Recently a blood test refusal was suppressed in a local district court. Although I was not the DUI Lawyer that litigated the issue, I know the Attorney that did and kudos to her. So that raises the question are blood test refusals admissible? At least according to one Judge in King County, the answer is no? Let’s take a closer look why?

Essentially two cases have changed the legal landscape when it comes to DUI blood testing evidence. The first case I have blogged about extensively. Missouri v. McNeely. In that case, the United States Supreme Court held that the natural metabolization of alcohol in the human body does not present an exigency issue that justifies an exception to the 4th amendment warrant requirement. In other words, a blood test is now considered a search, and a warrant is required.

The other case that has changed the legal landscape is a local case. State v. Gauthier. The Court of Appeals Division I held that a defendant’s refusal to consent to DNA testing cannot be used as evidence of guilt by the Prosecution. In other words, the Prosecutors can’t argue the reason the defendant refused a blood test is because he knew he was guilty.

Now clearly the McNeely case is applicable to DUIs. The question is whether the Gauthier case is? When you combine the two together it is very clear in my opinion it is applicable to DUI cases. Under a 4th amendment analysis when it comes to blood testing of any kind. Whether it is for DNA, or to test for alcohol and/or drugs in a DUI case it is considered a search. And therefore under Gauthier when a defendant is exercising their 4th amendment rights or their 5th amendment right to remain silent is not evidence of guilt.

Now the question becomes is Gauthier applicable to DUI breath test refusals? This is a question for another day and one I’m certain every DUI Attorney in Seattle will be litigating now that the door has been opened for challenging refusal evidence by this Judge in King County.

Again kudos to the DUI Lawyer that raised this issue. Excellent outcome.

As I blogged about several weeks ago. A new set of DUI laws in Washington State was recently passed by the State Legislature. Originally the new laws would have made Washington State the toughest state in the nation when it came to DUI penalties. But due to budget restraints and the current economy what was passed a few weeks is but a shell of what was originally proposed.

However one of the original ideas made it all the way through the signing and passage into law by Governor Inslee. And that is the 24/7 alcohol monitoring program. From what I hear this may be an excellent option for those who are repeat DUI offenders. Essentially it offers the chance to avoid jail if an individual agrees to be monitored and remain completely abstinent for a long period of time.

Due to the nature of this pilot program a lot of the details are not yet fully worked out. From what I hear this program will be implemented in three counties and two cities. The plan is for these jurisdictions to measure their success rates, costs, and issues with the program and then report back.

Participants in the program will be required to wear a bracelet that detects alcohol consumption. Probably very similar to a SCRAM bracelet or some other device that detects alcohol through your sweat glands. Additionally there may be a breathalyzer installed at your home connected to a phone line. There will be very strict probation monitoring guidelines and a complete abstinence from alcohol and other mood altering drugs.

What is not clear is how much discretion will the programs have in deciding whether someone has violated the terms of the agreement. In other words if someone tests positive for alcohol are they going to jail immediately for the duration of their mandatory sentence or will there be a second or third chance. My bet is it will be very strict and if a participant consumes a drop of alcohol they will be immediately booted from the program and will go straight to jail.

Like a deferred prosecution entering into this type of program should not be taken lightly. Yes avoiding jail sounds like a wonderful idea. But this type of program is a complete lifestyle change. In addition to the alcohol monitoring there will be treatment you have to complete as well. But it does give an individual an option to help themselves and change their life rather than going to jail where no good will come of it.

_
About the author: Matthew Leyba is a DUI Lawyer in Seattle, WA. He is a rising star in the field of DUI Defense, and is a Top rated DUI Attorney by Avvo. His practice focuses on representing those accused of DUI and other traffic offenses.

A few blog posts ago I wrote about the recent changes to DUI laws that were recently approved by the Washington State legislature. I would like to discuss each change, but writing about each one in a single post might be difficult since there were so many and they are all very detailed. So from this point forward I’m going to blog about each major change individually. First up the change to the employer owned vehicle exception for ignition interlock devices.

Currently RCW 46.20.385(1)(c)(i) states

The department shall require the person to maintain the device on all vehicles operated by the person and shall restrict the person to operating only vehicles equipped with the device, for the remainder of the period of suspension, revocation, or denial. The installation of an ignition interlock device is not necessary on vehicles 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 a requirement of employment during working hours. The person must provide the department with a declaration pursuant to RCW 9A.72.085 from his or her employer stating that the person’s employment requires the person to operate a vehicle owned by the employer or other persons during working hours. However, when the employer’s vehicle is assigned exclusively to the restricted driver and used solely for commuting to and from employment, the employer exemption does not apply.

In other words if you are required to have a functioning ignition interlock device in any vehicle your drive as a result of a DUI and you have to drive a vehicle for work. If that vehicle is owned, leased, or rented by the employer then you may be eligible to get the ignition interlock requirement waived on that employer vehicle. Seems like a pretty good deal, huh? Especially if you have to drive for work related purposes and you would otherwise lose your job if you cannot do that. When this legislation passed a few years ago I thought it was a brilliant idea and really forward thinking by the State Legislature.

However things have changed since SB 5912. The legislation that was recently passed will impact the employer owned vehicle IID exception in the following way:

The bill adds a “waiting period” before an individual is eligible for this exception. If it is a first DUI then that waiting period is the first 30 days of the requirement. If it is a second DUI then the waiting period is the first 1 year of the requirement.

So if it is a first offense 30 days may not result in a loss of the job. I guess conceivably a person could take a vacation or if their employer is understanding might be willing to work around the requirement until the exception kicks in. However if it is a second offense or greater than you can pretty much kiss any job goodbye, unless you have an awesome employer.

The reason behind the change has to do with federal regulations and making sure Washington stays in compliance with those to access federal highway funding. Opponents of the changes expressed concerns over the changes and how it will negatively impact drivers in Washington State, but millions of dollars from the federal government will always win those arguments.

_
About the author: Matthew Leyba is rated as one of the best DUI Attorneys in Seattle by Avvo, and has been named a Rising Star in the field of DUI Defense by several publications including the Seattle Met Magazine, and Super Lawyers Magazine. This is an honor less than 2.5% of all Attorneys in Washington State receive.