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Constitutional right to refuse a breath test? High Court says “Sorry Folks.”

Posted Thursday, December 22, 2016 by Andrew Charles Huff

A person does have certain privacy rights when asked to provide breath or blood from their bodies for testing. This normally occurs when a person is stopped for a DUI and asked to provide a breath or blood test. Some recent case law discussed these issues and just what privacy rights a person holds. Based on this theory, the argument becomes can a prosecutor use this “refusal” evidence at a DUI trial?

In a recent decision, the State Supreme Court held that a driver does not have a constitutional right to refuse a breath test because such a search falls under the search incident to arrest exception to the warrant requirement. Further, the Court found that although the implied consent law gives a driver a statutory right to refuse the test, by exercising the privilege to drive, a driver consents to admitting they refused to take the breath test into evidence in a trial. Therefore, the Court ruled that a driver’s refusal is admissible as evidence of guilt under Washington’s implied consent law.

State v. Baird

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Warnings About Marijuana Required in a DUI Arrest

Posted Friday, December 16, 2016 by Andrew Charles Huff

Now that adults can legally light up a joint in our state, did arresting officers in a DUI case have to notify Ms Murray about marijuana when requesting she submit to a breath test? The Washington State Supreme Court recently decided this issue based on a stop that occurred after marijuana became legal but prior to the breath test warnings being updated to reflect the change in the law.

First, a standard breath test machine can determine alcohol concentration in the breath, but it does not test for pot.

After the arrest, Trooper Gerrer read Ms Murray the standard Implied Consent Warnings for Breath at the police station. This incident took place approximately two days after new laws went into effect that set per se limits on THC concentration in blood. Trooper Gerrer did not provide Murray with any warnings about THC concentration in her blood.

The State argued that the trooper was not required to read the entire statutory warning and the trooper provided Murray with an adequate warning to allow her to make a knowing and intelligent decision about taking the breath test.But the Supreme Court found the State was unable to show that the officer gave all the required warnings to Murray, i.e. warnings about THC. Therefore, the breath test evidence in this case was properly suppressed.

State v. Murray

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Radar verses…..LIDAR?

Posted Thursday, December 8, 2016 by Andrew Charles Huff

The next time you see a police officer standing along the side of the road pointing a speed measuring device (SMD) at oncoming cars, it might now be a “radar gun.” Instead, the technology has evolved and more of these devices are what is called LIDAR. These newer speed detection devices use pulsed laser light or LIDAR, rather than radio waves. While radar’s radio waves can expand to 85 feet across at 1,000 feet from their source, LIDAR’s light beam diffuses to only about 6 feet, making the beam much harder to detect with any type of detection device some drivers use.

Despite the advent of LIDAR speed detection, radar still remains popular with many police agencies because of its lower price relative to LIDAR equipment and the amount of radar equipment already in service. In addition, in order to use LIDAR the officer must be stationary and cannot be moving at all on account of the need for a very precise aim.

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The Accuracy of a Speed Measuring Device Must Be Proven

Posted Monday, December 5, 2016 by Andrew Charles Huff

It’s hard to be sitting in traffic court for long and not hear the case of Seattle V. Peterson referenced by either attorneys or judges. This case provides the framework for the use of speed measuring devices (radar guns) in court and essentially requires that the accuracy of these devices be proven.

On March 1, 1982, Seattle Police Officer Thomas Byers was on routine patrol when he observed a car that appeared to be speeding. Using his radar device, he determined Mr. Peterson was speeding and issued him a citation. Mr. Peterson decided to challenge the ticket and requested a Contested Hearing.

At the hearing, the only evidence of speed was Officer Byers’ testimony that, before he locked in a reading on the radar unit, it appeared to him from visual observation that Peterson’s vehicle was traveling between 40 and 45 m.p.h. The court found the infraction committed.

But on appeal, the issue was whether the particular machine (SMD) itself was proven to be reliable. The court found that if the validity of a scientific principle (the Doppler effect) is a prerequisite to its admission into evidence, then the accuracy of the actual device must also be proven before the results can be admitted into evidence.

Here, the only evidence offered regarding the radar unit was the testimony of Officer Byers, who candidly acknowledged that his information about the radar device was limited to instructions on how to calibrate and operate it. No evidence was offered relating to the design and construction of the radar unit. The only evidence on the accuracy of the radar unit was the opinion of Officer Byers that he had confidence in the accuracy of the unit.

Seattle v. Peterson, 1985

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The lights go on in your rearview what?

Posted Friday, November 11, 2016 by Andrew Charles Huff

You are driving home one late evening and you realize that maybe you consumed one too many alcoholic drinks when suddenly those lights go on behind you signaling you to pull over. You feel your heart start to race and you feel nervous. So what do you do next?

  1. Pull over quickly and stay in your carMove to the side of the road as quickly and safely as possible while using your signal. Once you have come to a complete stop, shut your car off and put your hands on the wheel. Do not get out of your car unless specifically asked by an officer.

  2. Be politeMisbehaving, cursing at police or disobeying orders is sure to get you into trouble and raise the ire of the officer. Being pulled over for a possible DUI is scary, especially if you know you have been under the influence and will probably be caught. But what is worse is acting out against law enforcement or being unnecessarily uncooperative.

  3. Remember your 5th Amendment RightsYou can be respectful to police officers and follow directions, but this doesn’t mean that you have to incriminate yourself. The 5th Amendment is your right to remain silent on anything that might incriminate yourself.

  4. Being candid probably won’t help youPolice had a reason for pulling you over so insisting that you had “just one mixed drink” probably won’t get you very far. Telling the police the amount of alcohol you had most likely won’t help you case because they have “been around the block” and have learned not to believe you anyway. You should comply with questions, but don’t offer any unnecessary information concerning where you came from, who you were with, and how many drinks you have consumed.

  5. Stay calm if you are arrestedIf you have been drinking earlier, no matter how much, there is a chance you will be arrested. Being put into police custody, especially if you are still drunk, can be a scary experience but staying calm is a must. Respectfully request to speak with an attorney and remember anything you say can and will be used against you in the court of law.

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