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DUI “Checkpoints”-Not in Our State

Posted Friday, February 7, 2014 by Andrew Charles Huff

Most of us have been in that situation before…we are driving down the road and suddenly we see flashing lights in our mirror. Next is the sinking feeling in the pit of our stomach as we look for a place to pull over and hope our vehicle registration is current. But when this happens, our men or women in blue must have a reason to light you up and assert this authority. And we know what they are…speeding, expired tabs or other infraction, or something more serious like Reckless Driving.

Officers regulate traffic, advise motorists of hazards, investigate crime scenes, make arrests, anything else that is within the course of their duties as a law enforcement officer. But as agents of the State, police officers’ actions are governed in part by the US and Washington State Constitutions. Any action or restriction imposed upon us by law enforcement must be reasonable and constitutional.
We have a right as citizens to be free from unreasonable search and seizure. “Unreasonable” has been held to mean without “probable cause” or a legal basis to conduct a stop. For example, a police officer can stop you for speeding and write you a ticket. A police officer can stop a driver if he observes signs of intoxication while driving. A police officer cannot, however, stop a driver to simply check and make sure all is well. Officer Jones cannot pull one over for no other reason but to see “if” the driver “might” be showing signs of impairment.

Other jurisdictions that have tried these “DUI roadblocks” have run into constitutional challenges. A federal appeals court recently halted a sweeping set of changes to the New York Police Department’s practice of stopping and frisking people on the street, and in strikingly personal terms, criticized the trial judge’s conduct and removed her from the case.

Any discussion of trying to implement such “check points” in our state must always be met with absolute resistance. Our freedoms and privacies we currently enjoy must be protected, even simply driving down the street minding our own business. Once we give those up, we might never get them back.

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Sluured Speech-What Does it Really Tell us?

Posted Friday, October 4, 2013 by Andrew Charles Huff

As a criminal defense attorney who deals with folks accused of driving impaired, I routinely work with people who exhibit all kinds of different “signs” or clues that police officers are trained to look for in a DUI investigation. Common sense supported by scientific research tells us that when people have consumed enough alcohol to the point of being “impaired” by it, the human body can let us know in different ways. These signs include balance problems, coordination issues, confusion, becoming over emotional, just to make a few.

One clue that is well-known among most people and one we typically think about in a DUI context is a person slurring their speech. Slurred speech is a primary clue police officers are trained to look for in identifying those who have drank too much. The argument is too much alcohol can effect your ability to properly form words in a clear and coherent manner. In other words, slurred speech.

But what does slurred speech really tell us about whether someone is impaired by alcohol? Does a person who is speaking differently after being stopped by a police officer truly exhibiting a clue that suggests impairment? In all honesty, there is little evidence that this is symptomatic of intoxication, in large part because there are many other causes of speech issues. For example, consider the situation a person finds themselves in when stopped by a police officer, especially when they have consumed even a small amount of alcohol and are not impaired. Speech problems are largely attributed to stress, fear and just plain nerves, three common feelings experienced when in a DUI investigation. No matter how polite and friendly an officer might be, being stopped and investigated can be frightening. And a person reacts to fear in much the same way of being impaired…speech problems is one commonality. Think of how many times you have become tongue-tied or had a hard time getting your words out when in a scary or stressful situation.

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New DUI Laws

Posted Monday, August 19, 2013 by Andrew Charles Huff

New DUI laws

On July 18, 2013 Governor Jay Inslee signed into law ESSB 5912, a somewhat complex piece of legislation that makes vast changes to the laws governing Driving Under the Influence in our state. These extensive changes effect Ignition Interlock Device (IID) requirements, deferred and suspended sentences and adds marijuana language.

One of the most significant changes involves mandatory IID installation for a person with a prior DUI/Physical Control conviction. A person arrested for a DUI with a prior conviction will now be required to install an IID within five days after they are released from custody and must file proof. Some court administrators have publicly considered the impact on their courts from some of these new monitoring requirements,much as the mandatory ignition interlock requirements. Many courts could also see added costs, which many times comes along with increased monitoring.

ESSB 5912 also closes the door on a sentencing judges’ discretion to impose what is called a “deferred sentence” for someone pleading guilty to Driving Under the Influence. A “deferred sentence” allows a someone with a conviction to petition the court for a dismissal order to the charge if all sentencing conditions are met.

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"Smoke on the Water" - New BUI Changes Afloat

Posted Monday, June 17, 2013 by Andrew Charles Huff

The rock band Deep Purple in their classic hit wrote about making records on Lake Geneva before someone burned the place to the ground. Guitarist Ritchie Blackmore’s infectious and highly-recognizable riff can stir up even the remotest party animal deep within us all.

However, those who desire to light up a “fatty” and navigate our seas take heed…being under the influence of marijuana is still illegal if you operate a vessel, despite being newly legal. Boaters in our state can face criminal charges if their ability to operate a vessel is impaired by pot, similar to alcohol.

Washington’s new law legalizing the recreational use of marijuana allows folks to light up their joints, puff their pipes and inhale their weed without fear of arrest, with some restraints of course. For example, a person cannot smoke in public and can only possess under a specific amount. And while I-502 decriminalizes pot, boaters enjoying our states lakes, rivers and Sound while under the influence of drugs including marijuana can still face the same penalties of operating a vessel under the influence of alcohol.

The changes essentially reflect the language found in I-502 by adding “marijuana” to RCW 79A.60.040, the Boating Under the Influence law. Boaters are now prohibited from having a “THC concentration of 5.00 or higher as shown by analysis of the person’s blood made under RCW 46.61.506” within two hours of operating a boat. Although it has always been illegal under state law to operate a vessel while under the influence of any drug and alcohol, these recent changes specify the “per se” amount of marijuana a person is prohibited from having in their system while boating, analogous to a .08 amount of alcohol.Other changes to the BUI laws include what is referred to as “implied consent,” which essentially penalizes a boater arrested for BUI if they refuse either a breath test for alcohol or a blood test for drugs including marijuana. Under existing law, a boater suspected of BUI could refuse a breath test without any penalty if arrested for BUI. Unlike a driving a car under the influence, where a person faces a near-certain driver’s license revocation if they refuse a breath test, no similar consequence existed if a suspected of boating under the influence refused a breath or blood test. Until now, that is. The new law adds what is called “implied consent” language to RCW 79A.60.040, which provides that anyone operating a vessel on Washington waters is deemed to have consented to having their breath or blood tested for alcohol, marijuana or other substances. The law enforces “implied consent” by mandating anyone suspected of BUI who refuses a breath or blood test will be guilty of a Class 1 civil infraction, and subject to a monetary penalty of $1,000.

Those seafarers enjoying too much of the “green veggie matter” will also face stiffer penalties if convicted of BUI. The new law increases both the maximum jail time and maximum fines by changing the classification, or type, of misdemeanor for a BUI. Previously, a BUI charge was a “simple” misdemeanor, punishable by up to 90 days in jail and a $1,000 fine. The new law now classifies BUI as a “gross” misdemeanor, carrying maximum penalties of 364 days in jail and a $5,000 fine. These new changes to the law go into effect July 28, 2013.

So to all my mariner colleagues who might choose to inhale, take heed that too much can be costly. And when enjoying our wonderful waterways, always be careful, and have fun.

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Beware of Drinking on the High Seas

Posted Friday, May 17, 2013 by Andrew Charles Huff

Consumption of alcohol on navigable waters has a long tradition, going back to the British Royal Navy, where the alcohol ration given to all sailors at noon was 4.5 liters of beer, which was replaced in 1655 with half a pint of rum after the British capture of Jamaica from Spain. The tradition remained in the Royal Navy until abolished in 1970, when a British admiral concluded that intoxicated sailors were less capable of managing complex machinery.

Many boaters may consider it their right as weekend sailors to continue the tradition of consuming sizeable quantities of alcohol on Washington waters, but they better beware. A sea change in the law has come. State lawmakers recently took the fight against impaired boating to the water, and boaters will soon face stiffer penalties if convicted of boating under the influence (BUI), and may be fined $1,000 for refusing a breath test. The new legislation, SSB 5437, was signed into law by Governor Jay Inslee yesterday, and should take effect in July.

Operating a vessel with a .08 blood alcohol content (BAC) or impaired by alcohol or drugs is a crime, punishable by potential fines and jail. While still a crime, BUI previously had not carried as stiff penalties as those for driving a motor vehicle under the influence (DUI). The changes to Washington boating safety laws attempt to bring the penalties for BUI into parity with those for DUI, at least for the time being.

Under existing law, a boater suspected of BUI could exercise their right to refuse a breath test without fear of penalty if arrested for BUI. Unlike a DUI, where a person faces a near-certain driver’s license revocation if they refuse a breath test, no analogous penalty or consequence existed if a boat operator suspected of BUI refused a breath test. Until now, that is. The new law adds what is called “implied consent” language to RCW 79A.60.040, which now provides that anyone operating a vessel on Washington waters is deemed to have consented to undergo testing of the person’s breath or blood for alcohol, marijuana or other substances. The law enforces implied consent by providing that anyone suspected of BUI who refuses a breath test will be guilty of a Class 1 civil infraction, and subject to a monetary penalty of $1,000.

Under the new law, a person is only required to submit to a breath test when that person is actually arrested for an offense where the officer has reasonable grounds to believe that the vessel was operated by a person under the influence. As a practical matter, this means that an officer can arrest a vessel operator and demand a breath test anytime he or she can articulate reasonable grounds for believing that the vessel operator is under the influence. Unlike when operating a motor vehicle on the roads, there is no law prohibiting the consumption of alcohol while operating a vessel on Washington waters, and whether a person is “properly” operating a vessel on an open body of water is far more subjective than it is with a motor vehicle on the road. Accordingly, a determined law enforcement official is apt to have little problem articulating some “reasonable ground” for suspecting BUI whenever an open container of alcoholic beverage is found on board a vessel that is under way. For example, a frequently-cited ground for detaining a vessel is when they it was observed to have a visible wake in a “no wake” zone. As a practical matter, it is safe to assume that a reason can always be found to justify a stop.

It should also be noted that the breath test a BUI suspect must take, or incur the $1,000 fine, is the “official” breath test conducted with a BAC DataMaster testing unit, which is typically only found at the local law enforcement office for the jurisdiction. The required breath test is NOT the portable, hand-held, breath testing unit that is usually carried by marine patrols, and is often referred to as an “Alcosensor.” Nevertheless, while a boater is not legally required to submit to the portable, hand-held, breath testing, the practical consequence of refusing such a test may be arrest, the towing of the boat to an impound facility, and a trip to the local police station to undergo the official breath test. Note also that at large gatherings, such as Seattle’s Seafair, you can expect that law enforcement will have a nearby shore facility equipped with a BAC DataMaster to promptly test and process those suspected of BUI.

As noted above, boaters will also now face stiffer penalties if convicted of BUI. The new law increases both the maximum jail time and maximum fines for those convicted. This was accomplished by changing the classification, or type, of misdemeanor for a BUI. Previously, a BUI charge was a “simple” misdemeanor, punishable by up to 90 days in jail and a $1,000 fine. The new law now classifies BUI as a “gross” misdemeanor, carrying maximum penalties of 364 days in jail and a $5,000 fine.

It is also noteworthy that the BUI law applies not only to motor vessels, but to any “vessel,” which is defined to include “…every description of watercraft on the water, other than a seaplane, used or capable of being used as a means of transportation on the water. However, it does not include inner tubes, air mattresses, sailboards, and small rafts or flotation devices or toys customarily used by swimmers.” Accordingly, drunk kayakers are not immune from the new law, but Huck and Jim may be safe on their small raft.

Where Washington law officials may have been unable to effectively prosecute boaters for BUI for lack of sufficient evidence, imbibing boaters have sometimes been prosecuted for negligent boating by the U.S. Coast Guard. Such prosecutions by the U.S. Coast Guard are conducted as administrative proceedings before an administrative law judge employed by the U.S. Coast Guard, and require proof by only a preponderance of evidence to support the finding of a violation, which is a far lower threshold of proof than the “beyond a reasonable doubt” standard applicable to criminal prosecution for BUI by state officials. Under the mere preponderance of evidence standard, the mere testimony of a law enforcement official as to the boater’s appearance, conduct, smell, and vessel operation can be more than sufficient to sustain the finding of a violation of the applicable federal regulation.

The bulk of BUI cases in Washington come from major festivals on the water where crowds of boats congregate, such as Seattle’s Opening Day of Boating and the Seafair air show/hydroplane races. At Seafair, BUI task forces made up of various federal, State and local jurisdictions routinely board vessels looking for impaired skippers and other violations (minors in possession, safety equipment deficiencies, lack of current vessel registration, etc.) on the water. If you want to enjoy Washington waters at these events, it is best to have a mature, designated vessel operator who will not be imbibing and who is capable of convince a boarding officer that they have consumed no alcohol. This includes ready submission to a portable breath test, upon request.

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