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Draeger Breath Machine a "Flawed Device," Says Report

Posted Friday, May 11, 2018 by Andrew Charles Huff

The State of Washington, like most other states uses a breath test machine to determine whether a person has exceeded the legal blood-alcohol limit of .08 within two hours of driving. For years, the state used what is called the DataMaster Breath Machine.

However, approximately ten years ago Washington state requested bids to replace its aging breath machines, and the only bidder was Draeger, a German medical technology maker. Draeger was then awarded the contract to sell its flagship device, the Alcotest 9510, across the state.

But many of us on the defense side believe this device is faulty. And a preliminary report drafted by two experts have found flaws capable of producing incorrect breath test results. This has led to the current challenge that we are mounting against what appears to be a flawed machine that can affect the results and call into question its accuracy.

The Alcotest 9510 uses two sensors to measure alcohol content in a breath sample: An infrared beam that measures how much light goes through the breath, and a fuel cell that measures the electrical current of the sample. The results should be about the same and within a small margin of error – usually within a thousandth of a decimal point. If the results are too far apart, the test will be rejected.

However, the report found that under some conditions the breath machine can return an inflated reading – a result that could also push a person over the legal limit. One reason is the apparent lack of adjustment made by the machine of a person’s breath temperature. Breath temperature can fluctuate throughout the day, but can also wildly change the results of an alcohol breath test. Without correction, a single digit over a normal breath temperature of 34 degrees centigrade can inflate the results by six percent – enough to push a person over the limit.

The quadratic formula set by the Washington State Patrol should correct the breath temperature to prevent false results. The quadratic formula corrects warmer breath downward but the code doesn’t explain how the corrections are made and the corrections “may be insufficient” if the formula is faulty.

More commentary to follow on the Draeger Alcotest 9510.

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Boating Season is Here!

Posted Wednesday, May 9, 2018 by Andrew Charles Huff

This means that while out on the water, you are subject to the Boating Under the Influence laws if you drink and operate a maritime vessel.

Boating Under the Influence or BUI’s are gross-misdemeanors, which means you face between 0-364 days in jail and up to a $5000 penalty. Unlike a DUI, there is no driver’s license suspension for a BUI. Also, unlike a DUI, you have no obligation to take a breath test.

I have been successful over the years of keeping a criminal BUI charge off client’s records by obtaining a dismissal or at least a reduction to negligent Boating , a civil infraction.

BUI is Considered a “Prior Offense” for a Later DUI Conviction

Under RCW 46.61.5055, anyone with BUI or reckless boating conviction on their record that is later convicted of a DUI will have the BUI treated as a prior offense. While most people never think that they will later be accused or convicted of DUI, this can have very real consequences. Making a BUI a “prior” can dramatically increase penalties for someone later convicted of DUI, vehicular assault or vehicular homicide.

All Motorized Vessels Apply

The law pertains to all “vessels” that operate on the water. Vessel is a very broad term and includes:

“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.”

What Does the Law Say?

If a vessel is lawfully stopped and the operator (driver) has a breath or blood content of .08 or greater, THC concentration of 5.00 or higher, or is under the influence of intoxicants or marijuana, then that person can be accused of a gross misdemeanor. RCW 79A.60.040.

A gross misdemeanor is a criminal offense punishable by up to 364 days in jail and up to a $5000 fine. RCW 79A.60.020.

The refusal to take a breath or blood test is not admissible into evidence at a later trial. However, the refusal to take a breath or blood test does constitute a “class 1 civil infraction” under RCW 7.80.120, with the “default” and maximum penalty being $1,000.

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Misdemeanor Offense: The Court Process

Posted Wednesday, May 9, 2018 by Andrew Charles Huff

I routinely receive questions from folks about what to expect of the court process when charged with a misdemeanor offense.

While being charged with a misdemeanor crime is not nearly as serious as a felony, it can still effect your day-to-day life. The possibility of jail, fines, a criminal record, probation, etc. can turn life upside down. You must know how to navigate the legal process and obtain the very best outcome possible. Occasionally, that could mean trial. Most other times, cases are resolved through negotiations with the prosecutor or dismissed by a judge pre-trial.

Here are answers to some very common questions:

What is a Misdemeanor?

Misdemeanors are criminal charges that, while not nearly as serious as a felony, can result in fines and jail time.

There are two classifications of misdemeanors. The first is a Gross Misdemeanor, punishable by up to 364 days in jail and a $5,000 fine. Second is a Simple Misdemeanor, punishable by up to 90 days in jail and a $1,000 fine.

What Happens After I’m Arrested?

When charged with a misdemeanor you may or may not be arrested and brought to jail at the time of the incident. Between an arrest and being charged, the officer will turn over all reports to the prosecuting attorney who will decide which formal charges will be brought filed. Once the prosecutor has a chance to review the case, they will decide how they will charge the crime, referred to this as the “charging decision”. When reviewing a file for charging, a prosecutor can choose what the officer arrested on, add or remove charges, or not bring any charges if they feel there isn’t enough evidence.

What Happens When I’m Charged With a Misdemeanor?

Most misdemeanors begin with a citation or Notice to Appear which includes a date when you must appear in court. That appearance is called an Arraignment.

What Happens at the Arraignment?

At the arraignment hearing you will appear before a judge in court, notified of the charge(s) against you along with possible fines, jail time, or additional penalties , and then enter a Not Guilty plea. You’ll also be read your rights and any restrictions you must comply with until your case is resolved, including conditions for release from jail.

Watch for more information about the Court Process coming soon.

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Seattle Traffic Tickets: Pre-Hearing Conference or Not?

Posted Friday, May 4, 2018 by Andrew Charles Huff

The many changes and additions to the signage guiding our cars and bikes through the busy streets of Seattle have caused a rise in traffic citations for failing to obey or follow the signs. Examples include limiting the times to turn left or right and being aware of new bike lanes when making these turns. I have been contacted by many people cited by police for these various violations that are for the most part “moving” violations, meaning they will appear on your driving record if found committed. Many ask me about the “Pre-Hearing Conference” that Seattle Municipal Court automatically schedules when a person decides to challenge their ticket. But what is a “Pre-Hearing Conference” and can you keep your ticket off your record with it?

The answer is simply NO, you will not be able to protect your driving record by appearing at this conference for the simple reason of that’s not what the hearing is for. A “Pre-Hearing Conference” is a hearing automatically scheduled for everyone who wants to fight a ticket. However, the purpose of this hearing is to simply mitigate or request a lower fine rather than contest or fight the ticket. In order to keep a ticket off your record, you need your case set for a “Contested Hearing.” This is a formal hearing presided by a judge and conducted by a prosecuting attorney.

When a person retains me to fight a Seattle ticket for them, I immediately file my paperwork with the court that includes a “Waiver of Pre-Hearing Conference.” This requires the court to skip this unnecessary step and set the matter directly for a “Contested Hearing,” which is what is needed to keep this ticket off your record.If you are one of the many who have received a traffic ticket in Seattle or anywhere else in the area, contact my office at 206-729-3477 and let me explain how we can keep your record clean.

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Left Lane Travel- The Court Makes a Ruling

Posted Wednesday, May 2, 2018 by Andrew Charles Huff

We’ve all experienced this situation while cruising down the freeway in the left lane. There’s no one in front of us when all of a sudden we come upon a vehicle taking up the left lane and slowing everything down. But is this left-lane driver committing a traffic violation by doing so?

This was the question before the Court of Appeals recently when the issue before the Justices was whether a driver may travel continuously in the left lane of a multilane roadway without thereby committing a traffic infraction.

The petitioner Steven Thibert was observed by police traveling in the left lane even though no other vehicles were traveling in the unobstructed right lane. The police officer conducted a traffic stop for violating RCW 46.61.100(2), captioned “Keep right except when passing, etc.”

However, Mr. Thibert argued to the Court that traveling continuously in the left lane is a traffic infraction only when it impedes the flow of traffic, which in his case he was not.

But the Court looked at the statute and held that plainly read, RCW 46.61.100 does in fact make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except …”) “is presumptively imperative and operates to create a duty.”

Therefore, drivers should delegate the left-hand lane for passing other traffic and not drive continuously in this lane even if no traffic is impeded.

State v. ThibertWA State Court of Appeals, Division III

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