The Washington State Supreme Court has thrown out a man's DUI conviction because it was never proven that he was advised of his right to have an independent blood test at this own expense in Spanish.
The Implied Consent Warning is a something that is read to DUI suspects prior to law enforcement asking them to submit to a breath or blood test. The warning outlines what happens to a persons license if they take the test and its over the legal limit or if they decline the test. It also also informs them if their license gets suspended they may be eligible for an ignition interlock license, and they have the right to have additional tests administered by any qualified person of your own choosing. In other words the DUI suspect as a right to have an independent test done at their own expense. Such a test may be introduced at trial.
In the Washington State Supreme case, the defendant was convicted of a DUI and hit/run. During the arrest the Trooper had an interpreter read the implied consent warning to the defendant. However at trial the interpreter was never called to testify and therefore it couldn't be shown whether the defendant was advised of the right to an independent blood test..
To read about the case click here
Friday, January 27, 2012
Thursday, January 12, 2012
New push to reinstate DUI sobriety checkpoints in Washington State
Recently legislation has been brought forth in Washington state to reinstate DUI sobriety checkpoints. Currently there are 11 states in the country that do not employ DUI checkpoints, and Washington state happens to be one of them.
This practice ended in the 80's when the Washington State Supreme Court found it unconstitutional. Now some state lawmakers, including some political action committees want to bring it back citing the increased level of DUI fatalities in Washington state. According to data they cite Washington State is 6% higher in DUI fatalities than the national average.
Im all for making the roads safer for the residents of the State. But at what cost should we be doing this. Washington states constitution provides for greater privacy protections than the US Constitution. To conduct these roadblocks, pull over, interrogate, and invade a persons privacy rights through unconstitutional searches and seizures is a problem in my mind. Currently Washington state allows for DUI emphasis patrols. Im fairly certain that the areas where these patrols are being conducted are areas that have had greater DUI fatalities or DUI related accidents than other areas. Although I believe these patrols can create potential problems with pretextual stops, this has been found to be constitutional.
The other issue that DUI sobriety roadblocks can cause is the financial burden it will impose on tax payers. Think about it, to shut down entire roads or areas, man these areas with numerous officers and/or state troopers, the planning and implementing all comes at a cost. And guess who will foot that bill. We the tax payers will. In addition I would be curious as to what percentage these DUI sobriety checkpoints actually result in a DUI arrest. I have seen some statistics from other states that its less than 1%. Now to me that doesnt seem like enough of a return to conduct unconstitutional searches and seizures. But hey I guess thats just the sensible Defense Attorney in me who happens to be concerned with our State budget and increased taxes.
Keep an eye out for this. HB 1912 in the Washington state legislature. Should be interesting.
This practice ended in the 80's when the Washington State Supreme Court found it unconstitutional. Now some state lawmakers, including some political action committees want to bring it back citing the increased level of DUI fatalities in Washington state. According to data they cite Washington State is 6% higher in DUI fatalities than the national average.
Im all for making the roads safer for the residents of the State. But at what cost should we be doing this. Washington states constitution provides for greater privacy protections than the US Constitution. To conduct these roadblocks, pull over, interrogate, and invade a persons privacy rights through unconstitutional searches and seizures is a problem in my mind. Currently Washington state allows for DUI emphasis patrols. Im fairly certain that the areas where these patrols are being conducted are areas that have had greater DUI fatalities or DUI related accidents than other areas. Although I believe these patrols can create potential problems with pretextual stops, this has been found to be constitutional.
The other issue that DUI sobriety roadblocks can cause is the financial burden it will impose on tax payers. Think about it, to shut down entire roads or areas, man these areas with numerous officers and/or state troopers, the planning and implementing all comes at a cost. And guess who will foot that bill. We the tax payers will. In addition I would be curious as to what percentage these DUI sobriety checkpoints actually result in a DUI arrest. I have seen some statistics from other states that its less than 1%. Now to me that doesnt seem like enough of a return to conduct unconstitutional searches and seizures. But hey I guess thats just the sensible Defense Attorney in me who happens to be concerned with our State budget and increased taxes.
Keep an eye out for this. HB 1912 in the Washington state legislature. Should be interesting.
Friday, December 16, 2011
How a DUI arrest can affect a commercial drivers license
A DUI arrest can have many consequences, both direct and collateral. Everyone knows that a DUI carries jail, fines, alcohol treatment, probation, ignition interlock device requirements, and personal license suspensions. But if you're a holder of a commercial drivers license (CDL) you face a loss of that license in addition to your personal license.
What I would like to discuss is what happens to a CDL after a DUI arrest in a personal non-comercial vehicle. From previous blog posts anytime a person is arrested for a DUI they most likely will face 2 legal actions. One is with the Washington Department of Licensing, and the other is from the Judicial system. Depending on what happens from either of those legal actions, a CDL holder may be affected.
So lets take a closer look at what happens at the DOL hearing. First if you win the DOL hearing then there is no CDL disqualification. If you lose the DOL hearing and its your first violation under RCW 46.25.090(1) then you face a 1 year license suspension. If you lose the DOL hearing and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.
Now lets look at what can happen in the criminal case. In a criminal case for DUI charge a person basically has 5 different things that can happen to them.
First if you beat the DUI charge in the criminal case then no CDL disqualification.
Secondly if you get convicted of the DUI and its your first violation under RCW 46.25.090(1) then its a 1 year CDL disqualification. If you get convicted and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.
Thirdly if you get the DUI charge reduced to reckless driving and you have a prior serious traffic violation within 3 year you will face a 60 day CDL disqualification. If you have two or more prior serious traffic violations within 3 years then its a 120 CDL disqualification.
Fourthly if you get the DUI reduced to negligent driving then there is no CDL disqualification but it will count as a prior serious traffic offense.
And lastly if you're considering a deferred prosecution from my reading of the statute it is unclear who this will be treated by DOL. It is clear that a deferred prosecution will not stay the disqualification of the CDL in the DOL hearing.
If you have been arrested for a DUI, and you carry a CDL its important to speak with a DUI attorney that not only understands, but can help you navigate the waters of the CDL and disqualification. Remember many attorneys out there claim to be DUI attorneys, but reality they are pretenders. Contact my office today to schedule a free 60 minute consultation that is completely confidential to discuss your options and rights when facing a DUI arrest.
Leyba Defense PLLC | Seattle DUI Firm
What I would like to discuss is what happens to a CDL after a DUI arrest in a personal non-comercial vehicle. From previous blog posts anytime a person is arrested for a DUI they most likely will face 2 legal actions. One is with the Washington Department of Licensing, and the other is from the Judicial system. Depending on what happens from either of those legal actions, a CDL holder may be affected.
So lets take a closer look at what happens at the DOL hearing. First if you win the DOL hearing then there is no CDL disqualification. If you lose the DOL hearing and its your first violation under RCW 46.25.090(1) then you face a 1 year license suspension. If you lose the DOL hearing and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.
Now lets look at what can happen in the criminal case. In a criminal case for DUI charge a person basically has 5 different things that can happen to them.
First if you beat the DUI charge in the criminal case then no CDL disqualification.
Secondly if you get convicted of the DUI and its your first violation under RCW 46.25.090(1) then its a 1 year CDL disqualification. If you get convicted and its your second or subsequent violation of RCW 46.25.090(1) then its a lifetime disqualification.
Thirdly if you get the DUI charge reduced to reckless driving and you have a prior serious traffic violation within 3 year you will face a 60 day CDL disqualification. If you have two or more prior serious traffic violations within 3 years then its a 120 CDL disqualification.
Fourthly if you get the DUI reduced to negligent driving then there is no CDL disqualification but it will count as a prior serious traffic offense.
And lastly if you're considering a deferred prosecution from my reading of the statute it is unclear who this will be treated by DOL. It is clear that a deferred prosecution will not stay the disqualification of the CDL in the DOL hearing.
If you have been arrested for a DUI, and you carry a CDL its important to speak with a DUI attorney that not only understands, but can help you navigate the waters of the CDL and disqualification. Remember many attorneys out there claim to be DUI attorneys, but reality they are pretenders. Contact my office today to schedule a free 60 minute consultation that is completely confidential to discuss your options and rights when facing a DUI arrest.
Leyba Defense PLLC | Seattle DUI Firm
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