Posts Tagged ‘DUI’

Police, judges, and other public officials often mess up like the rest of us by getting a DUI.   The cases inevitably make the newspaper, as well they should.  However, I am often a little surprised by how the media portrays DUI cases that are resolved with a “deferred prosecution”.  A deferred prosecution is when a DUI defendant gives up his right to a jury trial, and the case is continued for five years.  The defendant gets fives years of probation and alcohol treatment, and if he stays out of trouble then he may have the case dismissed at the end of 5 years.   Under Washington law, any DUI defendant is eligible for a deferred prosecution if he or she has not had one before.  So why is it that the news media portrays this as some sort of special deal reserved for people with “connections”.   For example, look at this headline in the Spokesman-Review: “Police Sergeant Avoids Prosecution“.   The article goes on to explain that the defendant has to go to alcohol treatment and stay out of trouble for five years.   How did the public react to this story?  Let’s look at the comments to the story that are posted online.  “Tinman” wrote: “WHERE DO I GET ONE OF THOSE ”GET OUT OF JAIL” CARDS FOR MYSELF??!!”   The answer is any district court in the State!  The forms are online here!  Last summer a city manager in Burien signed up for a deferred prosecution for a DUI, and the headline read that the judge “granted” the deal.  An angry comment read: “It seems we have a two tier judicial system, one for the rich/politician and one for Joe six pack.”  The truth is that the deferred prosecution is easy to sign up for, but difficult to complete.  The treatment is rigorous, and the conditions of probation severe.  Random UA tests are done that can detect alcohol use within a period of 72 hours.  People who complete the programs are in the minority.  I remember when I was a prosecutor, the judge and I were always glad to see someone successfully complete such a program.  Now that I am a criminal defense attorney, I always make sure that my clients know what they are getting into when they sign up for such a program.  It is truly for people who wish to quit drinking.

Let’s face it, when people generally look for an attorney, they are looking for an attorney to really shine when it comes to the trial or maybe at a motions hearing.  You don’t really hear people say that you should hire so-and-so because they are “really good at arraignments”.   Yet, I have found arraignments to be very important to clients for the following reasons: 1) Defendants sometimes appear for an arraignment before hiring or speaking with a criminal defense attorney,  2) The arraignment is often the client’s very first appearance in court, and 3) The arraignment can often be intimidating because it is often on a crowded docket day, when many people are watching.

Arraignment on DUI Charge: Although you might suspect the arraignment of a major felony to be the most complicated, it is actually arraignments on DUI charges that can be the most complicated.   While some arraignments can be waived by counsel, a DUI charge typically requires that the defendant appear in person to have conditions of release set.   Like any charge, an arraignment on a DUI charge involves a formal plea of “guilty” or “not guilty”.   Because a plea of “guilty” requires a lengthy plea form, such a plea would likely be set off to a future date.  The court at DUI arraignments will set certain conditions of release if they have not been already set.  The court will typically prohibit a defendant from consuming alcohol or drugs without a prescription.  Additionally a court will often forbid a DUI defendant from being present in any location where alcohol is served for consumption on the premises.   This largely restricts a person’s ability to go out to eat, because a lot of restaurants in the small towns in Stevens, Ferry or Okanogan County have class H liquor licenses.

Arraignment of Drug Cases: On misdemeanor drug cases, an arraignment can often be waived if a person has hired a defense lawyer and the lawyer files a notice of appearance.  In the courts of Ferry County, Stevens County, and Pend Orielle County, you see the growing practice of courts requiring pre-trial UA tests.  I believe that public funding has become available so that if a person is indigent, the county will pay for the testing.  The idea of pre-trial UA tests is obviously preferable to being held in jail prior to trial, but it is usually not a popular requirement.   The UA’s typically can detect marijuana use within a few weeks, and alcohol use for about three days.   Typically, when a person signs up for the UA tests, they are assigned a specific color code.  The person is then ordered to call in by a specific time to see if their color has been chosen for that day.  If it has, the individual must appear for the test by a certain time later that same day.  This responsibility can be problematic because if a person lives in a remote location of  Okanogan County or Stevens County, for example, they may live an hour or more from the testing facility.  They would unexpectedly need a ride to court.  In certain cases, a person may test positive for marijuana due to use of the drug prior to arrest.  Additionally, a person may test positive for opiates due to use of prescription drugs of hydrocodone or oxycontin for example.  A copy of a valid current prescription must be kept at hand.

Arraignment on Violent Offenses:

Arraignment on violent offenses is procedurally much like arraignments on DUI or drug offenses.  For all felony charges, the court will ask the defendant to sign an advice of rights form acknowledging that they understand their constitutional rights.  During the arraignment it is important that no statements are made that could be self-incriminating.  It is the natural human reaction to explain one’s actions.  However, the arraignment is not the occasion for the court to determine the accuracy of the charges.   This idea can often be confusing for a defendant, because the prosecuting attorney will likely summarize or paraphrase the police reports in an attempt to secure a high bail.  And the defense attorney will often attempt to argue the weaknesses of the State’s case based on the limited information available.  However, this dialogue is much different than a defendant attempting to make a first person explanation so as to counter the allegation at hand.  Such statements by the defendant could be used in court at a subsequent jury trial, and often times the judge will interrupt the defendant if he or she attempts to explain the incident that forms the basis of the charge.  Unlike arraignments for DUI or many drug offenses, the court will often impose bail as a condition of release on such violent offenses as assault, robbery, or sex offenses.  Under the Washington State Constitution, the judge cannot hold a defendant without bail on any offense other than capitol offenses.

So if you are interested in exactly how a Superior Court arraignment will go, it usually goes pretty much like this:

Step 1:  The judge calls the case title “State v. Smith”, for example, and then recites the court case number, before inviting the defense attorney and his or client to approach counsel table.

Step 2: The judge will ask the defense attorney if he or she has gone over the advice of rights form with his or her client, and if the defense lawyer believes that the defendant understands the rights.  The prosecution often signs the form before the defense lawyer approaches the bench with the form.

Step 3:  The judge will ask the defense lawyer if the defendant “waives reading” of the “information” which is the court term for the criminal complaint or charging document.   The accused person has a right to have the charges read to them verbatim under the Constitution.

Step 4:  Once the defendant waives reading, the judge will ask the defendant to stand and will ask for example: “To the charge in count one, possession of marijuana, how do you plead? Guilty or not-guilty?”  The defendant responds.  The judge then asks: “To the charge in count two, possession of cocaine, how do you plead?”  Etc.  Sometimes, the only speaking a defendant will do at an arraignment is to say “yes” that he understands his rights, and to say “not guilty” once the charge is read.

Step 5:  The judge will then hear argument as to the conditions of release to be set.  The judge will hear from both lawyer, and then ask the defendant if he or she agrees to abide by those rules.

Step 6:  The judge will often sign a scheduling order providing for the court dates to come.  The judge will set a date for an “omnibus hearing”, a “status hearing” or a “pre-trial hearing” and a jury trial.  An omnibus hearing is the date for the prosecutor and the criminal defense attorney to declare what evidence they intend to use, what witnesses they intend to call, and what defense will be offered.  Sometimes a defendant will not need to appear for an omnibus hearing.  This is a good point to clarify at the arraignment.  A status hearing or a pretrial hearing is a date to confirm the readiness of the parties for trial, and this hearing can go by many different names.   Often times, a client will ask me what the purpose of a particular hearing is, and the short answer is often “that this is a court date is to talk about future court dates.”  That might sound a little silly, but that is our court system for better or for worse.  The last thing I will say about the scheduling order is that a defendant should bring his or her calendar.  If they are unavailable for court due to a surgery or a final exam for example, they should make that known at arraignment, because rescheduling it later can be difficult for the defense lawyer to do.

There are not any video arraignments of Washington Courts that I could find, but below is an arraignment on a murder case off of youtube.

I couple of days ago I received in the mail the Washington DUI Practice Manual, a book by DUI attorney Linda M. Callahan and published by West Publishing, Thomson Reuters.  This most recent copy is the 2009-2010 edition, which is the second such volume. I believe that last year’s edition was the first time that Thompson Reuters published a Washington Practice volume on DUI law.  It is an important edition to the West Washington Practice series.

I have purchased or borrowed many other DUI law books over the years, and I have not found any other books that are as helpful or informative as this book.   With others I have looked at, it has seemed that the material was outdated, or not applicable to Washington State, or that the authors were saving their best strategy ideas for themselves.  The Washington DUI Practice Manual covers it all, it is geared toward Washington State, and it is updated every year.   It is not cheap to buy a new volume every year, but it is worth it to stay on top of the latest changes in DUI practice.  DUI law is considerably different from other areas of criminal defense work in that it changes from year-to-year, and is largely dependent on the scientific reliability of the testing involved.

A DUI case usually begins with a stop by an officer for a traffic infraction, and the officer requests that the driver perform field sobriety tests.  In this book, chapter 21 is dedicated to the science of such tests, and making sure that the tests are administered correctly, and that the jury understands the limits of such tests.

Author Linda Callahan also covers the science of the PBT, which is the portable breath test that an officer typically asks the driver to take while still at his vehicle.

The PBT, or portable breath test is covered in chapter 22 of Linda Callahan's book.

The results of this test are not admissible at trial, but can be considered by the judge in determining whether the officer had probable cause to arrest the driver.  Linda Callahan’s book covers the history of the PBT instrument, the requirements  for its use, the certifications necessary to operate it, and the admissibility of the refusal to take such a test.

Attorney Linda Callahan covers the important information on the tests for alcohol that occur later in a case, namely breath testing and blood testing.  As many are aware, the accuracy of the breath test instruments was called into question recently due to deficiencies in the State Toxicology Lab. (See article.)   Linda Callahan also covers the difficulties that the State Toxicology Office has faced since audits revealed a failure to abide by the rules, regulations and policies regarding the handling of  blood samples.

In addition to DUI defense, the Washington DUI Practice Manual also covers related crimes such as Reckless Driving, Negligent Driving, Hit-and-Run, Reckless Endangerment, Driving While Suspended, Boating Under the Influence, Minor in Possession of Alcohol, Felony Eluding, Vehicular Assault, and Vehicular Homicide.

Linda Callahan also cover in this book the separate proceedings that a driver faces with the Department of Licensing (DOL).  Every year the State Legislature changes the laws governing DOL, and a criminal defense lawyer needs to be aware of the changing laws on license suspensions, SR-22 insurance, and ignition interlock devices.  The Department of Licensing conducts their own hearing on whether a driver had over a .08 breath alcohol or blood alcohol level.  This year a new law went into effect allowing some suspended drivers to obtain an ignition interlock license, and that new legislative change is covered in Linda Callahan’s book.

I would recommend this book to any lawyer who does DUI defense.  I understand that Linda Callahan has also published a book geared toward laypersons entitled The DUI Book, Washington Edition.

The Washington Supreme Court ruled Friday that Tribal police officers may pursue suspects off of reservations to make arrests.    That surprised me.  I always viewed the Tribal authority to make arrests as stopping at the border.

The case is State v. Loretta Eriksen.  A Lummi Nation police officer saw Eriksen commit traffic infractions, and then followed her off the reservation and detained her.   The case analyzed what authority the officer had to detain her off of the reservation.  Eriksen was later charged with DUI.  Her criminal defense lawyer questioned the legality of her stop in district court.

The subject of police officers acting outside of their jurisdiction arises often in my practice.  People often ask me what jurisdiction a city cop has in the county and vice versa.  Under Washington law, the police agencies of Washington State permit vehicle pursuits between local governments under the  Washington Mutual Aid Peace Officers Powers Act of 1985.  The Supreme Court rationalized that the Lummi Nation could act just like a local Washington police force.  However, under Washington law, the Mutual Aid Act (RCW 10.93.120(1)) states  “[a]ny peace officer who has authority under Washington law to make an arrest . . . .”  I guess I just don’t read that as applying to the agents of sovereign political tribes.  I tend to think of Indian Tribes or Nations as separate nations, and was taught this in law school.  Would you expect the police of Mexico or Canada to follow suspects across the border and detain them in the U.S.?

The attorney for the Lummi Tribe, in a persuasive friend-of-the-court brief, argued that to interpret the Mutual Aid Act to apply to local Washington governments but not Tribes would be discriminatory.   I really wonder in the long term if Native-Americans really want their Tribes to be analogized to another local Washington government.  In just about any other court case, the attorneys for the Tribes are analogizing themselves to separate nations such as foreign countries.  Local municipal entities in Washington are not sovereign entities in any way shape or form.   All cities, whether Republic, or Okanogan, or Seattle exist because the state legislature allows them to under RCW title 35.  Local governments are not sovereign or even quasi-sovereign.

The point of the Washington Supreme Court in this case was that people should not be able to flee accountability to Tribal police officers simply by driving of the reservation.    That is true, but it should really be up to the legislature to fix this with a new statute.  Instead, the court created this rule with a somewhat strained reading of the current Washington Mutual Aid Peace Officers Powers.   Another problem I had with this court decision is that the Whatcom County Sheriff’s Department could have eliminated this problem by cross-commissioning the Lummi Nation police.   The defense attorney for Ms. Eriksen pointed this out in his brief.   He explained: “Sheriff of Whatcom County can give tribal officers the power to arrest under Washington law by cross deputizing them, but he has not done so.”  While it is common for Sheriff’s departments to cross-deputize Tribal officers, there is also some discrimination too.  Some county or city law enforcement agents view Tribal Police departments as inferior to their departments.  In my experience, the Tribal Police departments are certainly on par with local agencies, and often exceed local agencies in manpower, and with expertise in the collection of evidence.  The decision of the Supreme Court does not mention the failure of the Whatcom County Sheriff to cross deputize the Lummi Officers.  I feel this kind of lets him off the hook.

In the years to come, certain question will need to be clarified.  If a tribal officer is permitted to leave the reservation to make a detention, how long does an officer have?  Does the officer need to be directly following the vehicle, or can he locate the suspect many hours later at his home in Republic, or West Omak, or Grand Coulee?  If the vehicle successfully eludes the Tribal Officer, can the officer then conduct a man hunt off reservation for the suspect?  What implications will this decision have for the Spokane Tribe or Colville Confederated Tribes?

I discussed other issues related to tribal sovereignty in an earlier post on June 6th.

The Stevens County Commissioners are currently thinking over who they want to appoint to replace Pam Payne as District Court Judge.  As of 12 noon today, a decision had not been announced.  Pam Payne announced her decision to leave the bench last month.  When a Superior Court Judge resigns midway through a term, it is the Governor who makes the appointment.  But with District Court, the decision belongs to the County Commissioners.  Once the County Commissioners appoint someone, that judge faces an election of the voters.  Traditionally, County Commissioners often consider some input from the other judges who preside and often times other government officials and local lawyers write to offer their opinions.  The commissioners then interview prospective candidates.   As well as intelligence, experience, and fairness, the temperament of an attorney is typically considered.  There have been several attorneys whose names have been mentioned as interested in the position.

The District Court judge hears small claims, small suits, name changes, and presides of misdemeanors such as DUI, minor assaults, etc.   Pam Payne always seemed to be pretty well thought of by prosecutors and defense attorneys alike.  I practiced law in front of her regularly my first year of private practice in2003.  I always found her to be very fair.   Pam Payne, while she was a Stevens County Judge, often times would come to Ferry County once per month to preside.