Island County Judge Requires Prosecution To Disclose DUI Breath Test “Bias & Uncertianty” Disclosed To Jury.

August 30th, 2010

Recently, Island County Judge, P. Strow found in favor of all DUI defendant’s when he ordered the production of breath testing bias.  The order for production came in lieu of a order to suppress the tests which is what the defense originally requested when the prosecution had not provided information and calculations regarding the limitations of breath testing.  Furthermore, it was ordered that such information be disclosed also to the jury during a DUI breath test trial. The ruling came in the case  State v. Arnold and while it is a very straight forward concept, it is information that the State Toxicology Lab has been willing to do in only cases where the breath test was within a certain range.  The information sought by the defense was, and is not, a technicality but rather a very real calculation regardless of what the breath test reading is.

In this state, the legal limit is .08, and there is an enhancement for punishment purposes when a driver provides a test at or above a .15.  The concept of uncertainty and the ruling from the court will require a jury to hear that a driver’s breath test may in fact be under a .08 or under a .15 when the test is close to those numbers.  Since the difference between .08 and .07 is the difference between a criminal conviction and a finding of Not Guilty.  Likewise, the difference between a .14 and .15 is equally important because a first offense DUI conviction with a breath test of .14 requires a person to spend 1 day in jail and suffer a 90 day license suspension, while a conviction for a .15 breath sample is 2 days of jail and a 1 year license revocation.  In the case of a driver who has a prior DUI conviction, the difference in mandatory sentencing is 15 days of jail, 30 days of Electronic Home Monitoring and a 2 years driver’s license revocation.  Whenever there is a test that is close to these legal limits and sentencing enhancements, the accuracy of the test and the testing instrument and program should be of paramount concern.

Currently, the Washington breath testing program lags behind most states in the nation with its technology and uses one of the oldest and most obsolete machine to determine a driver’s guilt or innocence and likewise before a case ever sees a jury trial, that same obsolete and problematic machine is used by the Department Of Licensing to suspend a persons driving privilege for at least 90 days.

As I have mentioned numerous times few if any people (including DUI lawyers) believe that DUI is a good thing, rather, what I advocate for is good proof, the highest standards in place for analyzing breath, and only the most current and reliable methods of the breath testing program to be in place.  There are such standards in place for DNA testing to solve the most reprehensible of crimes so why is DUI any different?  It should not be “easier” to convict a person of DUI simply because it is considered a lesser crime.  In fact, i think the opposite is true as evidenced by the outcry of citizens upset with the issue of DUI in this state and Country.  In fact many citizens are seeking harsher penalties and it is because of this likelihood that the evidence used to convict a person MUST scientifically reliable above reproach.  It is only then that we can be satisfied that the person was in fact guilty of the crime charged.

Law is no different than the rest of the world and as we gain a more reliable method, techniques, and technology to accurately determine a breath or blood sample we must embrace it.  Currently, the State Patrol has new cutting edge breath testing machines in storage, but has not yet implemented them for budgetary reasons. As a result, Constitutional right to a fair trial, proof beyond a reasonable doubt, and ultimately the guilt or innocence of some driver’s close to the limit, or close to a sentence enhancement falls prey to a budget rather than the best possible evidence.

Since there is a an ability to use and implement new methods and technology of breath testing to be certain beyond a reasonable doubt, there is also an increase in excluding those that are innocent of the crime. Currently, if a person provides a breath sample of .081 on any given breath test machine in this state, it is more likely that they are under the legal limit.  However, if a jury is not told this, if the bias and the “uncertainty” of the breath sample and procedure behind the test is not disclosed a jury will likely make a wrong decision as a result of being uninformed, and a conviction that cannot be undone by later more advanced testing cannot fix the problem.  It is only through intellectually honest rulings such as this one, where the legal system progress and advance to more reliable and accurate testing measures.  Currently King County awaits a ruling on this issue as does Whatcom County where Judges have heard the motion and testimony and are writing their rulings, while in Island and Skagit this issue is resolved.  These ruling come on the heels of poor science and testing procedures exposed 2 years ago while the State Toxicology Lab struggles to recover from a scathing ruling that suppressed breath tests in King County.  This ruling remains intact as of today’s date.

In the end what is sought is only the use of the best science be used to ensure what our state and federal constitutions demand: Proof Beyond A Reasonable Doubt.  This cannot be achieved unless  its counter part is enforced: It is better to allow 9 guilty persons go free than to wrongfully convict 1.   This is what the law is build upon.  This is what unpopular crimes like DUI require despite emotionally driven rational and rhetoric.

DUI is not a simple charge.  Defense of the charge is not to be taken lightly nor is it for the inexperienced, or even an average lawyer.  Rather is requires a highly specialized level of understanding, skill, passion, and compassion.  Jonathan Rands is experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or  alcohol related arrest, contact Jonathan Rands at http://www.jrandslaw.com| Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.

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Posted in DUI Prosecution, Island County DUI, Jonathan Rands, Skagit County DUI, Under leagl limit breath test, Washington DUI Arrest, Washington DUI Breath Test Evidence, whatcom DUI | No Comments »

Bad Facts Make Bad Law: Felony DUI And Proof Beyond A Reasonable Doubt Reduced.

August 21st, 2010

This week the Court Of Appeals issued a ruling that appears to lessen the prosecutions burden when it decided the issue of prior offenses for the purposes of the felony DUI statute.  The ruling came from Division One of the Appeals Court, State v. Paul 2010 .  Division One’s decisions are binding authority on all lower courts (Superior, District, and Municipal) that are geographically located north of Interstate 90 and east to the mountains.  The only higher state court is the Washington Supreme Court and unless it is appealed to the Supreme Court, or there is a irreconcilable conflict in this area of law between Division One and future decisions from Division’s Two and Three, this case will be the final say for some time.

The question presented for the Court was “[w]hether the court or a jury must determine if a person has four or more prior offenses that qualify as a predicate offense to elevate a misdemeanor DUI to a felony?”  Since this was a new issue for the court it turned to other areas of law where prior convictions elevate a crime from a misdemeanor to a felony.  Specifically the Court wrote:

“under two other nearly identical statutory schemes, our appellate courts have held that while the existence of a prior conviction is an essential element that must be proved to the jury beyond a reasonable doubt, the question of whether a prior conviction qualifies as a predicate offense for purposes of elevating a crime from a misdemeanor to a felony is a threshold question of law for the court to decide.”

“[F]our prior DUI offenses is an essential element of the crime of felony DUI that must be proved to the jury beyond a reasonable doubt, [the question of] whether a prior offense meets the statutory definition and qualifies as a predicate offense is not an essential element of the crime. Rather, the question of whether a prior offense meets the statutory definition is to be decided by the court before admitting a prior offense into evidence at trial.”

As a result, the trial court looks at the evidence presented outside the presence of the jury and decides if there are in fact prior crimes, in this case 4 prior DUI convictions within 10 years of the current DUI charge, that act as predicates, or prerequisites to making the current charge a felony.  This analyses by the Court was no real surprise as the law is logical and like issues are typically decided in a similar fashion.  Since the issue of these priors was a “first impression” in this area of law, the Court sought guidance from other cases where priors are used to make a crime a felony

In this case, the court did in fact look at evidence of priors, but in doing this the Court encountered a slight twist because one of the defendant’s prior DUI conviction was in California, so the Court was also required to determine whether the California conviction was a “similar conviction” and therefore qualify it as a legal predicate.

The trial court and Appellant court engaged in a legal analysis comparing the elements of the crime of driving while under the influence under California Vehicle Code § 23152(a) and the Washington crime of driving under the influence in violation of former RCW 46.61.502(1).  Upon seeing how similar the two states were, the California DUI conviction under California Vehicle Code § 23152(a) would have been a violation in Washington under RCW 46.61.502.

The next step of the analyses was to determine whether there were in fact four priors and while this is an expected and rational step, it is the evidence that was used to PROVE the priors is where concern lies.

Since the burden of proof rests upon the prosecution it is up to the prosecutors to prove the priors and in this case they presented evidence in the form of certified copies of court records showing a conviction for two Seattle Municipal Court convictions and the docket for the DUI conviction in Everett District Court.  With respect to the 1998 California DUI conviction, the court admitted a certified copy of the complaint charging Defendant with violation of §23152(a) of the California Vehicle Code. The complaint alleges that Chambers “while under the influence of an alcoholic beverage, drove a vehicle.” The court also admitted certified copies of the California docket, the order granting a conditional sentence, and a “DUI Waiver of Rights and Plea Form.

All of these documents were admitted with NO OBJECTION from the defense attorney.  A close reading of the case makes one wonder if defense counsel had some strategy in mind despite since there was no objection, but subsequent to the conviction the Defense counsel appeals and makes a new argument contrary to the trial argument and in violation of trial practice 101 as pointed out by the Court of Appeals: “it is undisputed that Chambers did not object to admission of the evidence establishing her three prior DUI convictions in Washington, she waived any claim of error as to those convictions.”

Since there was no objection the evidence relied by the trial court in the form of computer entries and unchallenged driving records the standard of proof has been substantially lowered because there was no challenge to the person or persons who made the entries, no challenge to the accuracy of the “record,” no challenge to whether the driving record was actually that of the defendant, and as a result of no objection future cases under Division One jurisdiction will unlikely be able to make these challenges with success because this case will be looked to as having the final say for some time.

This is where the burden of proof appears to have been watered down and now threatens the actual standard of proof of priors “beyond a reasonable doubt.”  Trial counsel’s failure to object was a significant error, but in my opinion the bigger error was appealing this case given the facts and the record created by trial counsel.   There is a saying every law student learns in law school: “Bad facts make bad law.”

Future Felony DUI defendant’s in Whatcom, Skagit, Island, San Juan, Snohomish, and King County are now bound to this ruling.  The proof offered by the Prosecution in support of the priors is now going to be production of a paper trail. Rather than proof beyond a reasonable doubt, the prosecution can now simply produce a screen capture of computer docket entries and maybe a driving record that is also computer generated. Therefore the right of confrontation is also lessened along with the burden the prosecution bears, or as it may be now, no longer bears.  A constitutional right with hundreds of years of historical protection appears to have been eliminated.

The crime of DUI at any level, misdemeanor or felony is serious and complicated not only for the defendant facing the charges, but as seen above has an impact upon the DUI defendant’s and citizens of Washington State when the charges are not handled by an experienced and knowledgeable defense attorney.   It is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory.  If you or someone you know is facing a DUI or  alcohol related arrest, contact Jonathan Rands at http://www.jrandslaw.com| Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.

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Posted in DUI Prosecution, Felony DUI, Island County DUI, Jonathan Rands, Skagit County DUI, Washington DUI, whatcom DUI | Comments Off

Drive Hammered (Under The Limit) Get Nailed?!

August 14th, 2010

This week in Whatcom, Skagit, Island, and many other counties in Washington State, the “Drive Hammered get Nailed” campaign begins and continues through Labor Day.  While the message is clear, — You’ll likely get Nailed by local and state law enforcement if you drive hammered, the actual effect is such that some legally sober driver’s will be caught in this overly wide “net” that is cast by law enforcement.

There is no doubt that the enforcement of laws is a good idea, there is also no doubt that enforcement of the State Drunk Driving Law (RCW 46.61.504-DUI) is likewise a good idea, but whenever such a widespread and focused hunt begins, innocents are always caught up in the frenzy of this campaign.  Nevertheless, this campaign joins together, the Whatcom County Sheriff’s Office, Bellingham Police Department, Ferndale PD, and Western Washington University police, and the State Patrol in the effort to patrol the local county roads with vigilance.

While I am the first person to say that the best way to avoid a DUI is to Not Drink and Drive, I am also the first to point out that such behavior in our state is perfectly legal—as long as consumption is done responsibly so that the legal limit if .08 is neither reached nor exceeded, nor is the person “affected by” the alcohol drank.  Well how much is that?  While everyone is different, common sense should tell is that if you under a .08 you are not affected otherwise why would we have such a limit?

So how do Non-Drunk Driver’s find themselves “Nailed” by this campaign despite not being Hammered?  Simple, they drink, then legally drive, then they are stopped by law enforcement who have a mandate under this campaign to make a certain amount of contacts with driver’s per hour; so driving issues that would not get you stopped at 5pm will in fact get you stopped after 1030 or 11 pm.

Once stopped, a driver  who has legally consumed alcohol will smell like alcohol.  They will be asked if they drank and having nothing to fear, will admit to drinking.  To ensure that a person “is safe to drive away” an officer will likely request that you perform a series of roadside “sobriety” tests which have more to do with balance, and coordination they sobriety.  While they are a voluntary test, and as such should be politely declined, many drivers do not know this, and they think the tests are fair and they have nothing to fear.  The tests, however, they are a simple tool that is seriously flawed and the sole judge of your performance on these tests is the officers who will likely err on the side of caution and place the driver under arrest.  BUT I AM NOT DRUNK OFFICER?

While it may very well be true, officers hear this all the time and so the protest falls upon deaf ears.  Once under arrest the driver will be transported for a breath test and for the truly responsible driver they will blow less than the legal limit.  So is the driver then released?  Sure, but not without a citation for DUI and a date with a Judge to now face the charges of DUI, despite being under the legal limit.  How can this be possible?  Need some proof? I current represent someone in this exact situation.  Furthermore, the State Patrol is in charge of the breath testing program and every single time the breath test machine is used, even if there is a refusal, the database keeps a record of the event and the citation number assigned.   http://breathtest.wsp.wa.gov is the site where breath testing data is collected from all breath test machines in the state of Washington.  Peruse it, the evidence of numerous under .08 breath tests for driver’s over the age of 21 is right there.

I have searched the online breath test site for just one of the breath test machines in Whatcom County, located at the jail.  Beginning the search on June 1, through today’s date here is what is there:  June 15 a 57 year old driver was arrested and cited for DUI after having provided a .06 and a .07 breath sample; June 18, the same officer arrested and cited a 26 year old for DUI who provided breath samples of .07 and .07.  In July, a 42 year old driver was arrested for DUI and that driver provided samples of .07 and .06; another driver, age 24 also arrested and provided breath test samples of .06 and .06; two days later a 21 year old also faces a DUI with breath samples of .04!  As I continue to look through the machine there are another 7 people, over the age of 21 all provided breath samples of UNDER the legal limit!  These are only the numbers when there is no emphasis, this is just regular patrol. This is also just one breath testing machine and there are at least 8 in various locations of Whatcom County.

Overall, there are far more tests results that exceed the .08 legal limit, but that does not change the fact that each of the people under .08 are factually and legally innocent of the charge.  That very important detail, however,  does not change fact that these innocent drivers now faces severe consequences for their legal behavior.  This is mostly due to the nature of the crime of DUI and the rhetoric that supports this type of emphasis patrol.

Supporters of these emphasis patrols use statistics to justify the campaign.  This year Traffic Safety Commission Chief Lowell Porter states that “If we take about 5 years worth of data and average it, about 31 percent of the fatal crashes involving impaired drivers for the entire year occur in July August and September those 3 months.”  The trouble with numbers like these is use of terms like “impaired,” rather than the more accurate description of “alcohol related.”  In gathering these statistics, there is no differentiation between impairment from cell phone use, texting, alcohol use, drowsy driving, or just plain old distracted driving.  They all impair so that is the catch all category.

So, what happens to the DUI arrested driver under .08 who is really not DUI?  They are not simply released by the officer’s with an apology for the inconvenience, stress, and embarrassment  of the wrongful DUI arrest, rather they appear in front of a Judge,are formally charged with the crime of DUI, and now are faced with defending a DUI charge despite being clearly under the legal limit.  Many will be offered a lesser charge, undergo a drug and alcohol evaluation, and pay a fine but that does not change the fact that they will likely plead guilty to a crime, incur the cost of an attorney / lawyer, miss work for court appearances, miss work to do the evaluation, and have to explain this and more to friends, family, and children.

In a society where freedom is cherished, and the system of laws is founded upon the premise of “Innocent until proven guilty” it makes a driver wonder if that really is the case?  Taken to the extreme, which these campaigns certainly do, it is now understood just how a person who is a responsible drinker and a responsible driver find themselves facing a DUI charge.  Casting a huge net for Tuna often catches a fair amount of Dolphin.

This week, Sunday August 15, 2010 at 1030 Jonathan Rands speaks more about this issue on local AM 790 KGMI with Tracy Ellis on “The Legal Docket.”  Jonathan and Tracey discuss a new car search case State v. Tibbles, as well as the recent Drive Hammered Campaign.  The show is available after this date as a podcast on KGMI’s website.

For the driver under .08 a competent, experienced, and tenacious DUI attorney is the only way to help avoid a conviction.  A DUI allegation regardless of the breath test result is a very serious criminal charge.  It is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory.  If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com |Email:jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.

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Posted in Bellingham DUI, DUI Prosecution, Island County DUI, Jonathan Rands, Skagit County DUI, Under .08, Under leagl limit breath test, Washington DUI, Washington DUI Arrest, whatcom DUI | Comments Off

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