LAW FIRM OF DAVID N. JOLLY
The following is an update to Washington State case law as it pertains to driving under the influence. Bellingham defense attorney David Jolly regularly reviews and comments on these updates as their role in criminal defense is paramount.
State v. Martines
(Supreme Court 90926-1) 8/27/15
Supreme Court reverses Court of Appeals, holding that the warrant authorizing the drawing of blood was supported by probable cause and permitted testing of the blood for both alcohol and drugs.
Martines was seen driving erratically on SR 167 before he veered into another car, swerved into the median and rolled over. Martines was stumbling, had slurred speech and smelled of beer. Although he said he only had one beer, he was seen tossing the remnants of a 6-pack in the bushes with only one beer left. The investigating trooper got a warrant for the "extract[ion]" of a blood sample. Because the warrant did not separately authorize the testing of the blood sample, the Court of Appeals reversed the conviction citing Skinner v. Railway Labor Executive's Ass'n, 489 U.S. 602, 616 (1989).
Supreme Court (9-0) concludes first that the affidavit established probable cause to search for both alcohol and drugs, or a combination, where the officer asserted Martines (1) had blood shot watery eyes, (2) had a "flush face"; (3) walked in a slow and deliberate manner and (4) seemed off balance and struck the door frame as he entered the patrol car. The Court finds these facts support the inference of "alcohol or drugs, or a combination of both." (As it turns out, there was valium in addition to the alcohol in his system.) If alcohol is ruled out, then there must be PC for drugs. Baldwin, 109 WA 516 (2001). Finally, "a warrant authorizing a blood draw necessarily authorizes blood testing, consistent with and confined to the finding of probable cause."
State v. Federov
Supreme Court holds (9-0) that the rule based right to counsel in CrR 3.1 and CrRLJ 3.1 does not provide a right to absolute privacy for conversations between attorney and client. The rules "provide only an opportunity to contact an attorney. Once contacted, privacy between the arrestee and attorney may be balanced against legitimate safety and practical concerns..."
Federov was clocked doing 119 mph on I-5 near Fife. When finally "cornered," Federov exhibited signs of intoxication, was arrested and transported to the nearest police station/jail with a BAC machine. The building is described as one large (29 x 17) windowless room run by only one officer and entered through a sally port. A telephone is at one end with a metal loop to which arrestees can be handcuffed. The officer started the observation period and then Federov asked to speak to an attorney. When the attorney asked for complete privacy, the trooper said he could only go to the other end of the room because the observation period had begun.
Supreme Court holds the rule only provides for the opportunity to access an attorney and the rule based right to counsel is more limited than its constitutional counterpart. While cases have reversed where law enforcement intentionally eavesdropped on conversations between counsel and client, there is no per se rule requiring reversal. Here there was no showing the trooper sought to intentionally listen in or that he actually heard the conversation between attorney and client. The trooper, therefore, "afforded Federov sufficient privacy under the circumstances."
State v. Z.U.E.
Terry stop of the defendant’s vehicle was not justified.
Multiple 911 callers reported seeing a man with a gun in a park eventually entering a two-door white or gray car with approximately eight other people. One caller said she saw a 17-year-old female hand off a gun to the man. Officers arrived within six minutes but did not see anyone at the park. They saw two females a block away, one of whom could have been 17-years-old. The females entered a four-door gray car with two males, neither of whom matched the description of the man with the gun. Officers stopped the car, ordered everyone out at gunpoint, used a stun-gun, and found drugs on Z.U.E.
Taking a flexible approach considering the veracity and basis of knowledge of the 911 callers, the stop here was not justified. There was insufficient evidence to support a link between the man with the gun and the car stopped. Because the 17-year-old girl's association with that man was established only by a single anonymous caller's observation, the officer's lacked reasonable grounds to suspect she aided in the commission of that crime. Exigent circumstances also did not warrant the police's immediate and invasive action here because there was no indication the seized car posed a threat to others.
State v. Howerton
Terry Stop. The 911 call had sufficient reliability to support a 911 call because the caller provided details like the address, name, and telephone number. The caller said that she saw a crime also.
State v. Fuentes
Terry Stop. The police conducted a Terry stop in a high crime drug apartment. There were insufficient facts to give rise to individualized suspicion. Pale appearance, the defendant's shaking, and the defendant's presence did not justify the Terry stop.
State v. Reis
Medical marijuana. "We hold that the plain language of MUCA, supported by the context in which the language appears, the overall statutory scheme, and the legislative intent as captured by the governor's veto message, does not support the conclusion that the medical use of marijuana is not a crime. Therefore, we affirm the Court of Appeals and remand for trial." The defendant moved to suppress the police search, arguing that the 2011 amendments decriminalized medical marijuana. The amendments did not, and the search was lawful.
State v. Jones
Court of Appeals 70620-9-I (4/6/15)
Court of Appeals holds the evidence the defendant crossed over the fog line was not enough to justify a traffic stop under Prado, 145 WA 646 (2008), and reversed Jones' VUFA conviction based on gun found in his car.
Anacortes Police saw Jones on State Route 20 and observed him pass over the fog line approximately and inch on three occasions, each time correcting his position with a slow drift. The officer stopped him due to erratic lane travel, although there were no other vehicles on the road at the time, and after FSTs concluded he was not intoxicated. An assisting officer saw a rifle on the back seat and Jones said he had a prior felony in Idaho. The trial court denied a motion to suppress because "there were more clear lane violations than in Prado..."
Court of Appeals concludes that RCW 46.61.140(1) describing safe lane travel uses the phrase "as nearly as practicable" which lead the Prado court to conclude "minor incursions over a lane line" do not, by themselves, constitute a sufficient basis for an investigatory stop." The statute "does not impose strict liability" and a "vehicle crossing over a lane once for one second by two tire widths does not, without more, constitute a traffic violation justifying a stop by a police officer." Here the state presented no evidence that the officer had particular training and experience in identifying impaired drivers. Compare McClean, 178 WA 240-41 (totality of circumstances). Because the state failed to justify its warrantless seizure of Jones, the trial court should have suppressed the evidence discovered because of the seizure.
Didlake v. State
No. 71633-6-I (3/16/2015)
Implied consent statute requiring filing fee for administrative review did not violate due process.
RCW § 46.20.308 requires that a driver arrested for DUI pay a filing fee to obtain an administrative review hearing to prevent a driver's license suspension or revocation. Because the driving privilege is not a fundamental right and the Department of Licensing waives the fee for indigent drivers, there is no due process violation.
State v. Rich
No. 70711-6-I (3/23/2015)
Evidence of reckless endangerment was insufficient.
Rich was convicted of DUI. At the time of the driving, Rich's son was her passenger. A person is guilty of reckless endangerment when she recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person. The risk must be an actual one, not merely a hypothetical or conjectural one. There is no per se liability for reckless endangerment based on proof of DUI. Here, the state presented no evidence that Rich's driving actually created a risk of death or serious physical injury that was considerable or substantial. The evidence was insufficient.
State v. Mullen
No. 45013-5-II (3/10/2015)
State was required to prove alcohol or drugs were involved in prior for felony DUI conviction.
A person is guilty of felony DUI if he drives under the influence and has four or more prior offenses within ten years. RCW § 46.61.502. Reckless driving qualifies as a prior offense if the conviction was the result of a charge that was originally filed as a DUI. RCW § 46.61.5055(14)(a)(x). Additionally, in Walla Walla v. Greene, the supreme court held the state had to prove the prior conviction existed and "intoxicating liquor or drugs were involved in that prior offense." 154 Wn.2d 722 (2005). Because the legislature's intent was to charge defendants who are guilty of prior alcohol- or drug-related offenses with felony DUI, the involvement of alcohol or drugs in prior convictions is an essential element that must be proven to a jury where it was not an essential element of the prior conviction itself (as in the case of a prior reckless driving conviction).
As always, please consult with a Bellingham DUI defense lawyer about your case if you have been charged with a criminal offense.
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LAW FIRM OF DAVID N. JOLLY
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