Washington D.U.I Arrest Now Gets Mandatory Vehicle “Lock-Up!”
Unlike your driver’s license, which may not be suspended, revoked, or otherwise “lost” when you are arrested for a DUI, your car is not so lucky as of July 22, 2011.
An Arrest for DUI (RCW 46.61.506) or Physical Control (RCW 46.61.504) now require a mandatory 12 hour impound at the owner’s expense. The discretion formerly held by the arresting officer has been removed with only 2 exceptions: the vehicle is a commercial vehicle or is a farm transport vehicle and the registered owner was not a occupant of the vehicle when the stop occurred.
Many commercial vehicles are not owned by the driver’s who are hired to drive them so the law seems to respect their ownership interest in the vehicle as well as the trailer or load it may be carrying. The statute commands the officer that he or she SHALL provide and invest a reasonable amount of time and energy to arrange for the owner of the vehicle to take possession of the vehicle. The problem, however, is that the statute uses the specific language of owner and there is no authority to permit the owner to send or arrange a suitable driver. Consider the owner who cannot get from his residence in New Jersey to retrieve a fleet vehicle of his. He is not permitted to have anyone else take possession of the vehicle. The same may be said for farm equipment, except they are also in addition likely hard to find proper transport for so an exception can be made.
The mandatory impound is for 12 hours from the time the vehicle arrives at the tow storage yard, unless there are 2 or more registered owners of the vehicle OR there is a legal owner of the vehicle that was not the arrested driver. Under these circumstances, one of these persons may retrieve the vehicle after it arrives at the impound yard. This means a tow operator must take possession of the vehicle. As a result, contacting the registered owner prior to vehicle being seized by the arresting officer and transported by a tow company while the vehicle is still on the roadside, is no longer possible. As a result, charges for the hook-up, tow, and time in the tow yard in the form of storage will be accrued.
Given this financial gain by every tow company state-wide, it is no surprise that they were a very vocal special interest group and fought hard for this law. While many supporters of the law cite to the case of “Hailey” and the community safety concern, it is important to remember and highlight the fact that the arresting officer previously ALWAYS had the ability to impound the vehicle previously driven by a DUI arrestee. The officer in “Hailey’s” case choose not to. He choose not to even though that arrestee (who later returned to her car after her DUI processing) had a pending DUI,had a suspended license, and did not have the ignition interlock that was required due to her restricted driver’s license. This now mandatory law was always a possibility but it was the negligence of one arresting officer (as determined by a jury) and the multimillion dollar verdict that was the spark of this legislation.
While the community safety justification is one that cannot be disagreed with, there is no such practical problem in Whatcom County for DUI arrests. This is because the Whatcom county jail has a policy of mandatory booking of DUI arrestees. The arrested driver will not be released until a sober driver can be arranged to pick them up who must meet face to face with that driver and the arrested person proves a breath sample on a portable device that is .04 or lower. As a result of this, justification of this new impound law is less persuasive and the apparent influence of the tow truck lobby is in fact a reality.
While many other jails have a similar policy, many do not. In a Mount Vernon DUI, or Anacortes DUI, or any Skagit County DUI arrest, the jail will accept a DUI arrested driver, but only when space allows as the dangers of overcrowding have to be considered. In those counties, the officer can call the jail and see if the person will be accepted. If not, then the impound can move forward. Nevertheless, while the spirit of the law is a good intention, the practical effect of the law can be unforeseen and undesired such that the law requires an amendment.
It should be kept in mind that vehicle impound is not a seizure and forfeiture of the vehicle forever, unless the vehicle becomes abandoned, but rather, the law only permits a hold for a 12 hour period unless one of the previously described circumstances exists.
The law also removes liability for any damage or loss the vehicle sustains post-arrest of the driver, even if the officer departs the scene before a tow truck driver arrives to take possession of the vehicle. The statute permits the officer to simply lock the vehicle with the notice of tow and impound form inside the vehicle and leave the scene if, or when: the officer has waited 30 minutes since requesting the tow truck/impound; the officer is presented with “exigent” circumstances that are defined in the statute as “being called to another incident or due to limited available resources being required to return to patrol.”
To the average citizen who is unfamiliar with the nightly occupation of a officer conducting “emphasis” patrols the statute is essentially the officers to not remain with the vehicle because they are always short handed such that they are operating under “limited resources.” Sure it is just a car, but we tend to keep many valuable and important items in our vehicles and this opens them up to loss or destruction and the driver has no recourse. In a county where the driver will not be returning to the vehicle anyways due to mandatory booking, the complete waiver of liability may serve as a extra punishment for the DUI arrestee who happens to use their vehicle as a mobile office.
Finally, this statute may also punish an owner, who never really uses the vehicle as it is typically in possession of an employee for work. However, only a registered owner(s)s or legal owner(s)s may retrieve the vehicle from the impound lot, either early or post-12 hour hold. As a result, the only person who can practically get the vehicle, after the 12 hour hold or longer, is the former driver/arrestee, but has no ability to do so. This could be another extra expense in the form of longer storage time, therefore longer fees and travel expenses for an absentee properly owner.
This is not intended to suggest that this law should not have been passed, but rather, it is an example of good intentions affecting various unintended citizens and is the result of rushing legislation to appease the lobbying party at the expense of logical and measured thoughtfulness before stamping an effective date on a bill.
Jonathan Rands is an experienced, responsive, and dedicated DUI trial lawyer with proven DUI defense success. The impound of a driver’s car will also trigger a hearing to contest the impound legality and fees but this is a time sensitive matter and you must act within 10 days. 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. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
Can I Get A DUI Riding An Off-Road Vehicle (ORV) On Private Property?
A person may be charged for a variety of things, but the better question is whether a person can be “lawfully” charged and can the charge be lawfully proven? Like many questions of law, the answer depends on the specific facts of each case. For our purposes, assume the facts are as stated in the title: DUI on private property, while riding / operating a ORV.
The charged with DUI is found RCW 46.61.502. In addition, there are two concurrent statues in the State of Washington dealing with individuals driving / operating an off-road vehicle while under the influence of intoxicating liquor.
As a result, where a special statute punishes conduct that is punished under a general statute the special statute applies and the accused can be legally charged only under that specific statute. In the case of State v. Williams, 62 Wash.App. 748, 815 P.2d 825 (1991). the Washington Supreme Court recognized this rule has a longstanding tradition in Washington, as the Court wrote that:
[Previously], we stated: “The rule is that where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general. Furthermore, the threshold question is whether the two statutes proscribe the same conduct.
In our case, the general statute is the DUI charge under RCW 46.61.502 (a gross misdemeanor) and the specific statute is the Operation of a Off-Road Vehicle While Under The Influence RCW 46.09.120(2) (a misdemeanor). To further determine this, RCW 46.04.370 defines an “Operator or Driver as “every person who drives or is in actual physical control of a vehicle. And more specifically, RCW 46.09.020(14) reads “Operator” means each person who operates, or is in physical control of, any non-highway vehicle.
Both RCW 46.61.502 AND 46.09.120 offenses have identical language stating that it is unlawful for any person to drive while under the influence of intoxicating liquor. See RCW 46.61.502(b) and RCW 46.09.120(2).
Given that RCW 46.61.502 references the general term of “motor vehicle” and a off-road vehicle [ORV] is included in the general definition of “vehicle” and “motor vehicle” under RCW 46.04.670, RCW 46.04.320 and RCW 46.09.020 respectively there is no question that the general statute covers the ORV.
Furthermore, in Washington caselaw, the state Toxicologist concluded that there was an abundance of scientific support to indicate that with an alcohol level of 0.10%, all persons are significantly affected and under the influence of alcohol, and any person who drives a vehicle with a blood alcohol content that is .10 or greater within two hours after driving poses an unreasonable risk to the safety of the public. In July 1998, the National Highway Traffic Safety Commission published “Effects ofLow Doses of Alcohol and Driving Related Skills: A Review of the Evidence.” This study concluded that evidence of impairment at alcohol concentrations of .05 and higher with respect to reaction time, tracking, concentrated attention, divided attention, information processing,, vision, perception, psychomotor performance and on various driver performance measures. This study concluded that no “safe” limit of alcohol level other than zero can be placed in alcohol impairment of driving related skills.
Similarly, in April 2000, the National Traffic Highway Safety Administration published findings that concluded that a majority of studies reported significant alcohol impairment at 0.05. At 0.08 more than 94% of the studies reviewed reported that individuals exhibited impairment of driving skills.
As a result of this research, RCW 46.61.506(1) allows for an alcohol level less than .08 to be considered as competent evidence to consider that a person is under the influence of alcohol. Based upon the above literature, cases and statutes, it is obvious that the prosecution can proceed with a case against a citizen for operation of a ORV, and the charge of DUI is tectonically on point, but the theory of Equal Protection demands that a ORV Alcohol charge should happen under the specific statute of RCW 46.09.120(2) which states: ” It is a misdemeanor for any person to operate any nonhighway vehicle while under the influence of intoxicating liquor or a controlled substance.
This is the specific and special statute for off-road vehicles. While it does also result in violation of the general statute of RCW 46.61.502(1)(b) [the general statute dealing with driving under the influence of a motor vehicle], the law holds that if the more general statute of DUI is charged and pursued, rather than the more specific statute, the person’s equal protection rights are violated.Specifically, the Washington Appellant Court found that “It is a violation of equal protection for a prosecutor to be given discretion to charge a defendant with a felony or misdemeanor based upon identical conduct;” (See State v. Martell, 22 Wash.App. 415, 591 P.2d 789 (1979).
Therefore, the prosecutor has a basis for distinguishing between persons who can be charged under one or the other statute, and is not at liberty to charge under the general statute a person whose conduct brings his offense within the special statute.
Under the law, and strictly speaking, where a person is arrested for a DUI when the facts show operation of private property, the prosecutor has no choice in this matter and MUST file a charge under the more specific statute.
The fact that a person is on private property is also not the issue, because the DUI statute criminalize DUI or ORV under the influence charges “anywhere in the state.” There still remains the question of how the police lawfully entered the private property, but assuming they were lawfully there, and had a lawful basis to contact the vehicle operator, the proper legal charge is the specific ORV under the influence charge.
This is a significant point because there are vast and huge difference between the two charges in terms of sentencing and collateral consequences. A DUI ha s a mandatory jail sentence, fine, license suspension, CDL consequences, Ignition Interlock requirements, probation, and more. The crime of ORV has none of these mandatory components upon a conviction. Therefore, a person unaware of this special requirement may believe they have no options, and without proper legal counsel and strategy face sever consequences of a DUI that are in fact improper and illegal.
As evidenced by this, any alcohol and motor vehicle charges are neither SIMPLE, nor STRAIGHTFORWARD charges. Defense of a citizen charge with DUIor any criminal charge should not to be taken lightly nor should it be handled by an inexperienced, lawyer who has no DUI experience. Rather successful defense of the charge 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. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement. 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. | Serving 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.
You Have The Right To Remain Silent, But First, Speak Up!
This summer (June) the United States Supreme Court (USSC) issued a ruling contrary to the longstanding belief that, silence by an accused who informed and warned of the right to remain silent was an obvious invocation of the right. The case is BERGHUIS v. THOMPKINS. Traditionally, a person’s silence after being informed of their rights, specifically the right to remain silent made it very obvious that they were exercising that right. The new ruling by the USSC has changed that and a person must now speak up to actually invoke the right.
The facts of the case were that the defendant was being interrogated by police for over 3 hours and during the interrogation he remained silent until near the end of the ordeal when he was asked if he prayed to God to forgive him for the shooting that he was being interrogated about. He provided the single word answer of “yes.” This answer is classic example of using the person’s words against them and why defense attorneys always advise to actually use the right.
The rule on the right to remain silent comes from the landmark case of Miranda v. Arizona. In that 1966 case the USSC fashioned a rule requiring a person who was in custody to be warned in the following manner:
You have the right to remain silent; Anything you say can and will be used against you in a court of law; You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions; If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one; You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.
The warnings are very clear and it has always been the case that a person’s silence in the face of interrogation indicated they did not want to answer any questions. In Thomkins case, Officers began an interrogation after the warnings were given. At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Traditionally, when the right was invoked the police were required to end the interrogation, but according to the Supreme Court the failure to actually speak up and say that the right to silence was being invoked, the interview did not have to end. Having found no invocation, the court did not need to analyze whether there was a waiver of the previously non-invoked right, but since the two issues are tied the high court decided to take the opportunity to address the issue and highlighted the rule that that states that:
As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. . . . Thompkins waived his right to remain silent. There is no basis in this case to conclude that he did not understand his rights; and on these facts it follows that he chose not to invoke or rely on those rights when he did speak. First, there is no contention that Thompkins did not understand his rights; and from this it follows that he knew what he gave up when he spoke.
Therefore by virtue of these facts and the single word answer given nearly 3 hours into an custodial police interview the answer given by Thomkins was admissible in a trial. In fact, the Court specifically wrote: “The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time.” Consequently, this case serves as an example of why the right to silence is so very important as well as a case that appears to erode a longstanding common sense approach to this issue.
Fortunately, this is a case that may not affect the citizens of Washington State, because this is a Federal Constitutional right and the State Constitution of Washington provides a greater level of protection to citizens enduring a custodial interrogation. Washington case law is full of this exact situation and the State Supreme Court has consistently found that silence in the face of interrogation is indeed, an invocation of the right and questioning must cease and if is does not, any answer is not admissible UNLESS the officer clarifies the fact that that the person wishes to waive that right. Despite this greater protection the safest course of action is to invoke the right or invoke the right by invoking another important right that automatically invokes the right to silence: The right to a lawyer. The only right a person needs to remember is the right to a lawyer because once that is done the police MUST provide access to a lawyer and CANNOT ask any questions. The Miranda warnings have been altered a little bit since the 1966 decision and also inform a person that anything they say can and WILL be used against them. It never ceases to amaze me the types of things that the government attorneys (prosecutors) seek to use pursuant to a waiver of the right under that warning.
In a DUI prosecution and trial the government attorneys will try and admit the custodial interview done on those arrested who do not invoke their right to silence or an attorney. In a DUI case the answers to the questions may not appear incriminating, and some are not, but what they do eliminate possible defenses regardless of how innocent the questions appear. If you disagree, have a look at the form and ask yourself, why would the WSP create a form with these specific questions? Because “ANYTHING” you say CAN and WILL be used against you.
DUI is not a crime where a person is going to endure hours of interrogation by police as Mr. Thomskins did, but there is in fact a interrogation that they soften by calling it “Interview” but there is no hiding the fact that it takes place in a controlled environment where the person is NOT free to leave, and cannot leave until the officer says so. As a result, this ruling from the USSC on this issue of silence is one that is important and signals perhaps the pendulum insofar as an accused person’s rights swinging out of their favor.
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 an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement. 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. | Serving 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 at http://www.kgmi.com/pages/7015350.php
