The Law Of DUI:  Hints, Allegations, And Things Left Unsaid

Article by Jonathan Rands, Bellingham, Washington DUI Lawyer

There is a wealth of information out there regarding DUIs.  Unfortunately, the information is likely completely untrue, half-true, or a firmly established urban myth (remember the penny in the mouth will fool the breathalyzer?)

This is because DUI laws are a myriad of statutes, Washington Administrative codes, Washington State Patrol Breath Test Section Procedures and Protocols and little-known DOL regulations and case law interpreting them, all of which seems to change weekly. 

Jonathan Rands
Bellingham DUI Attorney

Add to this mix that the recent Supreme Court decision in City of Fircrest v. Jensen, has as many interpretations as there are district court Judges, and the previously clear rules on admissibility of breath test are now clearly unclear.  If this were not confusing enough, there is the current fiasco originating out of the State Toxicology lab where years of science has been ignored by managers and employees alike in favor of sloppy practices and “helter skelter” procedures geared toward convictions rather than unbiased legitimate scientific procedures and practice.  Such disregard for the most basic scientific method as well as the justice system in general has over 18,000 breath test results teetering on the brink of suppression as this is being written.

It is for these reasons that DUI litigation is a fluid and complex area of law.  Consequently, a DUI  charge is not the type where any lawyer can just pick up and help extended family members or a kid brother as a means of saving them a few bucks on fees.  The lasting collateral effects of just having been charged with a DUI can impact a citizen from unfathomable car insurance rates to being excluded from international travel for years.  The effects of a conviction for DUI can will follow a person around for a lengthy period of time.  In some case, even if the charges are dismissed, your ability to travel to friendly neighbors like Canada can be impacted.  This is the tip of the iceberg. Here are a few more relatively unknown DUI impacts:

Going To Canada? Not So Fast:  A trip across the border from Washington, or any State for that matter to Canada used to be done by answering the firearms or tobacco questions in the negative and presentation of a driver's license. However, post 9/11, those days are over.  Last February a Lake Tahoe resident was headed to Whistler to begin a well planned five-day ski trip, but he was sent back to the United States because of a DUI conviction seven years ago. He was moved to a room where “there must have been 75 people in line," and he was there for three hours. One woman was in tears. A guy was sent back for having a medical marijuana card!  In this Brave New World, the border guards have more “double speak” and security than Orwell’s Big Brother. 

Thousands of unsuspecting people are turning up at the Canadian border expecting clear sailing, only to find that they are turned away.  Even if that DUI was 20 years ago, the hapless driver is at risk of being turned around and refused entry.  According to the  Canadian Consulate's Web site “it is important to understand that you are entering another country and what many attorneys do not  know is that, Driving while under the influence of alcohol is regarded as an extremely serious offense in Canada.''   If you must travel to Canada, and you have any sort of criminal conviction, recent or decades old, you should apply for "a Minister's Approval of Rehabilitation" to wipe the record clear.

If you don't need to travel to Canada, don't think you won't need to clear your record as it is  just a matter of time before agreements are signed with governments in destinations like Japan, Indonesia and Europe.   This is just the edge of the wedge.' For more information on offenses that prohibit entry to Canada, go to the Canadian Consulate's Web site at geo.international.gc.ca/can-am/seattle/visas/inadmissible-en.asp.  and for more information on visiting Canada, go to www.cic.gc.ca  Unfortunately for US residents, the only person who can truly aid you in expeditiously resolving past convictions is a lawyer who is admitted to either the bar of the Province to which you seek entry, or a lawyer admitted to the Canadian Bar. Finally, don’t think that because the charge has not yet been resolved, you will be safe from rejection at the border.  If a potential visitor reports to the border or immigration and found to have a pending charge, Canada treats such visitors,  “under indictment” as they call it, just as harsh as those convicted.  Turn around.

Interlocks And Temporary Driver’s License:  Some call them the “blow ‘n go,” or the “car breathalyzer.”  Even if the DUI charge is dismissed or reduced to a lesser charge, the driver may need one.  How can that be?  The Department of Licensing will be the first government agency to want to take your license and they will do so a mere 60 days after a DUI arrest if the proper steps are not taken to challenge the action.  Even if a driver contests the proposed suspension/revocation the DOL may still take a drivers license.  If it does, a driver will have to get through either 30 days (1^st DUI arrest with breath sample); 90 days (1^st arrest with a refusal of a breath test); or 365 days (a second DUI arrest within 7 years) without driving at ALL.  After these time periods, if a person wishes to drive during the balance of their suspension they must apply for a Temporary Restricted License (TRL) from the DoL.  This requires showing proof of installation of an interlock in the applicant’s car(s) at the time of the application, as well as paying a one hundred dollar application fee, and also showing proof of high risk insurance (SR22).  But the application is not done yet, you need to have your employer sign off on you application stating that you need to drive for work!  Oh, and just to make things even more complicated, the processing of the application is currently taking around 4 weeks to process these days.  The interlock device remains in the car for the duration of the license suspension.  This all can happen long before the criminal case is complete.  That’s not all, however. In the end, if the driver is convicted of DUI, the interlock requirement becomes mandatory for one year after reinstatement of the license.

“Refusing The Breath Test Will Deprive Them Of Evidence.”  While this may be true in some states and in some circumstances, it generally makes a defense more onerous.  You see, what most people don’t realize is that when you obtain a driver’s license you have entered into a contract with the DoL.  By accepting that license you have given what is called “Implied Consent” for providing a breath sample when lawfully requested by an officer.  While you may revoke that previously given consent at the time the breath test is requested, you have also agreed that the punishment for doing so will be a one year license revocation! In fact, if you are found guilty in a court of law of that underlying DUI and a jury or judge also finds that you refused, that license revocation goes form one year (first offense) to two years! If you refused how can the State prove their case?  Consciousness of guilt.  Simply put, the government will try to convince a jury that the reason you refused was because you believed that you would blow over the legal limit.  While a “refusal” may deprive them of evidence, that same refusal may well deprive the person of the ability to drive for a much longer period of time than had the person provided a breath sample.

“I have a Friend Who Got a DUI And.  .  .”   Each and every case is different.  Different officer most time, different reason for the stop, different conversation while in the car, different explanation of roadside field sobriety tests, different breath test, different theory of suppression the breath test depending on different ongoing evidentiary issues, different prosecutors, and different lawyers.  While the charge may be the same, it is a rare thing for one person to have their case resolved in exactly the same manner.  While similar results may be obtained, it is usually that the common factor is the lawyer  who represented the citizens.  Each case has to be approached from a different perspective and different perspectives requires different tools.  Some lawyers have a toolbox but with only minimal tools and consequently achieve minimal results. Other lawyers have a toolbox that is full of tools and they are more prepared and equipped to handle even the most difficult case.  Unfortunately, obtaining the tools takes a tremendous amount of time and many lawyers who do not focus their practice on DUI fail to attend sufficient training sessions, or if they do, they do not spend their time maintaining what was learned.  DUI knowledge and skills are no different than any other skill set, “use it or lose it.”

Jonathan Rands practices DUI defense in the Bellingham office of Fox Bowman Duarte, PLLC. He can be reached at jrands@foxbowmanduarte.com and through www.foxbowmanduarte.com.