New Year Brings Changes To DUI Laws.
The title is a little misleading, as the law on DUI in terms of the legal limit has not changed, but rather the laws related to a DUI arrest or conviction have changed. Some may say for the better, while others will strongly disagree. Regardless of the camp you may be in on this, what matters is that those who could not drive previously, now can, but with significant supervision and consequences. The changes relate to who is eligible for a Ignition Interlock Device (IID) as well as the fairly new Ignition Interlock License (IIL).
For the most part the changes create an “Extension of Eligibility” so that those previously unable to legally drive, regardless of whether they have an IID, now are able. Among the most important extensions is the ability of a those arrested or convicted of a drug related DUI and Physical Control convictions to obtain an IIs. Previously a alcohol based DUI was permitted an IIL while a drug based DUI was not. Both alcohol and drug based DUI conviction are NOW able to obtain an IIL.
Further extensions are to those who have had their licenses suspended or revoked due to a DUI related Vehicular Assault and Vehicular Homicide Arrest and Conviction. Where they were previously unable to obtain an ILL, they can now do so.
There is now and IID exception, meaning no IID is necessary on specific vehicles. So a person who ordinarily would be required to have a IID on their “personal vehicle” does not need one on vehicle “owned, leased, or rented by a person’s employer and on those vehicles whose care and/or maintenance is the temporary responsibility of the employer, and driven at the direction of a person’s employer as requirement of employment during working hours.”
This new exception allows people like mechanics to test drive vehicles they work on, or persons who job requires a rental car when they fly somewhere.
With respect to the IID and Convictions & Sentencing, the IID and requirement to obtain an IIL is now at the discretion of the Court and Judge for ALL drug and alcohol related convictions. This means that a DUI reduced to a lesser charge that is still alcohol related permits a Judge to order an IID or IIL even though there law does not specifically mandate it.
Alternatively, a Court may waive IIL application requirement if: (1) driver lives out of state with no reasonably available devices; (2) person does not operate a vehicle; or (3) not eligible for IIL. However, in such scenario’s the Court shall order other alcohol monitoring if no ILL and abstinence is ordered.
The meaning of priors within a seven and or ten year period is also now entrenched in statute, rather than the case law, although the statute is exactly the definition stated by the Supreme Court. “Within seven years” means that the arrest for a prior offense occurred within seven years before or after the arrest for the current offense; and “Within ten years” means that the arrest for a prior offense occurred within ten years before or after the arrest for the current offense.
Similarly a legislative fix from the same court case clarifies a “prior offense” in the form of a Deferred Prosecution when a second offense has been found to have been committed, yet the Deferred not yet revoked. This prevents “second offenses” as was the case previously. So as of now the legislature has again entrenched the Supreme Court ruling; the law is now that “ a deferred prosecution revoked based on a subsequent conviction for an offense, the subsequent conviction shall not be treated as a prior offense of the revoked deferred prosecution for purposes of sentencing.”
Also related to a Deferred Prosecution, it was previously the case where the person was forced to obtain an IIL and that required SR22 insurance, despite there being no license suspension. This years amendment, undoes that requirement and a IIL is no longer required for a deferred prosecution, HOWEVER an IID is STILL mandatory for at least 1 year as always.
Another legislative New Year’s resolution was to increase the penalty for an IID violation while participating in a Deferred prosecution to that of a gross misdemeanor. Previously if a person violated the IID requirement they were only at risk to have a Judge revoke the Deferred, but now face an additional sentence up to 1 year in jail and a $5,000.00 fine rather than a 90 day jail term and a $1,000.00 fine. Furthermore, the Department Of Licensing now has the authority to suspend a person license who is on a DP if they are non-compliance with IID. This does not require any order.
In addition to adding some requirments, what the legislature giveth, it taketh away. A person may remove an IID (post conviction of course) if they can 4 consecutive months without: (1) an attempt to start with a BAC of 0.04 or more; (2) failure to take or pass any retest; or (3) failure to appear at IID vendor.
Another change stems from a case closer to home. In April 2009, a jury returned a verdict in favor of Hailey French who was injured in a head-on collision with a drunk driver who had been released from a prior drunk driving arrest by a state trooper one hour and 39 minutes previously. The Whatcom County District Court Probation Department was a party in the suit due to the fact that the drunk driver had been under a court order to drive only a car equipped with an alcohol interlock device, but the probation department had failed to follow-up on the judge’s court-ordered requirement. As a result there are NOW Liability Limitations. The probation department as an agency of Government now has liability limited if probation verifies installation of IID via written documentation from IID vendor.
Additionally, violations of IIL or IIL requirements are now a gross misdemeanor, when they were previously NOT crimes.
While this is a fairly specific recitation of the changes, a person should always look up and read law with their own two eyes, or make sure that they obtain clear and concise information from an attorney well versed in the DUI laws of THIS state. As it can be seen from the above, numerous laws change and change frequently. Defense of a citizen charge with DUI is not to be taken lightly nor is it for the inexperienced, nor should a lawyer who has no DUI experience handle such a defense. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and 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 | http://www.jrandslaw.com Email:jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense and provides legal services for cases in Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket.
Was Lindsay Lohan Lucky? Washington DUI Probation Violations Much More Harsh.
By the time you read this you have heard the news and perhaps the debate on national legal talk shows: Was Lindsey Lohan treated fairly? Too little, too late? The debate goes on for as long as you care to listen or talk about it. For those who feel that she was treated too harsh consider the MANDATORY consequences of Washington DUI Probation Violations.
Strict and specific terms for Washington DUI convictions require the court to order not only a specific jail sentence, but also a very specific and “special” set of conditions for the duration of probation which is at least 2 years but frequently 5 years. If a person violates those conditions during the duration of probation, they must serve more mandatory jail time. These additional conditions of probation are: 1) Not drive a motor vehicle without a valid license and proof of financial responsibility; 2) Not drive a motor vehicle while having an alcohol concentration of 0.08 or more within two hours after driving; and 3) Not refuse a test of breath or blood upon lawful request by a law enforcement officer.
For each and every instance of a violation of any violation of these conditions the court shall order the person to be confined in jail for 30 days. This means that if charged (regardless of whether you are actually convicted) of a new DUI while on probation for a DUI and at the time of that arrest did not have a valid license, provided a portable breath test in the field at the time of arrest over a .08, but refused at the station, the person is required to serve 90 days in jail on top of whatever the original was and regardless of the sentence for the new DUI charge.
Probation hearings do not require the same level of proof as required to prove a crime. A sworn report by a police officer in the hands of the Judge is sufficient to prove you violated probation. The Judge has to impose the aforementioned 90 days at a minimum, if these special conditions are violated, but, in a case like Lohan’s where she violated the court’s other orders and conditions of sentence, the Judge also has discretion to impose the balance of the original sentence! Judges do not like to have their orders disregarded and will impose much longer jail sentences than 90 days.
As an example of this Judicial discretion: For a first DUI conviction in Washington a Judge will likely impose 365 days of jail and suspend 364 to ensure compliance. This means the person will serve 1 day of jail but for the term of probation have a possible 364 days that could be imposed for probation violations that occur over a 5 year period.
There is no real need to justify the Judge’s decision when it comes to imposes suspended jail time. In addition to the Judges ability to impose almost a full year of jail, each and every incident involving a violation of these “additional” terms of probation, the Department Of Licensing will be notified by the court and be ordered to suspended or revoke the drivers license for 30 days for each violation (total of 90 days in the scenario above) and if it is already suspended or revoked at the time the of the probation violation, it shall be extended by 30 days per violation.
Lindsay Lohan was given 90 days for her probation violations, but a Washington DUI case such as her’s, with the allegations she faced while on probation, 90 days would NOT have been the outcome, it would have been much more both from the Judge and the Department of Licensing.
DUI 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 jrands@jonathanrands.com | 360.306.8136. Focused On Your Bellingham DUI Defense.
Skagit County Judges Require Scientific Standards In DUI Prosecutions.
Recently, Skagit County District Court Judges David Svaren and Warren Gilbert heard testimony from expert witnesses in support and in opposition to a defense challenge to the admissibility of breath tests due to the lack of adherence to scientific principles. Their ruling requires State Prosecutors to provide evidence of uncertainty in DUI prosecutions where a breath test was given. (Skagit Co Uncertainty Ruling)
The defense expert witness, Ashley Emerey, a UW professor, testified that the generally accepted principles in the scientific community require a statement of “uncertainty” if the measurement is to be considered valid and reliable. This additional information is required for any measurement. Breath testing is a measurement and therefore requires a statement of uncertainty.
The current manager of the State Toxicology Lab, Jason Sklerov, did not deny the generally accepted requirement of uncertainty, nor did he disagree with almost all of Dr. Emery’s testimony. However, what he did disagree with was the actual need to perform this calculation, despite the fact that the Lab currently does the calculation, it is only upon specific request. Although the Judges denied the motion to suppress, the ruling requires the State to provide very specific information: “To be admissible, breath test results for alcohol must be stated in terms that include an estimate of uncertainty associated with the measurement.”
As a result, the State will now need to provide testimony that was previously glossed over and never provided to a jury. Absent this information, a breath test in a DUI trial will not be provided to a jury because the evidence is deemed unreliable since it fails to follow scientific standards.
This challenge is being heard around the state and was recently argued here in Whatcom County earlier in June. Due to the length of time it takes to provide testimony from Dr. Emery and Mr. Sklerov and court congestion, there was not enough time to finish so the hearing will reconvene on the 24th. It is hoped that the afternoon will provide the necessary time to compete the hearing. We anticipate a ruling within the first few weeks of July. Once the District Court ruling is issued there is the possibility that other courts in the County that handle DUI cases; Bellingham Municipal, Ferndale Municipal, Lynden Municipal, Blaine Municipal, and all other county municipal courts, will follow the ruling issued. This will likely be done on a court by court basis, if each court choses to adopt the decision.
Some may feel that this is a defense tactic to find a loophole that allows those charged with DUI in Whatcom County to have their case dismissed: this is not the case. Rather, what defense attorneys are seeking is that the State simply follow the rules of evidence and in so doing only present to a jury evidence that is in keeping with the science it is said to rely upon. If the State only provides accurate and reliable information to a jury then we can be sure that there are no wrongful convictions especially when the states evidence is close to the legal limit of .08. A statement of uncertianty in this type of breath testing evidence that the accused driver’s breath sample is just as likely UNDER the legal limit as it over the legal limit. It is these types of misunderstood, yet important challenges that experienced and tenacious DUI lawyers are privy to.
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 | jrands@jonathanrands.com | 360.306.8136.
