Defending DUI/DWI Cases

DUI cases are analogous to appliances. The more parts there are, the greater the opportunity for a defect to occur:

There are many components to DUI / DWI cases. The typical DUI contact involves three separate and distinct phases:

  • Phase 1: Vehicle in Motion
  • Phase 2: Personal Contact
  • Phase 3: Pre-Arrest Screening

Phase 1 can be simplified as the observations a police officer makes when the vehicle of the suspect driver is in motion.

Phase 2 can be simplified as the observations the police officer makes when speaking face-to-face with the driver. What does the police hear? See? And smell? What information is contained in the report? Was anyone else in the car? Was that person drinking? How was the officer certain the odor of an intoxicating beverage was coming from you?

Phase 3 can be summarized as the officer’s opportunity to administer field sobriety tests to evaluate whether the driver is impaired. A preliminary breath-test may also be administered under this phase, as well.

How can the 3 phases described above be used to your advantage?

Motions to Suppress Evidence:

The more working parts there are to a DUI case, the greater the opportunity for the criminal defense attorney to challenge the government’s case.

Vehicle in Motion – Did the police officer have a lawful basis to stop the vehicle (“reasonable suspicion”)? Was it an equipment violation (mud flaps, defective tail light, improperly illuminated license plate)? Or was it a stop based on a moving violation? For example, improper lane travel. See Washington v. Prado. The Prado court engaged in the first higher court analysis of RCW 46.61.140(1). The interesting element about the Prado case is while Division One found that a single deviation, for one second, by two tire widths did not violate RCW 46.61.140(1)’s directive that a vehicle “be driven as nearly as practicable entirely within a single lane” the Court wrote its’ opinion in the plural: “We believe the legislature’s use of the language ‘as nearly as practicable’ demonstrates a recognition that brief incursions over lane lines will happen.” State v. Prado, 145 Wn.App. 646, 649 (2008). This interpretation in the plural likely stems from the State of Arizona case relied upon by Division One, State v. Livingston, 206 Ariz. 145 (Ct. App. 2003), which the Prado court summarizes as determining the “’as nearly as practicable’ indicated an express legislative intent to avoid penalizing brief, momentary, and minor deviations of lane lines.” State v. Prado, 145 Wn.App. 646, 648 (2008). The Prado court went on to additionally cite a second component of analysis under RCW 46.61.140(1) that the “officer testified there was no other traffic present and no danger posed to other vehicles.” Id. at 649. In a nut shell, weaving within your own lane should not be a basis for law enforcement to stop you. Touching the fog line once for a brief period also should not be a basis for law enforcement to stop you.

Personal Contact – Did the police officer have a lawful basis to ask the driver to exit the vehicle (“reasonable suspicion”)? In other words, if the vehicle was stopped for an equipment violation or even a moving violation – why is the driver being asked to step from the car? Why is a stop based on a traffic infraction evolving into a separate criminal investigation like driving under the influence? Keep in mind, if you really are just being investigated for a traffic infraction, all the officer needs is license, registration, proof of insurance and he will likely check his computer for warrants. Why does the cop require more information than what he/she is entitled to under RCW 46.61.021(2), which reads as follows: Whenever a person is stopped for a infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person’s license, insurance identification card, and the vehicle’s registration, and complete and issue a notice of infraction.”? Where does it say, “step out of the car”? It does not. We need to look at the legal justification for asking you to step out of the vehicle. See State v. Allen. Removal of a driver from a vehicle stopped for an infraction can be premised upon two grounds: (1) Removal is within in the scope of the original traffic stop, or (2) the officer since the time of the stop has acquired lawful, reasonable suspicion for further investigation. State v. Allen, 138 Wn.App. 463,471 (2007). In State v. Allen, the Court of Appeals clarified that removal of a driver from a vehicle is not part of the scope of traffic stop for a license plate violation, when the driver was questioned regarding the passenger’s identity, this removal is akin to a “fishing expedition”. Id. at 471 (citing State v. Reding, 199 Wn.2d 685 (1992)).

Once the initial purpose of the stop is completed, further detention of the driver must be justified by reasonable suspicion of criminal activity. State v. Armenta, 134 Wn.2d 1, 15-16 (1997). The moment a person is asked to step out of the vehicle, a seizure has occurred for Fourth Amendment purposes because at that point a reasonable person would not have felt free to leave. State v. O’Neill, 148 Wa.2d 564, 583 (2003). The remedy for a Fourth Amendment violation is suppression of all subsequent evidence. When “an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.” State v. Kennedy, 107 Wn.2d 1 (1986). The burden is always on the State to prove one of these narrow exceptions.

Pre-arrest Screening – Is there probable cause to arrest the suspect? Investigatory stops must not exceed duration and intensity necessary to confirm or dispel officer’s suspicions; if the stop exceeds these limitations, it can be justified only by showing of probable cause. State v. Mitchell, 80 Wn.App. 143, 906 P.2d 1013 (1995); See State v. Williams, 102 Wn.2d 733, 689 P.2d 1065 (1986) (Detention of defendant, who was observed leaving in his car from scene of possible burglary, was not a valid investigatory stop, where police did not ask him why he was in vicinity until after they ordered him out of car, frisked him, handcuffed him, placed him in squad car, investigated house and called for canine unit, police did not and could not articulate a reason for believing that defendant was dangerous, the detention was not related to an investigation focused on defendant and stop took approximately 35 minutes, so that intensity and scope of the intrusion were improper). See State v. Flores-Morena, 72 Wn.App. 733, 866 P.2d 648 (1994) (Passage of only few minutes from time defendant was first detained until dog reacted to drugs in car was “reasonable” amount of time, as required under Terry). See State v. Lund, 70 Wn.App. 437, 853 P.2d 1379 (Terry stop must be limited in duration; 90 minutes is too long, while 20 minutes may not be under certain circumstances).

Why are the Answers to these Questions so Crucial?

These questions are important because any of them could potentially lead to the dismissal of your case entirely. Or reduction of your case to a lesser charge like Negligent Driving in the First Degree. Or a reduction from a criminal charge to a non-criminal traffic infraction like Negligent Driving in the Second Degree. I say this because I am speak from experience. My advocacy has led to the dismissal of DUI charges pre-trial and reduction to lesser charges and traffic infractions. In my line of work “technicality” is not a four-letter word.

Under Phase 1 — if the officer did not have a lawful basis to stop the vehicle, the appropriate remedy under the law is suppression of all evidence flowing from the illegal stop under the exclusionary rule. We call this “the Fruit of the Poisonous Tree”. Put another way, if your car was stopped illegally. You can move to suppress all evidence stemming from the illegal stop including incriminating statements / performance on field sobriety tests / even your BAC. Why? Because the evidence was obtained illegally by the police based on an unlawful stop.

Under Phase 2 — if the officer did not have a lawful basis to have you exit your car, again all evidence flowing from the moment you stepped out of your car including the breath or blood test may be subject to suppression under the exclusionary rule.

Under Phase 3 — if the officer did not have probable cause to arrest you, all evidence flowing from the moment you were arrested is subject to suppression, again, including subsequent breath or blood tests, as well.

Read Casting Reasonable Doubt on the Government’s Case for more information on defending DUI/DWI cases…