THE ONLY THINGS YOU MUST DO IF PULLED OVER BY THE POLICE (in WA)
1. Show your license.
2. Show your registration.
3. Show proof of insurance.
4. Show your VIN #.
5. Allow officer to inspect car parts for mechanics and safety, if officer asks
6. Get out and stand by the side of your car, only if officer asks
a. Including passengers
7. Let officer search passenger compartment for weapons
8. TO BLOW
OR
NOT TO BLOW?
If you don’t blow @ the police station, you lose your license for 1 year.
- - - - - - - - - - - -
A. Don’t consent to any search
B. Don’t tell where going or where been
C. Don’t tell how much drank
D. Don’t do any roadside sobriety tests or roadside breath tests.
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6 POSSIBLE DWI RESULTS
1. Guilty Plea (As Charged—DWI)
2. Deferred Prosecution (2 yr alcohol treatment)
A. Only if admit alcohol/drug problem
3. Redued Charge/Plea Bargain
A. DWI < .15
B. Slow Reckless (“wet reckless”)
C. Reckless
D. Slow Negligent 1 (“wet neg”)
E. Negligent 1
F. Negligent 2 (civil infraction)
G. Civil Infraction like speeding
4. Trial
A. guilty or not guilty
5. Pretrial Dismissal (from defense motion)
6. Appeal
A. Win ( & possible remand) or lose
______________________________________________________________________________________________________________________
DOL PENALTIES
I. .08 or Higher
1st Administrative Action Against License:
90 day License Suspension
May be eligible for Ignition Interlock License - for period of license suspension
Requirements for Reinstatement of Driving Privilege:
2nd or Subsequent Administrative Action Against License:
2 year License Revocation
May be eligible for Ignition Interlock License - for period of license revocation
Requirements for Reinstatement of Driving Privilege:
Pay $150 reinstatement fee
SR-22 Insurance - 3 years
Pass Driver's Ability Test
II. Refusal
1st Administrative Action Against License:
1 year License Revocation
May be eligible for Ignition Interlock License - for period of license revocation
Requirements for Reinstatement of Driving Privilege:
Pay $150 reinstatement fee
SR-22 Insurance - 3 years
Pass Driver's Ability Test
2nd or Subsequent Administrative Action Against License:
2 year License Revocation
May be eligible for Ignition Interlock License - for period of license revocation
Requirements for Reinstatement of Driving Privilege:
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DWI Penalties (if convicted)
I aim to prevent this
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Washington's DUI laws are very strict, even for a 1st offense. You’re facing jail time or home monitoring. Multiple offenses face stiff minimum mandatory jail sentences. A DWI is considered a Gross Misdemeanor. In effect, it is like a low-level felony. (DWI & DUI are used interchangeably).
1st DUI conviction, the penalties are:
Maximum sentence of 365 days (1 year) in jail
Maximum $5,000 fine
There is a mandatory minimum sentence of 2 full days (24 hours) in jail or 15 days of electronic home monitoring.
If you blew a 0.15 BAC or above, or you refused the breath test, the mandatory minimum jumps to 48 hours in jail or 30 days of electronic home monitoring, just on a 1st offense.
A license suspension of 90 days, minimum.
If you blew a 0.15 BAC or above, or you refused the breath test, the license suspension period ranges from 1 to 2 years.
Required installation of an ignition interlock device as a condition of license reinstatement, to be used for 1 year.
There is a 5 year probation associated with any DUI conviction. Probation typically includes "standard" DUI conditions.
2nd DUI conviction, the penalties are:
Maximum sentence of 1 year in jail
Maximum $5,000 fine
There is a mandatory minimum sentence of 30 days in jail or 60 days of electronic home monitoring.
If you blew a 0.15 BAC or above, or you refused the breath test, the mandatory minimum jumps to 45 days in jail or 90 days of electronic home monitoring.
A license suspension of 2 years, minimum.
If you blew a 0.15 BAC or above, or you refused the breath test, the license suspension period ranges from 900 days to 3 years.
Required installation of an ignition interlock device as a condition of license reinstatement.
Required installation of an ignition interlock device as a condition of license reinstatement, to be used for 5 years (if previously restricted).
A 5 year probation with standard DUI conditions.
3rd DUI conviction, the penalties are:
Maximum sentence of 1 year in jail
Maximum $5,000 fine
There is a mandatory minimum sentence of 90 days in jail or 120 days of electronic home monitoring.
If you blew a 0.15 BAC or above, or you refused the breath test, the mandatory minimum jumps to 120 days in jail or 150 days of electronic home monitoring.
A license suspension of 3 years. It is a 4 year license suspension for BT refusal or a result of .15 BAC or higher.
If you blew a 0.15 BAC or above, or you refused the breath test, the license suspension period ranges from 900 days to 3 years.
Required installation of an ignition interlock device as a condition of license reinstatement.
Required installation of an ignition interlock device as a condition of license reinstatement, to be used for 10 years (If previously restricted).
A 5 year probation with standard DUI conditions. See my WA DUI probation page for further info.
[Reference: RCW 46.61.502]
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DWI DEFENSES & MOTIONS
MOTION & AUTHORITY
____1. To produce additional discovery. CrRLJ 4.7.
____A. Officer’s Breathalyzer operator’s
Certification Card per WAC 448-16-120 (2004)
____B. To be provided with a Bill of
Particulars--Is Def charged w/ DWI or Phys Control?
CrRLJ 2.4(e) & Clark v. Hogan,49 Wn. 2d 457 (1956)
____3. 911 audios or FST videos
____4. PDA REQUEST MADE: (city or county cases only.
I. To dismiss DWI charge.
____(1) 2 yr SOL Expired
____(2) Safely off roadway--No PC to Arrest/Private Property Defense
____(3) No rzble suspicion or PC to stop. CrRLJ 3.6; WA Const, Art. I, Sect 7; US Const, 4th &
14th Amendments; RCW 46.64.015 & .021; Terry v. Ohio, 392 US 1 (1968); Thornton, 41 Wn. App. 506 (1985); Michaels, 60 Wn.2d 638 (1962). No infraction ultimately committed
____ (4) No PC to arrest
____ (5) Pretextual stop
____(6) Exceed Terry stop time; Cole, 73 Wn. App. 844 (1994); Nave, 62 Wn.2d 446 (1963)
____(7) Double Jeopardy, Excessive fine or improper tow. WA Const, Art. I, Sect. 9; US
Const, 5th Amend (see attached memo & decl of facts)
____(8) Due Process violation (see memo)
____(9) Gov’t misconduct/CrRLJ 8.3 violation
____(10) No ID as driver. No facts or witness
____(11) No ID as driver. Corpus Delecti rule: must have ev indep of def’s admission.
Hamrick, 19 Wn. App. 417 (1978); Bremerton v. Corbett, 106 Wn.2d 569 (1986)
____(12) Drank alcohol after driving, but before blowing
____(13) Denied own blood test
____(14) Denied option of BAC test at other precinct. Interference w/ def’s rt to indep tests.
RCW 46.20.308; Blaine v. Suess, 93 Wn.2d 722 (1980).
____(15) Lack of Facts Sufficient, Knapstad, 107 Wn.2d 346 (1986)
____(16) Citation filed late/CrRLJ 2.1(d)(1) & (2); Greenwood, 120 Wn.2d 585(1993) & Bonifacio,
127 Wn.2d 482 (1995); Bepple, 85 Wn.2d 378 (1975); People v. Hanna, 541 NE 2d 737 (Ill. 1987)
____(17) Defective Charging Document. Uncon mandatory presumption by “as shown by”
language in info. Gellein, 112 Wn.2d 58 (1989); Auburn v. Brooke, 119 Wn.2d 623 (1992); State
v. Leach, 113 Wn.2d 679 (1989); State v. Kjorsvik, 117 Wn.2d 93 (1991).
____(17A) Vios presumpt of innocence.
____ (18) Other defect in information/complaint
____(19) Rt to speedy trial/arraignment violated. CrRLJ 3.3
____(20) Arresting officer didn’t ID himself properly when asked; RCW 46.61.020, last sentence.
____(21) “Lane travel” justification for stop is bogus
____(22) Implied Element. Or Suppress BAC. State’s inability to rebut the assertion of the
“implied Element” affirmative defense of non-consumption of alcohol following the time of driving
per State v. Crediford & State v. Robbins
____(23) Corpus Delecti Motion to Suppress admission/confession and Dismiss case. State v.
Aten, 130 Wn.2d 640 (1996)
City Cases Only
____(24) City violated RCW 35A.12.140 (if city ord) & 65.16.160 (if county) in purporting to
adopt-by-reference the State’s DWI law. Violates due process. Bothell v. Gutschmidt, 78
Wn. App. 654 (1995).
II. To suppress breath test
______ (1) 2004 law (SHB 3055) uncon—vios sep of powers, 1 subject rule & presump of innocence/due process (see memo)
_____(2)Collateral Estoppel/issue already decided at DOL hearing
_____(3) SHB 3055’s (2004 law) new warnings fail to advise properly
_____(4)Unfair, misleading or incaccurate implied consent warning, Bostrom; Mairs v. DOL, 70 Wn. App. 541, 546-47 (1993).
____(4a) Improper implied consent warning. “WILL” lose license when in reality, can win at DOL hearing. (If win at DOL hearing, submit victory doc). Misleads and pushes to blow when if knew maybe not suspended, might not blow. Hagen v. DOL
____(5) Improper Coercion. Def was denied rt to independent, knowing & intelligent decision to submit to or refuse breath test. RCW 46.20.308; Welch v. DMV, 13 Wn. App. 591 (1975); DMV v. McElwain, 80 Wn.2d 624 (1972); Hering v. DMV, 13 Wn. App. 170 (1975); Strant v. DMV, 8 Wn. App. 877 (1973); Junkley v. DMV, 7 Wn. App. 827 (1972).
_____(6) Miranda given after mouth check; Trevino, CrRLJ 3.1 (c)
_____(7) Rt to atty Denied; CrRLJ 3.1;
_____(8) No 15-min observation period or mouth check done. WAC 448-13-040; Sunnyside v. Fernandez, 59 Wn. App. 578 (1990) (See memo)
____(9) Bad DataMaster Components: Thermometer
_____(10) Bad DataMaster Software, not certified per Frye
____(11) Inadequate Certification of Data Master/Cop not certified w/in 3 yrs/No BAC cert card provided
_____(12) Too messed up to understand Miranda/State v. Salah Al-Hamdani, No. 47227-5-I, 12-01; State v. Bramlet, 609 P.2d 345 (N.M. 1980)
____(13) More than 10%-from-mean-difference in the 2 BAC readings
____(14) Other BAC reading error
____(15) Thermometer Motion
____ a.+/- 1 degree issues/emergency standards change
____ b. Thermo not NIST tested, so not per se admissible; Sea v. Clark-
Munoz, 7-1-04
____(16) Recorded w/out def’s Consent
____(17) Ambient failures and machine not out of circulation
____ (18) Other improper breath test procedure. WAC 448-16-050; Toxicologist Protocols
____ (19) Violation of Quality Assurance Procedures (in WSP Breath Test Manual)
____ (20) Solution not changed w/in 60 days/other external standard problems
____ (21) Violation of other part of WSP Breath Test Manual
____ (22) Simulator solution not chgned w/in 60 days, or expired after 1 yr
III. To suppress admission
_____(1) CrRLJ 3.5; Miranda; confession Edwards v. Az, 451 US 477 (1981); State v. Johnson, 48 Wn. App. 681 (1987)
_____(2) Inadmissible Hearsay
_____(3) CrRLJ 3.1/rt to atty vioed; WA Const, Art. I, Sect, 22; US Const, 6th Amend; State v. Fitzimmons; 93 Wn.2d 436 (1980); Az v. Holland, 711 P.2d 592 (1985); Spokane v. Kruger,
116 Wn.2d 135 (1991); State v. Prok, 107 Wn.2d 153 (1986); Sea v. Box, 29 Wn. App. 109 (1981); Sea v. Koch, 53 Wn. App. 352 (1991); State v. Easter, 130 Wn.2d 228 (1996)
_____(4)“Cat out of the bag”; Admission or confession before Mirandized so later Miranda won’t cure
_____(5) Admission on Police question form is dble hearsay
_____(6) Too messed up to understand
IV. To suppress FST’S
____(1) Non-consensual (See memo)
___ A. in custody
___ B. involuntary
____(2) No foundation; ER 901(b)9; NHTSA standards violated (see memo)
____(3) Too tipsy to consent (.13 or greater—State v. Salah Al-Hamdani (Div. I, 2001)
____ (4) Bad science; Frye, Riker. (see memo)
4A. To Suppress Use of Words ____(1) Prejudicial “Sobriety Test")
4B. To Suppress Testimonial part ____ (1) Not preceded by of FST’s Miranda warnings; CrRLJ
3.5; Pa. v. Munoz, 110 S.Ct. 2638 (1990)
4C. To Suppress Nystagmus Gaze Test ___(1) Bad science; Frye, Peterson, 39 Wn. App. 524
(1985); State v. Cissne, 72 Wn. App. 677 (1994); State v. Riker, 123 Wn.2d 351 (1994)
V. To Suppress reference to pupil dilation
____ (1) Bad science. Frye, dilation or reaction to light Riker.
VI. To Suppress Refusal (This maybe a TRIAL issue Post-Blakely)
____(1)Prejudicial/ER 402-03; Zwicker, 105 Wn.2d 228, Long, 113 Wn.2d 266; Parker, 16 Wn. App. 632
(1976); and irrelevant (See memo)
_____(2)Unfair or misleading implied consent warning; Bostrom
_____(3) Irrelevant b/c not reflect consciousness of guilt
_____(4) Confusion, Incapacity, or Earnest Attempt
_____(5) Rt to atty violated (See memo)
_____(6) Too messed up to understand
_____(7) No rzble susp/PC to suspect drugs to demand blood test. RCW 46.20.308 (2).
_____(8) Unlawful arrest
VII. To suppress alphabet test
_____(1) CrRLJ 3.5/Miranda. counting tests _____(2) CrRLJ 3.1/Rt toAtty violated)
_____(2) “Cat out of the bag”--pre-Miranda confession
VIII. To Suppress:
___(1) To suppress ev b/c interference w/ Def’s rt to get independ W’s
___(2) To suppress cop car video b/c driver not told of taping
In Limine Motions
IX. To exclude officer’s opinion re:
____(1) ER 701-05: BAC machine. Improper lay opinion & opinion on ultimate issue
____(2) To exclude testimony re ability ____ (2) Bad science; of HGN/Nystagmus test to show Frye, Riker, Cissne, specific levels of intoxication Peterson.
XI. To suppress reference to “weaving
_____(1) Due process w/in a lane” & RCW 46.61.140
____(2) Prejudicial/ER 402-03 (see memo)
____(3) No PC to Stop: Weaving not enough
XII. To suppress PBT
___(1) Frye v. US, 293 F.2d 1013 (D.C. Cir. 1923); Seattle v. Peterson, 39 Wn. App. 524 (1985); not WAC approved; State v. Riker, 123 Wn.2d 351 (1994); RCW 46.61.506(3); Bokor v. DOL, 74 Wn. App. 523 (1994)
XIII. To suppress beers
____(1) Illegal inventory srch
____(2) CrRLJ 3.6
XIV. To Compel Production of:
_____(1) Datamaster records
_____(2) CrRLJ 4.7; State v. Dunnivan, 65 Wn. app. 728 (1992)
XV. For a Subpoena Duces Tecum directed to:
XVI. For jury nullification _____(1) Victimless instruction/discussion. prosecution violates Due Process (See memo)
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DOL CIVIL LICENSE PROSECUTION
DOL: Preliminary Matters
1. Mail, don’t messenger, Request for Hrng to PO Box in Olympia
2. Suspension starts on day 61 after arrest
3. Have 30 days (from date of arrest) to request Hrng
4. If client attends, he will be asked address & basic data
DOL DEFENSES
_____1. Hearing is more than 60 days after arrest. [RCW 46.20.308 (8)] (File request
for hearing on day 29)
_____2. Driver didn’t receive notice of hearing; driver didn’t sign notice
_____3. Disco sent to wrong address: address on DOL’s computer, not address put on form
_____4. DOL didn’t’ give 10 days notice of hearing (check postmark)
_____5. Illegible breath test or other document
_____6. Tribunal acting like prosecutor (see memo)
_____7. Continuance denied vioed crim rt to not self-incrim b/c crim hrng came 2nd
_____8. Collateral Estoppel. Def won at prior crim hrng
_____9. Def wasn’t driving: civ W’s no show & subped, No ID as driver (Admission in DAR = inadmissible hearsay). Off no RS that def driving. (DOL Issue # 2)
____10. Not arrested/not lawfully contacted (DOL Issue # 1)
____11. No PC/RS to stop
____ A. Conclusory as to speed
____12. No PC/RS to arrest
____ A. Odor alone not enough
____13. Car was safely off rdway/priv. prop defense
____14. Defective sworn stment/off reports, so no jurisdiction (RCW 9A.72.0851)
____A. No penalty of perjury language
____B. Wrong place/no place
____C. Wrong date/no date
____D. Wrong time
____E. Report signed before date of BAC test
____F. Signature not under/at end
____G. No narrative of facts
____H. Just legal conclusion, no facts
____I. Officer not state reasons marked dn as refusal. Only speculation & opinion.
____15. DOL Error
____A. Missing pages
____B. Illegible
____C. Typos
____D. Boxes not checked
___1. 15 min period
___2. Breath or blood test
___3. Smoke, vomit
___16. BAC Cert card expired or missing (WAC 448-13-180)
___17. Exhibits wrong, or misnumbered
___18. Not a Refusal (DOL Issue # 4)
____A. Physical incapacity
____B. Inability not equal refusal. Police report says “unable” in “incapable” or
“inability”
____C. Earnest attempt does not equal refusal. Consented to test
____D. Low lung capacity or lung condition like asthma, bronchitis, etc. (have med
recs)
____E. Injury
____F. Incompetent/deaf/retarded/insane
____G. Unconscious
____H. Sickness
____I. Vomit doesn’t equal refusal
____J. Driver consented/wanted to take test
____K. No RS/PC to suspect drug use and therefore request blood test
____19. Denied opp for knowing & intell decision
____A. Bad warning given (actual prej req’d)
____B. Confusion (burden on def)
____C. Confusion not clarified
_____20. Tongue jewelry
_____21. Cop subpoenaed & no shows (can req an in-person hrng)
_____20. No blood test requested by officer when problem blowing
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What you should initially do
&
Questions to initially answer
Gather or do the following 5 things
You should get your driver’s abstract from DMV/DOL.
Get an alcohol/drug evaluation
Do a victim’s panel
Do an alcohol information school
Get the court docket for your case from the court clerk
__________________________________________________________________________________
Answer the following 25 questions
A. Date of Arrest?
B. Prop damage
C. Passengers?
D. You a US citizen?
E. You have commercial driver’s license (cdl)?
F. Pilot’s license?
G. Prior criminal convictions, esp. Def’d Pros, Reckless, Neg 1 or DWI?
H. Drive to Canada often?
(Get docket to answer 1 – 3)
You call re 48-hr rule at hr 49? & citation filed late and not w/in 48 hours [CrRLJ 2.1 (d)?—Must show prejudice
Did Officer sign citation?
Arraignment not w/in 14 days of 1st appearance or possible trial date is not w/in 105 days of filing? (CrRLJ 3.3)
4. Probable Cause to stop?
5. Probable Cause to arrest?
6. Wait time how long after pullover? More than 30 minutes?
7. Driver License status messed with by officer?
8. Car towed?
If yes,
Cop ask re: waive liability for vehicle/contents?
Cop ask re: if friend can come pick up car?
Cop ask if he could move car?
You send for improper impound hearing to get refund if wrongful tow
Did client consent to tow?
9. Any gov’t misconduct?
10. Did you ask for an atty at any pt?
11. Breathalyzer Machine Operator Error
Mouth check done before blowing
Did you blow excessively hard? (harder the blow, higher the reading)
Did officer change mouthpiece between each blow?
12. Did you admit to drinking or drugging before driving?
13. Did admission occur after you should’ve been read Miranda
14. How many officers?
15. Did Cop tell you that you were under arrest?
16. On private property for pullover?
17. Inventory search done of car?
18. Were you actually seen driving?
19. Did cop ask or tell you to do Field Sobriety Tests?
20. Shoes on? Level ground for test? Lighting? Cars & lights? Radio noise? Other cop cars & their lights?
21. Did you ask for an atty?
22. Did you ask for blood test? Or breath test at another precinct?
23. Ever ask officer to ID himself/show his card?
24. Did you blow into the roadside breathalyzer before being arrested?
25. You on meds? Other pills or sprays you were on? Other mouth stuff that might affect test?