DUI Conviction Mandatory Breath Test Fee Increased To 200.00. Ever Wonder Where The Money Goes?
Until recently, the fine for a person who is convicted of a DUI, or crime reduced from DUI were all required to pay 125.00; traditionally this is called the “Breath Test” Fee. This fee is assessed regardless of whether a person actually provided a sample, or refused the test as they are statutorily permitted to do. Upon conviction, when fees and fines for the crime, regardless of whether it was reduced, were all totaled it came to $866.00 for a first offense under .15 breath sample, and $1121.00 for a first offense over .15 breath sample or a test refusal. Probation fees are not set by statute and are charged monthly depending on the level of supervision and agency policy.
As of July 22, 2011, the fines and fee for the conviction have increased as a result of the breath test fee increasing. The 125.00 breath test fee has been increased by $75.00 per test. As a result of this increase the former totals of $866.00 and $1121.00 are now $941.00 and $1196.00. Traditionally, this fee is not able to be waived, but as an added change, under special circumstances and upon a verified petition by the person assessed the fee, the court may suspend payment of all or part of the fee if it finds that the person does not have the ability to pay.
So the fee is increased, but have you ever wondered what happens to these DUI fines and fees? According to the statute, this breath test fee is for the purpose of funding the Washington State Toxicology Laboratory and the Washington State Patrol grants and activities to increase the conviction rate and decrease the incidence of persons driving under the influence of alcohol or drugs. The logic of this will be discussed shortly, but here is the breakdown of this fee use.
According to the statute, the fee assessed shall be collected by the clerk of the court and, subject to another statute (RCW 46. 61. 5054 [4]), $175.00 of the breath test fee MUST be distributed as follows:
Forty percent ($70.00) shall be subject to distribution under the authority of following statutes: RCW 3.46.120 (Repealed), RCW 3.50.100 (where to deposit and interest earned), RCW 35.20.220 (Powers and Duties of Chief Court Clerk), RCW 3.62.020 (Forfeiture Money From District Courts), RCW 3.62.040 (Forfeiture Money From City Cases), or RCW 10.82.070 (Superior Court Collections).
The remainder of the fee ($105.00) shall be forwarded to the state treasurer who shall, deposit: Fifteen percent ($15.75) in the death investigations’ account to be used solely for funding the state toxicology laboratory blood or breath testing programs; and eighty-five percent ($89.25) in the state patrol highway account to be used solely for funding activities to increase the conviction rate and decrease the incidence of persons driving under the influence of alcohol or drugs.
The remaining 25.00 from the original 200.00 ($175.00 MUST be used as described above), or the extra 25.00 that takes the prior 175.00 fee to 200.00 must be distributed to the highway safety account to be used solely for funding Washington traffic safety commission grants to reduce statewide collisions caused by persons driving under the influence of alcohol or drugs. Grants awarded under this subsection may be for projects that encourage collaboration with other community, governmental, and private organizations, and that utilize innovative approaches based on best practices or proven strategies supported by research or rigorous evaluation.
After reading the statue closely, it now begs the question of: what are these innovative approaches to reduce “crashes?” Keep in mind the statute by their very plain language do not seek to reduce the incidences of drunk driving, rather they seek to reduce crashes “caused” by drunk driving. The problem as I see it, however, is that the vast majority of car crashes ARE NOT CAUSED by drunk driving. While many believe that the majority of crashes are caused by alcohol or drug impaired driving this is not the case. Like everything else, “sensationalizing” or constant headlines reporting leads many to the conclusion that all crashes are alcohol related. Consider the 2008 statistics compiled by National Highway Traffic Safety Administration (NHTSA):
In 2008, the NHTSA discovered that 60 percent of fatal crashes were single-vehicle crashes, and from that statistic, 71 percent of those crashes were run-off-road crashes. A run-off-road crash is where the vehicle runs off the road and crashes into an object. What I found that was interesting was that 95 percent of these accidents were due to driver errors. Overcompensating the steering wheel when turning, poor directional control, and driving too fast for the conditions; these are the factors that make up that 95 percent. What this means in simple terms is Americans are horrible drivers. The main reason why people get into car accidents is because they can’t drive.
From this information, reading statutes carefully and with a critical and thoughtful analyses of the language of a statute is important to separate the reality from the rhetoric. This is not intended to mean that drunk driving should be supported, rather it is intended to cause the reader, the citizen, the legislator to read statutes and proposed statues critically, and to think critically.
Why should time and energy be invested into reducing the cause of crashes that is way down the list of reasons for the crashes? The answer is likely because it is easy increase fines and fees for issues associated with DUI than it is to say what the change is really about. It is easy to raise fees and fines for a crime such as DUI because it is popular to hate it. In the words of a good friend of mine, Ted Vosk:
Defending an individual charged with driving under the influence of alcohol can be a challenging affair. Only those accused of sex offenses seem to be viewed with more disgust. The hysteria created by special interest groups has led to the adoption of ill conceived and unfair laws. Moreover, the spasmodic response to the proclaimed “carnage on the highways” has created a DUI exception to the Constitution so that citizen’s are now expected to check their rights at the ignition.
This does not mean we as Defense attorneys are “pro” DUI, rather we are “pro” common sense, fairness, and well thought out and well drafted laws. When we return for a look at the language of this new statute: “utilize innovative approaches based on best practices or proven strategies supported by research or rigorous evaluation” it makes no sense. How do we utilize innovative, meaning new, approaches that are proven? By definition, if they are new they are in fact, unproven. If they are new, how can they be considered a proven strategy? What the statute seeks to implement is methods that are proven to reduce DUI. Really, the only way to reduce it is zero tolerance. The current state of the law is this: it is not illegal to drink and then drive; so people do it.
The problem with permitting a judgment impairing activity is the line between impaired and not impaired is easily crossed. If the legislature wants a new yet proven method of reducing DUI crashes then stop the rhetoric and simply make laws that prohibit any alcohol mixed with driving a crime. Interestingly enough this is one way an innovative yet proven method work. Until such a time that the nation goes to zero tolerance the rhetoric of these statutes and agencies like MADD that seek to reduce DUI, simply seek to increase fundraising for their own causes.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to a defense, is an important right that effects each and every DUI arrest and charge. If you, or someone you know is facing a DUI, or any alcohol related arrest and charge, 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.
United States Supreme Court Case Requires The Right To Confront Witnesses Even In DUI Cases.
Last month the United States Supreme Court (USSC) took another anticipated step in preserving one of the most fundamental and important rights that an accused person is afforded under the Constitution of The United States. The recent case issued by the USSC of Bullcoming v. New Mexico followed in the path of Crawford v. Washington, 541 U. S. 36, 59, and Melendez-Diaz v. Massachusetts, 557 U. S. ___, in clearly defining the right of confrontation, and in so doing, also defining the obligation of the prosecuting authority in every criminal case. Unlike many cases that are decided by the USSC, Bullcoming was a case of DUI.
The facts of the case are somewhat unimportant, as the “meat” of the case was the fact that the lab analyst who conducted the blood alcohol test that Mr. Bullcoming submitted to was unavailable for trial. In place of the original analysts, a different analyst testified from the report that the first analyst created as the blood was tested. While the substitute analyst had knowledge about what should have been done, or what was usually done, he had no knowledge of what was actually done.
In blood test cases, there are scientific and state policy and protocols that must be followed in order for the results to be admitted and shown to a jury. The inability to determine what was actually done precluded Mr. Bullcoming from confronting the witness. As described by the USSC:
The analysts who write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” [The substitute analyst was not an] adequate substitute witness simply because he qualified as an expert with respect to the testing machine and the laboratory procedures. Surrogate testimony of the kind [the substitute analyst] was equipped to give could not convey what the actual analyst knew or observed about the events he certified, nor expose any lapses or lies on his part. With the actual analyst on the witness stand, Mr. Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for his removal from work [and thus his unavailability for trial]. The State did not assert that the substitute analyst had any independent opinion concerning Mr. Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another persons testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.
The case is now the highest authority in the land on the issue of confrontation and serves as the new “floor” when it comes to the right to Confront witnesses and what this actually and practically means. Typically, in Washington State a Federal Constitutional right is given even a higher level of protection under the more protective State Constitution. While the Washington State Supreme Court has built upon the prior USSC cases involving and preceding this new case of Confrontation, Bullcoming has now, and once again raised the protective bar accordingly.
Bullcoming permits no substitutes when it comes to confronting ALL witnesses against an accused and this is important in every criminal case, but especially so for DUI cases involving blood tests as well as breath test cases. The importance of the case in a blood case is fairly straight forward: the testing person must be present for the trial unless they were previously confronted at a pre-trial hearing.
With respect to the breath testing the right to confront under Bullcoming is equally operational but it will likely require an Appellant Court to settle the matter despite the fact that the implications are clear to the defense bar. In a DUI prosecution with a breath test, there must be a showing that a breath test machine’s external simulator solution is prepared by a toxicologist. In order to make sure that the solution is certified under lab protocols several other toxicologist must also test the solution. The State and City DUI prosecutors typically call just one of those who had a hand in only the testing phase and not the actual person who created it. They argue against Bullcoming by stating that the multiple testing of the solution and the presence at trial of one of these testers who the defense can, in fact, confront is good enough and distinguishable from Bullcoming.
This is because it is a rare case that the person who ACTUALLY created the solution is present at trial. From the defendant’s Confrontation standpoint, Bullcoming holds that the creator of the solution is required to be there in order to test that person’s veracity, demeanor, and to some extent competence in their creation of the solution. While the solution is easy to prepare, it can be prepared in a manner that is NOT consistent with the required lab protocols and the subsequent testers have no personal knowledge as to how it was actually created. In addition to this, the secondary tests of other analysts would not indicate whether there was any deviation in the preparation. As a result the actual person who prepared the solution needs to be confronted by the accused.
While Bullcoming is apparent and clear to a defense attorney like myself, the lower Court’s typically do not like to stray beyond the rule of law that is clearly on point and therefore convincing the lower bench of this requirement when it happens will be challenging. In fact,that is my personal experience recently. As a result, the objection to the lack of Confrontation and the argument will need to made over and over until someone appeals a final verdict against a defendant and then the Appellant Courts will weight in on the matter.
This was the case in Redmond v. Moore. While that was not a case in response to a Court of higher authority, the attorney’s made the argument over and over and over and were denied repeatedly, until the denial of the motion and argument was appealed Only on appeal was the argument agreed to and then endorsed by the higher Apppellant court. In response to that court ruling the lower courts now had clear authority to enforce the issue and argument and the Department of Licensing was ordered to change their ways had to revamp the method in which it proposed to suspend a person’s driving privilege.
This comment and analogy is not an indictment of the lower courts. In fact their reluctance to step out on a limb and make new law is understood as nobody likes to be actually stray from the established status quo and risk reversal. However, that is the job, as it is the job of defense attorneys to make the argument, to expose the logical legal flaws, to point out the fact that another similar case came to a opposite conclusion, and to present an age old scenario in a different light. Progress in the law is made the same way progress is made in society and technology: a new idea on an old issue.
A defense attorney’s role is typically criticized for creating “loopholes,” or generating the flaws in the law when the reality is we are charged with the duty of protecting clients rights, and if the right to Confront is watered down it is up to us to point it out and argue against it tirelessly until someone recognizes that doing things the same old way, because it has always been this way, is no excuse. As stated by the Court in Bullcoming when quoting another case: “it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” The right itself needs to be respected, otherwise what worth is it?
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to Confront all witnesses is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration. 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 You Be Prosecuted For Under .08? – YES
Washington State has done a good job of publicizing that if you drive at .08 or higher, you will be prosecuted. The State Patrol’s “Drive Hammered, Get Nailed,” “Over the limit, Under Arrest,” “Buzzed Driving Is Drunk Driving,” and “Nightime seatbelt,” campaigns, are all very effective in putting the dangers and consequences of drunk driving in the minds of Washington drivers. So, knowing this, you have one glass of wine with dinner or maybe a cocktail after work or a pint of Guinness for St. Pat’s. You know you aren’t drunk. You know you are not even close to the legal limit. You are a responsible person, not a law-breaking criminal. You don’t even panic when the red and blues start flashing in your rearview mirror. Maybe you should panic. What most motorists do not know is that Washington has in fact abandoned the concept of a “legal limit” in favor of prosecuting any drinking driver, even if the driver’s breath test is well under the legal limit. The .08 limit is a half truth. I know. I have represented numerous citizens in Whatcom, Skagit, Island counties, and elsewhere who were all well under the “legal limit” of .08 but they were still prosecuted for DUI. In fact, two clients’ breath samples were .0, and another was over the limit but NOT even driving and they were all still charged and prosecuted. While the charges were all dismissed, the process was unnecessary and stressful for them.
How can this be? It happens because there are two distinct sections in our DUI law. One part of the statute sets forth the Per Se .08 “legal limit,” but the other part says you can be charged with DUI if you are “under the influence of or affected by intoxicating liquor.” Surprisingly, a driver who knows he or she is under the .08 legal limit will still be charged with a DUI if the police officer who stopped him or her forms an opinion that the person is “affected by” alcohol. The officer’s opinion is based upon his or her observations of the driver and the driver’s performance on field sobriety tests. Most of the time these field sobriety tests are not videotaped and thus, there is no independent evidence for you to rebut the officer’s opinion that you failed the tests.
If you are under the legal limit and yet charged with DUI you will face an experienced prosecutor and a harrowing journey through the legal system.
The road signs you see announcing the .08 legal limit are essentially a half-truth. The whole truth is that being under a .08 is no “safe harbor” from being prosecuted for DUI, and refusing the breath test will only make things worse. Even if you are found innocent of DUI, refusing to take the test will result in a year’s revocation of your license by the Department of Licensing. If you are convicted of DUI after refusing the breath test, you’ll lose your license for two years even if you previously had a clean criminal record. Who says our DUI laws are not tough? Taken together with the real but unannounced policy of “no tolerance” towards any drinking driver, citizens are on notice: don’t rely on being under an .08 to keep you out of jail.
