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It’s the Source Code, Stupid!

Posted Thursday, June 14, 2018 by Andrew Charles Huff

The source code behind a police breathalyzer widely used in multiple states – and millions of drunk driving arrests – is under fire. It’s the latest case of technology and the real world colliding – one that revolves around source code, calibration of equipment, two researchers and legal maneuvering, state law enforcement agencies, and Draeger, the breathalyzer’s manufacturer.

About 10 years ago when Washington state began the process of replacing its aging fleet of breath machines, our state requested bids and the only bidder was Draeger, a German medical technology maker. Specifically, they won the right to sell their flagship device, the Alcotest 9510, across the state.

But those of us on the defense bar have long believed this machine is faulty. In fact, a preliminary report found flaws capable of producing incorrect breath test results and therefore we believe these findings cast doubt on countless DUI cases.The Draeger company has so far refused to release requested information on their machines, stating the company is protecting its source code and intellectual property, not muzzling research. And these issues in Washington are the latest in several legal battles where this machine has faced scrutiny about the technology used to secure convictions.

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Terry Stop? What’s a Terry Stop?

Posted Thursday, June 14, 2018 by Andrew Charles Huff

Most people know that as a general rule, a police officer cannot search you or your vehicle without probable cause, according to article I, section 7 of the Washington State Constitution. But there are exceptions to this warrant requirement. In fact, Washington recognizes at least six narrow exceptions to this warrant requirement. They are Consent, Exigent Circumstances, Searches Incident to a Valid Arrest, Inventory Searches, Plain View Searches, and…the Terry investigative stop.

A Terry stop is quite common and an officer must have a reasonable and articulable suspicion of either criminal activity such as Driving Under the Influence or a traffic violation. This stop allows an officer to briefly detain, for limited questioning, a person for the above reasons. For example, when police are unable to locate a person suspected of a past crime, this ability to briefly stop that person, ask questions, or check identification helps law enforcement do their job.

Therefore, this minimally intrusive Terry stop allows an officer to make an intermediate response to a situation for which he or she lacks probable cause to arrest but which calls for further investigation.

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Problems with Proving Impairment by Machine

Posted Wednesday, June 13, 2018 by Andrew Charles Huff

There are several ways a person may be found guilty of Driving Under the Influence (DUI) in Washington. First, when a driver’s blood alcohol content (BAC) was .08 or above within two hours of driving. Also, when it’s shown their ability to drive was effected to an appreciable degree by alcohol or drugs.

For years, Washington has measured a person’s Blood Alcohol Content (BAC) with a machine called the DataMaster breath machine. However, this has changed and now the state is switching over to the Draeger Alcotest breath machine manufactured by a German company. In all breath test machine cases including the DataMaster and Draeger Alcotest machine, these machines are located at the station and cannot be used at the arrest scene to obtain a breath sample. Therefore, the time it takes to obtain a sample can take anywhere from 30 minutes to several hours after the person was driving, proving the that the BAC sample does not tell us exactly what the person’s alcohol level was at the time of driving.

When we consume alcohol, it must be absorbed by the body in order to enter a person’s blood system and affect their mental and physical faculties. Once the alcohol is absorbed, it will dissipate, or eliminate, from the blood system and therefore works like a “bell-curve” in a person’s body. But it’s not a perfect bell-curve and the rate at which alcohol absorbs and stays in the blood system varies by the person. This can affect how quickly the alcohol absorbs as well as if there is a plateau period, or time for which the alcohol content remains the same. The average dissipation rate ranges from .015-.020% per hour.

This leads to so many variables, and merely knowing a person’s BAC at a specific time does not tell us exactly what that person’s BAC was at any specific time in the past. This obviously is important because it means, without more information, knowing a BAC at some point in time after a person was driving does not give us enough information to know what that person’s BAC was at the time that person was driving. The fact that blood alcohol dissipates is notable for what it does not tell the court. It does not, for example, by itself inform the court whether at any given time, a person’s blood alcohol is dissipating or increasing. After all, it is also a matter of common knowledge that, before a person’s blood alcohol can dissipate, alcohol must accumulate in the blood.

This is all to say that, just because a person blows .08 or above, it does not necessarily mean that person is guilty of Driving Under the Influence. Much more goes into this question and the prosecutor must present more evidence to the jury to suggest what that specific person’s BAC was at the time that person was driving.

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Assault Charge-You Can Beat It

Posted Friday, May 25, 2018 by Andrew Charles Huff

An Assault charge can be frightening and potentially life-changing if not handled properly and effectively. My past clients charged with assault involved words or more at a bar, a heated argument with a spouse or an altercation with a neighbor.

The crime of “Assault” is the intentional infliction of unwanted physical harm. To successfully prove that a person assaulted another, a prosecutor must show that the accused intentionally performed some act that caused a victim to fear actual harm. Proof of actual harm or use of a weapon is not required for this offense. Rather, mere proof of a threatening act that would cause a person to believe harm was present could be enough for an assault charge.

There are four degrees of Assault under Washington law. Assault-4th Degree is the least severe charge and is a gross misdemeanor punishable by up to a year in jail and a $5,000.00 fine.

Assault 1st, 2nd and 3rd degree are more serious charges and are all felonies. The use of firearms or other deadly weapons drastically increase the seriousness of assault charges.

There are three main defenses to an assault charge. The first relates to an accused’s intent at the time of the allegation. Assault is the intentional infliction of unwanted harm and if an accused can show that he or she never intended for this act to cause a fear of harm, an assault charge can likely be dismissed or dropped.The remaining two defenses involve self-defense and the defense of another. That is, an accused can try to dismiss an assault charge by showing that they were acting in self-defense; or acting in defense of another person.

I have been representing clients with proven results for years on assault charges or other criminal offenses. I will provide you strong legal representation to navigate your charges, defend your rights, and fight for the best possible outcome

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Privacy Rights and Car Rental Agreements-U.S. Supreme Court Hands Down a Win for Privacy

Posted Monday, May 14, 2018 by Andrew Charles Huff

The U.S. Supreme Court just ruled that some who rents a car does not automatically have diminished privacy rights if their name isn’t on the rental agreement.

The unanimous opinion is a victory for privacy rights advocates who were concerned that police could find reasons to stop rental car drivers for minor infractions knowing that they could engage in searches without the driver’s consent.

The case dates back to 2014, when Terrence Byrd was stopped by police for a minor traffic infraction. Police noticed that he appeared nervous, and when they asked him for the rental agreement for the car, his name was not listed as a permissive driver.The officers said they did not need to consent to a search of his car, because his name was not listed on the rental agreement and as an unauthorized driver he had no reasonable expectation of privacy. Police ended up finding drugs in his trunk.

Byrd’s lawyer moved to suppress the evidence against him, arguing the Fourth Amendment’s guarantee against unreasonable search and seizure. He noted that Byrd had the permission of his girlfriend, whose name was on the agreement, to rent the car.

Justice Anthony Kennedy wrote, “the mere fact that a driver is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

This decision closes an important gap in Fourth Amendment issues by clarifying that a driver of a rental car who is not on the rental agreement does not automatically lose the protections other drivers would have during a traffic stop.

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