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To Refuse or Not to Refuse

Posted Friday, March 29, 2019 by Andrew Charles Huff

One question I’m frequently asked is if arrested for Driving Under the Influence whether you should provide a breath sample when requested by the officer. The answer really depends on the type of breath test offered but also the potential penalties attached to a “refusal” of the breath test machine.

One of the first things you may be asked to do after an arrest for Driving Under the Influence is to provide a breath test. While you could decline the invitation to submit to a breath test, doing so can create a much more complicated outcome for you.

The only breath test machine you can refuse in Washington without consequences is the portable breath test (PBT) device normally administered at the scene and many times prior to arrest. This hand-held device is used by the officer to determine whether there exists probable cause to arrest. Any results are not admissible as evidence. I normally advise clients to decline the portable breath test (PBT) because the results are not admissible and no licensing consequences exist.

Don’t refuse the formal breath test at station

Once you are under arrest and transported back to the station, you will most likely be asked to submit breath samples into the breath-alcohol machine. The primary machine now used in our state is the AlcoTest 9510. First, any results from this device can be used against you to prove impairment and /or whether you were over the legal limit of .08. Second, if you refuse this test, the officer will notify the Department of Licensing of your refusal and you will face a potential revocation of a year or more. Third, the officer has the authority to obtain a search warrant authorizing your blood withdrawal for testing and transport you to the nearest hospital for this mandatory blood draw. In other words, you could face a license revocation for refusing the breath test but still have your blood tested for alcohol by blood draw.

Additionally, any evidence of “refusing” a breath test can result in additional consequences in your case such as increased fines and additional jail time.

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Can police ask a lawfully seized passenger to search her purse?

Posted Monday, February 25, 2019 by Andrew Charles Huff

If police conduct a lawful traffic stop of the car’s driver, can they also ask a passenger for consent to search a purse left inside the car after the owner mentioned her prior drug conviction?

This issue was recently before the Washington State Court of Appeals, Division I when officers conducted a traffic stop and arrest of the driver for a suspended license. The passenger Ms Carmen Rose Lee was asked to exit the vehicle so police could search it. Ms Lee left her purse in the car after exiting.

After arresting the driver, officers Ms Lee’s identification to determine if she had a driver’s license so she could the car so not to be impounded. When officers ran this background check, they discovered Ms Lee had a conviction for possession of a controlled substance, which she also mentioned to officers. This statement led to a request to search her purse after advising her she did not have to consent. However, Lee consented to the search of her purse where officers found drugs.

On appeal, Ms Lee argues that police exceeded the reasonable scope and duration limitations by asking a lawfully seized passenger for consent to search her purse left inside the car after mentioning a prior drug conviction. She further argues that her consent to search was not actually valid because officers unlawfully seized her.

The Court held that Ms Lee was properly seized as a passenger in the traffic stop and remainedreasonably seized for the duration of the stop. Under the totality of the circumstances, the police did not exceed the reasonable scope and duration limitations by asking Lee for consent to search her purse left inside the car and mentioning her prior drug conviction. Therefore, Lee’s voluntary consent to search her purse was valid.

State of Washington v. Carmen Rose Lee, Division I, 77038-1-1

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Can police “stop and search” you?

Posted Tuesday, February 19, 2019 by Andrew Charles Huff

Washington state police cannot search a car without a search warrant. To search a car, police must instead petition a judge for a warrant and then carry out the search within a specific time frame. This ruling by the Washington State Supreme Court held that police must obtain a search warrant in order to search a vehicle even if there is reason to suspect that a vehicle contains evidence of a crime. The Washington Supreme Court found in State v. Snapp that searching a car for evidence of a crime when the driver has already been arrested is illegal under Article I, Section 7 of the state constitution.

An officer who has probable cause must still obtain a warrant to search. Washington law defines probable cause as “having more evidence for than against; a reasonable belief that a crime has or is being committed.” An officer without a warrant cannot search your car without your permission. In this situation, you may decline to have your car or person searched.

Exceptions to the warrant requirement

There are certain exceptions under which police may search a car without a warrant. These exceptions include if immediate action is required to protect someone or prevent evidence from being destroyed. These are known as “exigent circumstances.”

What to do when stopped

If you are stopped by police, you should remain in your vehicle and maintain a calm, respectful attitude. Actions like getting out of your car without being asked or reaching underneath your seat can be construed as threatening. Turn on the interior light if it’s dark outside, and keep your hands on the steering wheel in plain sight.If the officer asks to see your license, registration, or proof of insurance, the law requires you to comply. Do not argue with the officer, and restrain the urge to complain or resist. If you feel you have been treated unfairly, you should take your complaint to traffic court rather than argue with the police at the scene. Remember that anything you say can be used against you.

While you must show your license and registration if asked, you don’t have to answer any questions. If the police ask to search your car, and do not show you a warrant, you can refuse. If the officer says he or she has a search warrant, you should ask to see the warrant before letting him or her search your car. Be polite, but make it clear that you do not consent to a search.

If the police give you a ticket, you should sign it to avoid arrest. Then, if you feel the ticket is unfair, you can argue it later in traffic court.

If you are arrested, you should ask why and ask to speak with an attorney immediately. You have the right to know the reason for your arrest, and you have the right to a lawyer’s counsel.

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Defense attorney on a case now the prosecutor?

Posted Tuesday, February 19, 2019 by Andrew Charles Huff

What happens to a case when the defense attorney has been elected county prosecutor? An interesting situation arose after Mr. Garth Dano was elected Grant County Prosecuting Attorney but a case was returned on appeal he was previously involved in.

Prior courts have found that in similar situations when an attorney transitions from representing individual clients to the position of elected prosecutor, conflicts of interest can arise, restricting not only the attorney’s ability to work on a given case, but also necessitating recusal of the entire prosecutor’s office. The standard set by the Washington Supreme Court is that when an elected prosecutor has previously represented a criminally accused person in a case that is the same, or substantially the same, as the one currently pending prosecution, the entire prosecutor’s office should ordinarily be disqualified from further participation.

The question raised by Mr. Nickels in this case was whether the Supreme Court’s office-wide recusal standard contemplates a bright-line rule and, if not, what circumstances can disentangle an elected prosecutor’s need for recusal from that of the prosecutor’s office.

This court held that a prosecutor’s office is not subject to bright-line recusal rules. While office-wide recusal under the Supreme Court’s test is the norm, an exception can exist in extraordinary circumstances. Extraordinary circumstances are informed not by the nature of the elected prosecutor’s current activities, but by his or her prior work as counsel, including (1) whether the prosecutor was privy to privileged information and (2) the nature of the case giving rise to the elected prosecutor’s conflict of interest.

Here, Grant County Prosecuting Attorney Garth Dano previously represented David Nickels in a first degree murder case that remains pending in Grant County Superior Court. Mr. Dano’s work caused him to be privy to confidential work product and attorney-client information. Given this circumstance, coupled with the seriousness of Mr. Nickels’s criminal charge, extraordinary circumstances do not justify differentiating Mr. Dano’s conflict of interest from that of the entire Grant County Prosecuting Attorney’s Office. Instead, the general rule applies and the entire prosecutor’s office must be recused along with Mr. Dano.

State v. Nickels, WA State Court of Appeals, Division III, No. 35369-9-III

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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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