In almost all DUI cases the original basis of the stop is for a traffic infraction. In many of those DUI cases lane travel is an issue and the underlying infraction. RCW 46.61.140(1) defines what is a lane travel violation here in Washington State. It states, “vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

So here is the scenario. A law enforcement officer is on the freeway late at night. They observe a vehicle ahead of them. This vehicle crosses their lane of traffic briefly and then moves back into their lane. It may happen a second time again, then the officer initiates a stop citing a lane travel violation. After some initial questioning the driver is suspecting of drinking alcohol and is asked to exit the vehicle. A DUI investigation is conducted and the driver is ultimately arrested.

This type of scenario happens every day in every part of the country. However here in Washington State, a recent case of State v. Prado has squarely and definitely addressed the issue of whether a brief crossing of a traffic lane is a sufficient basis to conduct a traffic seizure under RCW 46.61.140 for a lane violation statute.

That Court has found that brief incursions are to be expected when driving and therefore are not grounds for a traffic infraction as long as there is no danger to other vehicles. Now the Prado court failed to discuss how many times a vehicle crosses a lane and for how long constitute an infraction. And this is where most likely the Prosecution and the Defense disagree when it comes to these types of legal issues.

My opinion is the Prado court used two very important terms when reaching its decision. The first being the word “brief” and the second being the word “incursions.” The definition of brief is “of short duration.” The word “incursions” is plural meaning more than one. Therefore I believe if the lane violations are brief in duration, and are more than once than the Prado case applies. The Prosecution on the other hand always argue that the facts in Prado are what control, and in that case the lane violation only occurred once and it was for one second. Anything more is inapplicable. This thinking in my opinion is incorrect and should always be challenged.

Recently I had a case with this very same scenario. Fortunately for my client and me the Judge ruled our favor and found the terms “brief,” and “incursions” meant brief in time and more than one. If you have been stopped for a lane violation statute and were subsequently arrested for a DUI its important you speak with a Seattle DUI Attorney immediately, contact my office to set up a free constitution and ensure your constitutional rights are protected.

As part of my DUI practice I have to stay on top of the ever changing landscape of DUI related case law. Whether its at the local DUI district court level, RALJ appeals, State Supreme Court, or even the National DUI news, the experienced DUI Lawyer must stay on top of it.

Recently I became aware of a case that came out of the Ninth Circuit United States Court of Appeals. It not from Washington and it doesn’t involve a DUI, but the reasoning can still be applied and argued here in Washington State when it comes to a DUI charge. Below is a background of the case.

The defendant was stopped at about 1:43 am for allegedly having tinted windows. The Officer who initiated the stop made contact and ran the drivers license. Another officer arrived and ordered the driver to exit the vehicle. As he exited the vehicle the primary officer pulled him aside and handcuffed him and told him to sit against the front bumper of the car. For the next 25-30 minutes the Officers yelled at the defendant, harassed them, and threatened them. All the while not conducting any sort of investigation.

The Ninth Circuit stated that a prolonged seizure without a valid investigatory purpose was unreasonable in violation of the fourth amendment. The critical inquiry is whether the officers diligently pursued a means of investigation that was likely to confirm or dispel their suspicions. In determining the reasonableness of the length of detention the Court looked at whether the Officers were acting swiftly to conduct an investigation or whether they used threats of force, or other unnecessary tactics.

Ultimately the Ninth Circuit held that an objectively reasonable officer responding to the scene of this detention would have known its duration of 45 minutes without probable cause, during which the Officers did nothing to diligently investigate was an unlawful detention and in violation of the 4th amendment.

So how does this related to Washington State DUI cases. Well often times in my practice I have cases that involved the Seattle Police departments DUI squad. This is a squad of officers that for the most part investigate Seattle DUI cases. Often times the initial contact is made by a non-DUI squad officer and they call for back up. The problem is when the non-DUI squad officer doesnt conduct any sort of investigation. They dont ask the driver of the vehicle any follow up questions regarding alcohol consumption, or their driving. They dont ask for the field sobriety tests, or the portable breath test. They basically just detain the driver until a DUI squad officer arrives.

I believe this detention is unlawful unless the non-DUI squad officer conducts some kind of investigation. I believe this is a violation of the 4th amendment based on the unreasonable length of detention and the lack of any sort of meaningful investigation into the DUI.

Remember if you have been contacted by a officer who suspects you of a DUI, its important to ask to speak with a DUI Attorney, not agree to any field sobriety tests or the portable breath test. Exercise your right to remain silent and most of all be polite.

The Washington State Supreme Court has thrown out a man’s DUI conviction because it was never proven that he was advised of his right to have an independent blood test at this own expense in Spanish.

The Implied Consent Warning is a something that is read to DUI suspects prior to law enforcement asking them to submit to a breath or blood test. The warning outlines what happens to a persons license if they take the test and its over the legal limit or if they decline the test. It also informs them if their license gets suspended they may be eligible for an ignition interlock license, and they have the right to have additional tests administered by any qualified person of your own choosing. In other words, the DUI suspect as a right to have an independent test done at their own expense. Such a test may be introduced at trial.

In the Washington State Supreme case, the defendant was convicted of a DUI and hit/run. During the arrest the Trooper had an interpreter read the implied consent warning to the defendant. However at trial the interpreter was never called to testify and therefore it couldn’t be shown whether the defendant was advised of the right to an independent blood test.