislature has considered changes to the laws governing vacating convictions to allow all misdemeanor marijuana convictions. But these attempts have gone nowhere and we are currently stuck with the law described above. But the City Attorney’s actions should begin the needed dialogue for changes to occur.

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How Radar Measures Speed

Posted Friday, October 26, 2018 by Andrew Charles Huff

If you’ve ever been pulled over for speeding, you know that your vehicle speed was probably measured by either a laser or radar Speed Measuring Device (SMD). Most police agencies in the state use both types of technologies to determine speed.

How “Radar” Really Works

RADAR stands for Radio Detection And Ranging. It is a general term for the process of determining the range, angle, or velocity of objects. Modern traffic radar uses the Doppler effect, which is an increase or decrease in the frequency of waves traveling between an observer and an object.

An example of the Doppler effect in everyday life is when you hear a high-pitched ambulance siren approaching, and then it gets lower-pitched when driving away from you. The Doppler effect doesn’t just apply to sound. Light also travels using wavelengths and this is how officers measure speed.

How do Police Use Radar for Speed Testing?

When measuring for speed, an officer will typically use an SMD to direct a beam of light toward an object. The SMD measures the time it takes for the beam to be reflected back to the device. This split-second measurement is incredibly precise, and estimates the object’s speed.

If an officer is stationary sitting in their patrol car, they will aim the SMD at the vehicle to measure the speed. If the officer is moving while using the SMD, the device will measure the difference in speed between the moving police or patrol car and the suspect vehicle. The device will then calculate the true groundspeed of the suspect vehicle.

Vehicle speed can also be measured and enforced by a stopwatch or GPS mapping system in overhead planes.

Every SMD used by law enforcement is tested and certified for accuracy at least once every two years.

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The Draeger Alcotest 9510 Breath Machines-A History of Problems

Posted Wednesday, October 10, 2018 by Andrew Charles Huff

Many know by now that our state has now implemented the new breath-alcohol testing machine Draeger AlcoTest 9510 to replace its aging fleet and DataMaster machines that have been used for the past 30 years. However, this device illustrates the latest case of technology having real life consequences on those accused of crimes. This is because these machines have raised significant issues about their source code, calibration process, law enforcement agencies, and the German manufacturer of the Draeger.

Draeger Aloctest 9510

A person arrested for DUI in Washington will most likely be asked to submit to a breath test on the new Draeger. What was shocking to learn was that State Toxicologist Fiona Couper had sent an email in early 2009 stating that the State should “throw caution to the wind” and deploy the Draeger without independent testing. This “throw caution to the wind” approach doesn’t encourage confidence when deciding on a machine that could add to the fate of so many citizens.

The dispute began 10 years ago when Washington state police awarded Draeger, a German medical technology maker, the contract to sell the Alcotest 9510 across the state. Two experts later wrote in a preliminary report that they found flaws in the source code that could produce inaccurate breath test results. Soon after, these experts presented their early findings to attendees at a conference for defense lawyers. However Draeger said this was a violation of a court-signed protective order the experts had agreed to, so the company threatened to sue. Due to the lawsuit, the research and final report was never completed. In response, Draeger claimed the company was protecting its source code and intellectual property, not attempting to hinder research.

This initial report revealed several issues in the code that they said could impact the result of an alcohol breath test. The Alcotest 9510 uses two sensors to measure the alcohol content in a person’s breath sample. An infrared beam measures how much light goes through the breath, while a fuel cell measures the electrical current of the sample. If the results of the two samples are too far apart, the test will be rejected. However, this report said that under some conditions the machine can return an inflated reading that might push a person over the legal limit. The report also uncovered issues with the way the device adjusts for the temperature of a person’s breath.

If you have been arrested for Driving Under the Influence, call my office at 206-729-3477 so we can discuss your case today.

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DUI's Can be Reduced to These Offenses

Posted Friday, September 28, 2018 by Andrew Charles Huff

If you are one of many folks who have been arrested for Driving Under the Influence (DUI), it’s critical that you speak with a DUI attorney immediately, as there could be specific timelines you need to be aware of. As a criminal defense attorney, I can make sure your rights are protected during an investigation. Part of my representation is to fully investigate any charge against you, review the evidence and discuss what your options are. This could include contesting the evidence, negotiating a resolution to a lesser count or a full dismissal.

Many charges for Driving Under the Influence can be reduced to a lesser offense and one that can be eventually removed from your record unlike a DUI. Some examples of a lesser amended charge from a DUI include: 1) Reckless Driving, 2) Negligent Driving-1st Degree, 3) Reckless Endangerment or 4) Negligent Driving in the 2nd Degree.

Reckless Driving

“Reckless Driving” is defined by driving in “wanton and willful disregard for the lives or property of others” and is a gross misdemeanor. The maximum jail time for any gross misdemeanor is 364 days and a fine up to $5,000. The Department of Licensing will also suspend your license for 30 days.

Compared to a Driving Under the Influence conviction, a Reckless Driving amended from a DUI is less serious. A “Reckless Driving” conviction does not carry mandatory jail time or a requirement of an Ignition Interlock Device (IID) unlike with a DUI conviction. The probationary period is usually less than for a DUI.

Negligent Driving in the First Degree

RCW 46.61.5249 criminalizes driving a vehicle in a manner that endangers other people or property while exhibiting the effects consuming alcohol or drugs. A “Negligent Driving in the First Degree” is a simple misdemeanor punishable by up to 90 days in jail and a $1,000.00 fine. Also, there is no license suspension penalty for this charge.

Reckless Endangerment

A “Reckless Endangerment” conviction is a gross misdemeanor and is defined as “recklessly engaging in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person.” This charge is not a designated traffic-related offense as it can be committed without the use of an automobile. However, I can occasionally negotiate this gross misdemeanor charge over a “Reckless Driving” conviction for one reason…it doesn’t carry a 30-day license suspension.

Negligent Driving in the Second Degree

This is a traffic infraction and not a criminal conviction. Depending on the facts of your case, it’s always possible to negotiate your criminal case down to an infraction but can be challenging to do so. However, I have on several occasions been able to do this when my client’s breath alcohol test level was just below the legal limit.

Whether a Driving Under the Influence can be negotiated to a lesser offense depends on many things, including the amount of alcohol or drugs in your system, whether you have any prior DUI convictions, any accidents and whether you had passengers in your vehicle. Many times, I am able to identify evidence that is subject to suppression by a court because it was obtained improperly, testing procedures were not followed or there were simply too many problems with the quality of it.

If you are arrested for Driving Under the Influence or any other charges, call me directly at 206-729-3477 and let’s discuss your case.

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The Draeger AlcoTest 9510-Here’s What You Need to Know

Posted Wednesday, September 26, 2018 by Andrew Charles Huff

Washington rolled out their brand new breath-alcohol machine approximately five years ago with mixed reviews. The Draeger-AlcoTest 9510, a German-manufactured device analyzes a person’s breath for police to estimate the alcohol level in a person’s blood. Based on our DUI laws, anyone who blows a .08 or above within two hours of driving is presumed to be driving under the influence. However, a prosecutor must prove beyond a reasonable doubt this issue and recent developments in DUI defense strategies have created reason to doubt the instrument and its results.

How does the Draeger 9510 work?

The Draeger 9510 runs on software that the state has yet to properly validate because the manufacturer has not been forthcoming with this information. The software controls the data when the instrument is used to collect and test a breath alcohol sample. Every quarter second, sensors check and record flow rate, volume, breath alcohol level and time to ensure the minimum criteria for a breath sample is achieved.Washington DUI law requires that the instrument only test “end expiratory air” – the last portion of air exhaled by the driver into the Draeger. The technical manual further clarifies that the minimum criteria for a valid sample requires at least 1.5 liters of breath exhaled and that the individual blow for at least five seconds. Blowing should only stop after the arresting officer notices the quarter-second readings of breath results are starting to plateau, meaning they’re not increasing at a rate greater than .04/second.

The instrument plots a graph of the breath result data for the officer and displays it on the built-in screen. When the graph starts to plateau, and the officer sees that at least five seconds have past and at least 1.5 liters of breath volume has been blown into the instrument, they have collected their first valid sample.

Valid vs. non-valid sample

A valid sample creates a graph that is always rising. Any dip in results followed by a sharp rise indicates the presence of “mouth alcohol” or other interference which makes the result invalid.

Mouth alcohol refers to alcohol not coming from a person’s breath, but something else in the surrounding or ambient air or a contaminant in the driver’s mouth, like food particles, or other items that negate the validity of the test according to the Draeger technical manual. Graphs that decrease followed by a sudden increase indicate an invalid test, and the jury would have plenty of reason to doubt the breath result based on this data.

Call my office to discuss this issue and more at 206-729-3477.

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