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Field Sobriety Tests in Driving Under the Influence (DUI) Cases

Posted Tuesday, February 19, 2019 by Andrew Charles Huff

Most people stopped for Driving Under the Influence are familiar with standardized Field Sobriety Testing, a set of physical agility exercises administered by officers suspecting someone of Driving under the Influence. These tests are difficult even if you have not consumed alcohol and especially so if you have drank even a little alcohol.

The best advice is do not submit to any field sobriety tests even f you have only drank a small amount. All you will be doing is helping the arresting officer to build a case against you, which is the primary purpose of these tests. Many sober people will have difficulty passing these sobriety tests, especially if they are older or overweight.

“Field sobriety testing” (or FSTs) as performed on the streets, roads and highways throughout the state, is not a scientific indication of a person’s level of intoxication. There are no conclusive studies confirming the results of any field sobriety test to legal intoxication. The best studies show a very questionable rate of accuracy.

Only three of the tests available to police officers have been given any real “scientific” legitimacy by the National Highway Traffic Safety Administration (NHTSA). These three tests are:

The Walk-and-Turn TestThe One-Leg-Stand TestThe Horizontal Gaze Nystagmus Test

Non-standardized Tests

All other tests besides the three noted above are not validated in any official or scientific manner. In fact, many of the tests involve closing your eyes and balancing. Without a visual frame of reference, no “balance” test can truly measure a person’s sobriety or level of intoxication. Therefore, tests such as the well-known Finger-to-Nose Test and the Rhomberg Balance Test should be declined if requested to perform. Other tests, such as counting backwards or reciting the ABCs backwards, or counting one’s fingers in a specified sequence, have no scientifically proven correlation whatsoever to one’s ability to operate a motor vehicle safely.

In Washington, you have the absolute legal right to refuse to submit to field sobriety testing (FSTs). If you decide to take the tests, the officer will subject you to his or her own interpretation and opinion concerning your performance on the tests. Therefore, these tests are in actuality very subjective and non-scientific measures. Remember that the officer is already investigating you for DUI and in all likelihood, is planning to arrest you for Driving Under the Influence even if you do perform these field sobriety tests.

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When does an expert witness need not testify at trial?

Posted Wednesday, January 30, 2019 by Andrew Charles Huff

Must an expert witness who extracted data from a cell phone found at a crime scene testify at trial because of the right to confront?

This was the issue involving data extracted from a cell phone found at one of the incident scenes. The phone was sent to an out of state crime lab to perform a “chip-off” procedure. “Chip-off” forensics is a high-tech method of extracting and analyzing data stored on flash memory chips. This method often allows the extraction of data from devices even if the device is damaged or the data has been deleted.

In this case, the technician who performed the chip-off data extraction could not be located and the State called another witness instead to admit the data extraction results. This expert admitted that she did not extract the data and that her testimony relied entirely on the report of testing done by another witness. At trial, this second expert testified about the chip-off process and the preparation of the resulting report but did not testify about the content of the cell phone found at the scene of the robbery.

On appeal, the defendant argued that the trial court violated their rights of confrontation when it admitted the cell phone data extraction report when they had no opportunity to cross-examine the original expert and that using surrogate witness was not sufficient to protect their rights to confrontation.

However, the Court held that because the cell phone data extraction report did not directly accuse the defendant, the original expert was not a “witness against” the appellants and their confrontation rights were not implicated. IN making this decision, the Court applied a two-part test to determine whether the lack of testimony from a witness who assisted in the preparation of forensic evidence testing implicates the confrontation clause. The Court held that an expert’s testimony comes within the scope of the confrontation clause only if (1) the person is a “‘witness’ by virtue of making a statement of fact to the tribunal” and (2) the person is a witness “‘against’ the defendant by making a statement that tends to inculpate the accused.”

Therefore, the Court held that the confrontation clause did not require testimony from the technician because he was not a “witness against” the defendant.

Washington State Court of Appeals, Division TwoJanuary 3, 2019No. 49245-8-II

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2019 Changes to DUI and DOL Laws

Posted Monday, January 21, 2019 by Andrew Charles Huff

There are new changes beginning in 2019 for rules effecting challenges to license suspensions by the Department of Licensing. If you have been arrested for DUI the following new laws will now affect you:

  1. You must request a DUI hearing within 7 days of the arrest.
  2. Your license will be suspended within 30 days of the arrest if you do not request a hearing.
  3. The Department of Licensing will only give you five days’ notice of the hearing’s ate and time.

*CHANGES TO THE DEPARTMENT OF LICENSING AND DRIVING PRIVILEGES*

No Hearing Requested:

If no hearing is requested, license or permit will be a temporary license for 30 days from either the date of arrest or from date of notice if notice was given by DOL.

Requesting a DUI Hearing:

A person has 7 days after they have been served written notice to request in writing a formal hearing. If mailing in the request, the postmark must be within 7 days of the receipt of notification.

Application fee remains $375.00

DOL Hearing Timeline

The DOL hearing shall be held within 30 days (excluding Saturdays, Sundays, and legal holidays) following the date of timely receipt of the formal request for hearing.“Timely receipt” is not defined specifically in the RCW or WAC so it will be unclear when the 30-day count will start.

If the DOL gave notice following a blood test, the DOL hearing shall be held within 30 days (excluding Saturdays, Sundays, and legal holidays) of the date of notice given.Notice is deemed to be given on the third day after the notice is deposited into the state mailing service (WAC 308-101-030).

Notice of DOL Hearing:

DOL must give 5 days’ notice of the hearing to the person unless otherwise agreed to by the department and the person. The 5 days’ notice required for hearings should mean 5 business days’ notice of the hearing (WAC 308-101-030)

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Court Finds “Turn Signal” Not Always Required

Posted Thursday, January 17, 2019 by Andrew Charles Huff

Must a driver always use a turn signal when making a turn from a designated turn lane? “No, you do not” says Washington Appeals Court-Division III in a recent decision involving a traffic stop due to failing to signal.

The case involved a driver who properly signaled when moving from the middle lane into a designated turn lane. Once he entered the turn lane, this driver did not “reactivate” his turn signal when turning from the designated turn lane. A police officer then conducted a traffic stop for failing to signal.

At issue is RCW 46.61.305(2), which declares that a driver must, “when required,” continuously signal an intention to turn or cross lanes during at least the last one hundred feet traveled before turning or moving lanes.

But in his appeal, Joseph Brown asks if this statute compels a driver, who properly signaled when moving into dedicated left turn lane to then reactivate his turn signal before turning left from the reserved turn lane.

The Court ruled that this statute only requires use of a signal in circumstances that implicate public safety. Because the circumstances surrounding Mr. Brown’s lefthand turn from a left-turn-only lane did not jeopardize public safety, the Court found that he did not commit a traffic violation and the stop was unlawful.

Jan. 17, 2019 - 35304-4 - State of Washington v. David Joseph Brown

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Client Passed Out BUT Not Impaired

Posted Friday, January 4, 2019 by Andrew Charles Huff

A great outcome in a DUI case that initially looked pretty challenging at first but resulted in a full dismissal. My client was found passed out in a drive through coffee line. The barista called police, who tried and were able to wake my client up. Suspecting impairment, officers asked my client if he had been drinking alcohol. Client answered “No” but was soon arrested for Driving Under the Influence.

I challenged the arrest on grounds that officers did not have reason to believe client was impaired. Here is why: Officers never once smelled alcohol during the entire encounter; client denied drinking any alcohol when questioned; no field sobriety tests were administered due to client’s condition. I argued that officer simply assumed he was impaired but he could have been suffering a medical emergency such as a stroke or heart attack. In other words, responding officers concluded he was impaired when in reality there was no reason to believe this was the case. The judge agreed with this argument and case dismissed.

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