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IMPAIRED DRIVING UPDATE Washington Traffic Safety Resource Prosecutors
Issue 12 Nov 2013
Inside WA’s New DUI Law: The Good, the Bad and the Unclear
As of September 28, 2013, Washington has adopted
a new DUI law, and with it, new DUI forms. Officers
have faced the daunting task of retraining
themselves to use the new forms, while prosecutors
across the state differ on interpretation and
implementation of the new facets of the law. These
uncertainties will likely be resolved in the next year
through various litigations and policy choices. Until
then, the best strategy is to work closely and fluidly
with your local prosecuting authority or law
enforcement agency. The process has been
understandably frustrating for everyone. Changes
are inevitable, and we will strive to keep
prosecutors, law enforcement, judges and
stakeholders apprised of new developments as they
are encountered across the state.
NOTE: The DOL notice portion of the form has been
revised by DOL and will be distributed to every BAC
location as a separate, single tear off sheet in the
coming weeks.
A basic summary of the new law and general DUI processing
information is attached as pages 2/3 of this newsletter.
THIS ISSUE
New DUI Law Pg. 1 DUI Law Overview Pg. 2/3
Frequently Asked Questions – Post-McNeely DUI Law Pg. 4/5
TSRP Shout Out Pg. 6 New HGN ruling Pg. 6
Trial Notebook Essentials Pg. 6 Training Announcements Pg. 7
Or at least your sanity!
As the preceding chart indicates, there are still a number of questions to be resolved with
regard to the new DUI packet and to the new DUI law. Local prosecutors are no doubt
communicating with local law enforcement (hint, hint) about preferred strategies, and
addressing issues that are popping up with regard to mandatory booking, voluntary consent,
and what warnings are to be read in which circumstance. Although there are some differences
of opinion, below are suggestions on some of the most commonly asked issues:
What is the preferred method of obtaining a blood sample?
In any case, misdemeanor or felony, in which an officer wants to obtain a blood sample from a driver,
the most secure way to do that is to obtain a search warrant from a judge. That is not to say that
justifying a warrantless blood draw due to carefully articulated exigent circumstances, or obtaining a
suspect’s voluntary consent, are not legally valid methods. It merely underscores the security of a blood
sample obtained following a judge’s verification that probable cause for the crime of arrest existed and
justifies the drawing of the blood.
The biggest issue surrounding voluntary consent (aside from whether your prosecutor wants officers to
use the voluntary consent form on misdemeanor cases) is the suspect’s ability to revoke that consent at
any point in the process. Imagine that the officer makes it all the way to the hospital, and has a
phlebotomist primed for the blood draw. If the suspect chooses that moment to revoke his consent, the
officer will have to return to the police department or other computer to now draft a search warrant and
then attempt to reach a judge. Those likely delays make the time put in up front in applying for the
warrant seem more reasonable.
Our jurisdiction is having difficulty reaching a judge when we need to obtain a
search warrant – what do we do?
The first step is to figure out how to obtain your blood sample for the case at hand. If you are dealing
with a felony case (vehicular homicide, vehicular assault, felony DUI) or a misdemeanor case with an
unconscious suspect or a case where a crash has seriously injured another person, and you have
attempted the call multiple times, and/or called multiple judges, with no success, you may have
sufficiently exigent circumstances to justify a warrantless blood draw. Thoroughly document the times
and details of any attempted calls in your narrative. Note: there is no misdemeanor exception for
exigent circumstances.
The next step will occur once normal business hours have resumed. Report any difficulty reaching a
judge for a search warrant to your command staff, and ensure that the local prosecutor is informed.
Many times, working together with the prosecutor and judge(s), these issues can be resolved in a way
that streamlines the process for all involved. Local jurisdictions are beginning to formalize electronic
search warrant procedures, including revising local court rules to expressly permit electronic signatures to
be used on search warrants, and/or combining telephone calls (for contacting the judge, and recording
oaths and warrant approval) with email transmission of paperwork.
A statewide electronic warrant system proposal is being developed through the generous commitment
of funds and resources by the WA Traffic Safety Commission – stay tuned!
FREQUENTLY ASKED QUESTIONS
There is a typo in my search warrant template….is it invalid?
No. Although we strive for accuracy in search warrant documents (and everything we do!), the overall
content of a search warrant is far more important than any individual line or citation. Furthermore, a
typical DUI blood search warrant affidavit typically does not require writing 4 pages of narrative. Its
primary purpose is to establish probable cause for the crime of arrest, and express to the judge why the
officer is justified in securing further evidence of that crime. A thorough summary of the facts indicating
impairment and justification for the crime of arrest is all that is legally necessary to form the “meat” of a
search warrant affidavit. Provide the reviewing judge with as much relevant detail of the stop, contact
and circumstances leading up to the warrant.
Also, note: in some situations, the blood warrant template and/or DUI packet forms will not line up exactly
with a checkbox for your particular circumstance. If needed, write in any clarifying information.
What warnings are read in which circumstance?
Breath-only misdemeanor DUI:
Implied Consent warnings (Still the same, but no longer mention blood)
Blood obtained via search warrant: General advice is to read Special Evidence warnings in packet
for felony cases or misdemeanor with unconscious suspect or crash with serious injury to another.
May read for blood obtained via search warrant in a misdemeanor case, if directed by your local
prosecutor. (Note: if read in a misdemeanor case, the officer can simply write in “DUI” or “physical
control” beneath the current checkboxes).
o WHY? Short Answer: These warnings advise the subject of his right to an independent test.
Blood obtained via voluntary consent: Read the Voluntary Consent form in the DUI packet. Do
NOT read the special evidence warnings.
Why do we no longer punch the driver’s license of an individual arrested for DUI?
The legislature determined the practice of punching licenses was causing unforeseen hardship to holders
of punched licenses, who were allegedly being denied consideration of their punched licenses as valid
identification.
How do we handle mandatory booking for repeat offenders?
The legislature added DUI/Physical Control offenders with prior offenses to the list of crimes requiring
mandatory booking. This is the same section currently used to support mandatory booking on domestic
violence arrests. Prior convictions are eligible if committed within 10 years, for crimes listed in RCW
46.61.5055 (the same list as you would use to determine whether an arrestee meets the criteria for a felony
DUI). The legislature sought to recognize the danger associated with repeat offenders, and ensure
community safety by requiring repeat offenders be ordered to provide proof of installation of an ignition
interlock device. Judges, prosecutors and sheriff’s/jailers are currently implementing booking strategies to
properly address the need for the mandatory conditions of release to be set (newly revised by the
legislature with this year’s DUI bill to include the proof of IID installation requirement).
The law enforcement obligation is to arrest and verify criminal history so as to have a reasonable belief
that the arrestee is a repeat offender as defined by the statute. The courts, prosecutors and jail are
responsible for implementing correct bail procedures and the setting of release conditions.
Special thanks to the 2012-2013 class of
TSRP Fellows. This amazing group of
dedicated and experienced DUI
prosecutors presented a combined 77
training hours for over 515 students
statewide!
2012-2013 TSRP Fellows
Amy Freedheim, King County
Jeff Torrey, City of Bellevue
Jody Newby, Cowlitz County
Luka Vitasovich, Clark County
Margie Alumbaugh, Kittitas County
Mary Muramatsu, City of Spokane
Miriam Norman, Jefferson County
Rachel Cormier-Anderson, City of Seattle
Rea Culwell, Columbia County
Stephanie Olsen, Spokane County
Tim Jones, Pierce County
Wendy Winfield, City of Yakima
TRIAL NOTEBOOK ESSENTIALS
Organization in the courtroom is more than just a
convenience. A jury will perceive an organized
lawyer to be more knowledgeable and authoritative.
Knowing that you have all of the necessary
documents and resources (ex - an objections tip
sheet, witness statement outlines, sample voir dire
questions, trial scripts, etc.) at your fingertips, can
foster a sense of ease when you answer to the judge
that the State is ready to proceed. Pulling a pre-
written pocket brief on a commonly raised motion
issue from a tab in your trial notebook can make the
difference between full-blown panic in front of your
judge and/or jury, and achieving a ruling in the
State’s favor without breaking a sweat.
Check out the excellent article and “top 10” list
authored by attorney Douglas Pierce in the
November issue of NWLawyer.
http://nwlawyer.wsba.org/nwlawyer
NEW MARIJUANA TRAINING
Happy
Happy
Holidays
ON LINE!
NEW HGN RULING FROM DIVISION III State v. Quaale, COA No. 30933-9-III (Nov. 7, 2013)
Def. was arrested and charged with Eluding
and Felony DUI in August 2011. After “bad
driving” before and during the Elude, Def. is
stopped and contacted by a Trooper (and
certified DRE). Def. smelled of alcohol,
performed poorly on the HGN test (the only
SFST performed), and ultimately refused the
BAC. According to Div. III’s opinion, the
question asked in relation to HGN was, "In this
case, based on the HGN test alone, did you
form an opinion based on your training and
experience as to whether or not Mr. Quaale's
ability to operate a motor vehicle was
impaired?" Defense timely objected stating
that the Trooper was offering his opinion as to
the ultimate question of guilt. The objection
was overruled, and the Trooper responded,
“Absolutely. There was no doubt he was
impaired.”
The COA held that the Def’s right to a fair trial
was violated by the improper opinion
testimony offered by the Trooper, which they
found overstated the exactness of HGN
results, violating limitations on HGN testimony
set out in State v. Baity, 140 Wn.2d 1 (2000).
The State attempted to distinguish the
testimony stating that it did not violate Baity
and the Trooper’s opinion did not attempt to
correlate HGN to a specific BAC level.
The nature of the specific question, extracting
only the performance on HGN, without regard
for the other signs of impairment evident in
the facts, as the basis for the Trooper’s opinion
on an ultimate issue of guilt, may have proven
more problematic here than the greater issue
of whether an officer may testify that the HGN
test is indicative of the presence of alcohol
and an indicator of impairment (but not a
specific level).
It remains to be seen whether Spokane
County will appeal this case for clarification.
For Training
Requests or
Technical Assistance
on Impaired Driving
Issues, please contact
the TSRPs:
Courtney Popp
206-720-3018 X24134
Moses Garcia
206-720-3018 X24117
Eastern WA Target Zero Prosecutor
Stephanie Olsen
The Traffic Safety Resource Program is funded by the
Washington Traffic Safety Commission, with funds from
the National Highway Traffic Safety Administration. Any
opinions expressed here are those of the author and not
those of WSP, WTSC, or NHTSA.
Traffic Safety Resource Prosecutors Washington State Patrol
811 E Roanoke St Seattle, WA 98201
Ph: 206.720.3018
Fax: 206.720.3246
UPCOMING TRAINING
OPPORTUNITIES
Exact dates, locations and sign-ups will
be announced in future issues of the
TSRP newsletter and on the TSRP website
(www.duienforcers.camp7.org)
Prosecuting the Drugged Driver/DRE
Pre-School for Prosecutors March 2014 – Western WA; September 2014 – Eastern WA
Impaired Driving Training Symposium
First week of May 2014 – Tulalip Resort, Marysville
DUI Prosecutor Boot Camp for County
and City Prosecutors
CJTC – June 2014
If your department or office would like
to host an impaired driving-related
training, please contact the TSRPs
directly. Our services are available for
all law enforcement agencies,
prosecutors, judges and traffic safety
stakeholder groups.
