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Horizontal Gaze Nystagmus Can be Challenged

Posted Tuesday, July 18, 2017 by Andrew Charles Huff

The Horizontal Gaze Nystagmus or HGN Test is a nationally-recognized test used by police on those suspected of Driving Under the Influence (DUI). Officers examine a person’s eyes for any evidence of “Nystagmus,” or a slight jerking of the eyeballs. Although there are a number of other causes of Nystagmus, alcohol is one of them.

The majority of states including Washington recognize that the Horizontal Gaze Nystagmus (HGN) test is scientific evidence, which generally require expert testimony along with testimony the test was administered correctly by the officer. The case of State v. Baity is the primary decision in our state which limits the application and ultimate use of this test in any trial.

But whether the issue is admissibility or weight, the crucial issue in most DUI trials is whether the test was administered in accordance with the National Highway Traffic Safety Administration (NHTSA) guidelines for HGN. One study observed that the HGN test was administered in the field incorrectly over 90 percent of the time. Therefore, it’s critical to know and understand the NHTSA guidelines and requirements for a successful challenge to this test. I have never tried a case involving the HGN without knowing and having an actual copy of the NHTSA Instructor and Student Manuals from the Standardized Field Sobriety Testing Course. In both trial and even Motion Hearings challenging the evidence, I have literally brought out the manuals and flipped to the relevant pages when questioning the arresting officer. Strict compliance with the NHTSA protocol and requirements is required. Without strict compliance, the validity is compromised and the results are functionally meaningless.

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Wheels off roadway-Enough for a traffic stop?

Posted Monday, July 10, 2017 by Andrew Charles Huff

Does a police officer have grounds to stop a driver who drove with two wheels over the fog line for approximately 200 feet when traffic began to slow? Washington Appellate Court -Division 1 considered that question in in State v. Kocher and answered “Yes,” that such a stop was valid and Ms Kocher was subsequently arrested for Driving Under the Influence.

In challenging the stop, the defense argued that driving over the fog line for this distance was insufficient to establish reasonable suspicion under RCW 46.61.140, which requires that tires remain within the lane “as nearly as practicable.”
But the Court agreed with the State and found that RCW 46.61.670, entitled “Driving with wheels off roadway,” applied in this case where it is undisputed that Kocher operated the wheels of her vehicle over the fog line, off of the roadway.

So the dispute between the parties centers on which of these two statutes controls whether reasonable suspicion exists to initiate a traffic stop exists under these undisputed facts. Kocher argues that RCW 46.61.140 controls. The State maintains that RCW 46.61.670 controls. The Court agreed with the State and found the stop to be lawful.

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What is SCRAM?

Posted Wednesday, July 5, 2017 by Andrew Charles Huff

In certain cases involving alcohol such as Driving Under the Influence charges, a judge can require defendants to wear what is called a SCRAM device while their case is pending. “Transdermal alcohol monitoring” is a technology that permits the detection of alcohol as it passes through the skin as it is eliminated from the body. The results are then monitored and reported to court officials. There are two primary devices being used for this monitoring and one is called the Secure Continuous Remote Alcohol Monitoring (SCRAM). This SCRAM device has been used longer and by more courts at this time. The SCRAM device consists of an ankle bracelet that measures transdermal concentration, stores data, then uploads the data to a modem that transfers data to computers monitored by the vendor. This information is then used to generate reports and alerts if alcohol is detected.

These somewhat bulky-looking bracelets are designed to prevent removal or tampering and any attempt to do can be detected by the vendor. This device has evolved over the years and the current version is smaller and slightly less bulky than its predecessor.

If you are required to wear this device and have a pending violation, our office can mount several challenges to positive readings such as Sweat/Blood Partition Ration and Non-Specificity for Ethanol.

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I just got arrested for a DUI. What happens next?

Posted Friday, June 30, 2017 by Andrew Charles Huff

If you find yourself in this position, there are two procedures that you will need to stay on top of.

FIRST: Your License Suspension and Hearing. Assuming you have provided an officer with a breath test of .08 or greater OR refused this test, you have only 20 days to request a hearing with the Department of Licensing to challenge a potential suspension to your license. You face a potential license suspension of 90 days for a first offense, a year for refusing a breath test and potentially longer depending on prior suspensions. This is conducted under the authority of our Implied Consent laws in the state.

If you would like to challenge this suspension, fill out the Hearing Request Form provided by the arresting officer or obtain one from the DOL website. My firm represents you in this telephonic hearing normally conducted in my office. During this hearing, the Hearing Examiner will review the arresting officer’s documents and any other information provided by either side. The issues considered are whether the officer had grounds to conduct a traffic stop, place you under arrest and whether the breath testing procedure was conducted properly.

SECOND: Your Criminal Charge(s): Immediately after a DUI arrest, the officer will transport you to the station, read you your Implied Consent Warnings, which inform you what your rights are and potential penalties of either having a breath test over the legal limit or refusing to take one.

Under Washington law, a person commits the offense of Driving Under the Influence if the person drives a vehicle while the person:
a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person; OR b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; ORc) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.

You must attend your court appearance or a bench warrant will be issued for your arrest. It is important to try and have an attorney representing you even at the Arraignment Hearing because many times a judge will impose “conditions of release.” These conditions can include bail, abstinence from drinking, installing an ignition interlock device or more.

Call me for more information at 206-729-3477 to further discuss your case.

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The History of U.S. Blood-Alcohol Level Regulations

Posted Thursday, June 29, 2017 by Andrew Charles Huff

New York first outlawed driving under the influence of alcohol in 1910. However, blood-alcohol level regulations were not introduced until the 1930s.

The Early Laws

After New York’s prohibition against intoxication, many other states followed suit. However, these laws were vague, with no specific legal limit to define what constituted an impaired driver.

Invention of a Blood-Alcohol System

With the repeal of prohibition, an Indiana University professor of toxicology and biochemistry created a device in 1936 that could determine blood-alcohol concentration, using a balloon filled with a chemical solution. When a person inflated the balloon, the air within would change color if alcohol was present. By 1938, the legal blood-alcohol limit was set at 0.15 in most places, supported by research from the American Medical Association and the National Safety Council.

Introduction of the Breathalyzer

In 1953, the more accurate Breathalyzer was invented by a university professor and retired police captain. Like its predecessor, this device could also determine alcohol concentration using the breath, in combination with chemical oxidation and photometry.

Modern Regulations

When Mothers Against Drunk Drivers was created in 1980 to bring awareness to drunk driving deaths, the attitude toward and penalties for DUI were relatively lax. The organization pushed for tougher drunk driving penalties as well as legislation passed in 1984 raising the drinking age to 21.

Washington Laws

In Washington, current law mandates a license suspension following a DUI. Drivers may request a hearing, scheduled within 60 days of the arrest, at which the individual and his or her DUI attorney can contest the suspension. If the suspension is upheld, licenses are typically suspended for 90 days for a first offense and up to a year for a second offense. For those drivers who refuse to have their BAC measured with a breathalyzer, the license suspension can range from a year for a first offense and more for the second offense, so it is especially important in these cases to retain a DUI attorney.

Additionally, a DUI conviction can carry fines up to $5,000, jail time for up to a year, and other penalties. There are many nuances to DUI penalties that can be taken into consideration; this is why you need an experienced DUI attorney on your side to understand

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