Kevin Trombold 206.382.9200

On August 19, 2010, the Washington State Supreme Court has ruled once again that our state will follow the U.S. Supreme Court’s decision in Gant.  This decision follows the Washington Supreme’s decision of late in State v. Afana (read Washington DUI Center blog on Afana) or (read Afana here).  Interestingly, the State unsuccessfully argued here, in State v. Adams, that the officer had a “good faith belief” that the prior case law was the law dictating the stop and arrest of Mr. Adams.  Since I was old enough to carry the weight of law books that has been an exception that the Supremes couldn’t refuse.  Of late, with Gant, Afana, and now Adams, it looks like the officers are going to have to study up.

The facts in Adams involve Trooper Volpe of the Washington State Patrol following Adams from a Casino parking lot – a cash cow for the district court criminal traffic accounts receivable point of view.  The Trooper lit up Adams when he pulled into a Taco Bell parking lot.  Adams exited his car (violation number two) and started challenging the Trooper on the race based stop (violation number three).  Adams was taken into custody on a warrant and cocaine was found in his locked car after the Trooper unlocked the car with keys taken from Adams pocket – which the Washington Supremes say cannot be done.   The Court of Appeals was overturned after ruling that the search was justified since Adams was a recent occupant of the vehicle.  The appeals court reasoned that the arrestee could quickly re-enter a locked vehicle with a mechanical quick release devise and that locking it in the presence of an officer shows culpable intent.  Others might reason that it shows someone’s elevated expectation of privacy from police interference.

Supremes Say "Reach Matters"

Here the Washington Supremes quickly dismiss the State prosecutors’ argument that an officer may have a “good faith” reliance on pre-Gant case law.  The U.S. Supremes have rejected such a position since the 1970’s.

For attorneys looking to quote the Gant decision in argument or briefs here you go:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed. U.S. V. Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)

For lawyers wanting a more detailed understanding of the U.S. Supremes of Gant’s limiting of the “safety and evidentiary justifications of a search incident to arrest under the Belton decision.

Under Chimel, police may search incident to arrest only the space within an arrestee’s “`immediate control,’” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S., at 763, 89 S.Ct. 2034. The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), and following the suggestion in Justice SCALIA’s opinion concurring in the judgment in that case, id., at 632, 124 S.Ct. 2127, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.    U.S. V. Gant, 556 U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)

Kevin Trombold 206.382.9200

On August 16, 2010, Division One of the Washington State Court of Appeals settled an issue that DUI defense attorneys have been grappling with for several years now regarding what jurors know about a felony DUI defendant’s past.  The jurors in a felony DUI case will decide if the defendant has four prior “convictions for DUI.”  But, what’s odd about this ruling is that jurors don’t get to decide if the out of state statute matches the Washington DUI statute – that question was taken away from the jurors and put in the judge’s lap.  This is important decision because the definitions of crimes vary greatly from state to state.  What it means is that the judges took a decision away from the jurors.  This is bad if you believe in the power of jurors as a “check” on the court system.

First, lets discuss the elephant in the room.  Most jurors, like normal people, when told of a defendant’s four prior convictions for DUI will assume the defendant guilty without any further evidence or thoughts.  A reasonable person won’t wait around to hear about the accuracy or bad maintenance of the breath test machine or the faulty blood analysis when the person has been convicted four times for the same offense.  What the defense has argued in the past is that the question of priors shall be addressed by the jurors but only after the first phase of the trial is done.  The argument has been that jurors decide the guilt or innocence of a DUI and then they decide the number of priors in what is referred to as a bifurcated trial.   The prejudice of the prior convictions doesn’t shade the decision process of the new DUI case.  This issue of a bifurcated trial was not the point of this case.  That was decided by another court last year.  The issue here is whether the jurors, who already will hear of the priors, get to analyze the priors.  The answer is “No!”  The judges took that analysis away.

Judges took power away from jurors

The Court of Appeals, in State v. Chambers, has decided that not only will jurors hear of the priors but also they don’t get to compare them to the Washington definition of “prior DUI conviction.”  The judge will do that for them.  That leaves nothing left for them to analyze about the priors.  The only remaining value of the evidence of priors is prejudice when weighing the new DUI evidence. How can a normal person make a fair determination in the new case without considering the priors? We will never know if the officer was wrong in the current case.  The days of a fair trial for felony DUI cases are gone.

When the officer sees a car with a tail light or other equipment problem, runs the plates, the registered owner has four prior DUIs, and has odor of alcohol on breath, its over.   The opinions of the officer will be jaded – it doesn’t matter how well he or she does on the roadside agility drills, they are going to jail.  The prosecutor’s filing decision will be jaded.  At court, the judge’s bail decision will be jaded.  And finally, the jurors, the final check on our justice system will be shaded and powerless to critique the evidence.

…The court correctly instructed the jury that the State had the burden to prove beyond a reasonable doubt that Chambers had four prior offenses within ten years. Chambers did not object to the admissibility of four prior DUI convictions, but argued that the jury had to decide whether her prior California DUI conviction would have been a DUI conviction in Washington…we reject Chambers’ argument. We affirm the jury’s conviction of felony DUI.

Kevin Trombold 206.382.9200

First they need a reason to get their sniffer a little bit closer to you.  Smelling alcohol in traffic from a trailing car would be laughable.  So the officer needs justification to pull you over.  That’s no problem.  There are hundreds if not thousands of silly Rules of the Road on the books giving the DUI police officers a legal reason to activate their emergency lights.  Here’s my favorite:

RCW 46.61.630.  Coasting prohibited.

(1) The driver of any motor vehicle when traveling upon a down grade shall not coast with the gears of such vehicle in neutral.

(2) The driver of a commercial motor vehicle when traveling upon a down grade shall not coast with the clutch disengaged.

If you “coast” on your way home from that office party you may find yourself submitting to the red and blues of a police cruiser.  Then, when they shuffle that bionic nose upside your car you are guaranteed a free ride to the station for a chance to blow in Washington State’s ancient breath test machine, the DataMaster.  But that’s a whole different set of problems.  Important here, is the odor detected by officers at the roadside.  It provides all sorts of legal justifications for additional invasions of your privacy such as taking you into custody for a ride to the station.  So lets talk about that super nose and what it can do.  Officers are sure to write about the “odor from the vehicle” and then later, to show their discerning pallet, the “odor from the person.”  They seem mosquito-like how they can follow carbon dioxide from our breath upwind to locate your body and then, your blood.  Maybe too many vampire books have circulated through our house lately.

If you can’t tell,  I don’t believe that officers have bionic noses.  But don’t listen to me,  I’m just your average non-scientist lawyer.  Listen to scientists and read peer reviewed papers says the National Academy of Sciences.  Lawyers, judges and prosecutors need to be better at science they told us last year.

One such study on super bionic police noses examined the officers ability to discern the smell of marijuana, a smell that many would say is even more detectable than alcohol on breath.  Several smart people from the University of Pennsylvania School of Medicine, Smell and Taste Center, with some funding from the Attorney General’s Office of the State of New Jersey and United States District Court, Northern District of California, San Francisco, first experimented with human ability to smell marijuana through plastic bags.  They concluded overwhelmingly that we can.  Next they wanted to know if officers can actually detect from the drivers window bagged marijuana that is located in a closed trunk.  (They also tested our sniffers from other spots in the cab of the car).  ”No” was the conclusion.  Another test involved detecting marijuana grow operations being vented out chimneys, which doesn’t concern our question of roadside stops, but was another “No” as well. Doty, Wudarski, Marshall, and Hastings concluded:

The present findings throw into question, in two specific instances, the validity of observations made by law enforcement officers using the sense of smell to discern the presence of marijuana.   Although these instances reflect a very small set of studies with very specific constraints, they do suggest that a blanket acceptance of testimony based upon reported detection of odors for probable cause is questionable and that empirical data to support or refute such testimony in specific cases is sorely needed.  Marijuana Odor Perception: Studies Modeled From Probable Cause Cases

Monument to Bionic DUI Noses

The only appropriate end to this blog is a quote from the famous Russian Poet, Nikolai Gogol’s satirical short, “The Nose,” written prior to 1836, in which the Russian barber finds a nose in his morning muffin.  He recognizes it as the nose of one of his costumers, Mr. Kovalev, who also awoke to a fright that same day:

Collegiate Assessor Kovalev also awoke early that morning. And when he had done so he made the “B-r-rh!” with his lips which he always did when he had been asleep — he himself could not have said why. Then he stretched, reached for a small mirror on the table near by, and set himself to inspect a pimple which had broken out on his nose the night before. But, to his unbounded astonishment, there was only a flat patch on his face where the nose should have been! Greatly alarmed, he got some water, washed, and rubbed his eyes hard with the towel. Yes, the nose indeed was gone! He prodded the spot with a hand — pinched himself to make sure that he was not still asleep. But no; he was not still sleeping. Then he leapt from the bed, and shook himself. No nose! Finally, he got his clothes on, and hurried to the office of the Police Commissioner.

Later locates his nose but then is unable to attach it.  It refuses as its obtained a higher social status than Mr. Kovalev.

In part three of Gogol’s short story, Kovalev wakes up and his nose is attached as though it was all a dream.  Maybe its no mistake that “Nos,” the Russian word for nose is the backwards spelling of the word for “dream.”  Maybe DUI litigators can start challenging the institutional belief that officers have super bionic smelling capabilities.

Kevin Trombold 206.382.9200

What should you do when you suddenly feel intoxicated but you are driving?  Pull over, right?  ”Maybe not” turns out to be the best advice.

After years of handling DUI cases for drivers who do make the correct decision in pulling over to the side of the road, I’m finally getting the point – the prosecutors don’t care, they want you in jail even if you made the decision to pull over because you felt intoxicated.  Or even more ironic, with no driving at all, after you walked out of the bar and decided to sleep it off for a bit in your lawfully parked car, they want to reward your responsible decision with some time behind bars.

I’ve been doing an informal survey of prosecutors from the various Puget Sound counties and cities searching for the best advice and I’m reporting that there is not consensus.  First, I always have to move past their party line mantra, “they shouldn’t be drinking and driving in the first place.”  Easy enough, since its lawful to drink and drive.  I have to repeat it several times though, “the law is that you may drink and drive.”  Yes, it’s true.  Even the reader of this blog may wonder about this first step in the analysis.  The campaigns to convince you that it’s illegal to drink and drive have worked.  Most of you think it’s unlawful to drink and drive yet you do it all the time – an interesting social science question, cultural hypocrisy even.  At the heart of that question is our ability to know the line between lawful and unlawful conduct is obfuscated somewhat by the DUI law itself.  You might be over a .08 on the machine but not be intoxicated.  Or you might not provide a breath sample and still be prosecuted for DUI under the “affected by” prong.   But before you click to the next screen, the point is nobody knows where the line is and it’s difficult to predict what the faulty machine will report as a measurement.  Lets get back to the decision to pull over…

The DUI statute (actually its the “physical control” statute but it has all the same punishments as the DUI statute) says that no person shall be convicted if they make the right decision to pull over.

RCW 46.61.504(2)- Physical control of vehicle under the influence.  “…No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway.”

Safely Off The Roadway?

Could it be clearer?  ”No person may be convicted.”  Unfortunately, prosecutors and case law in Washington have helped push this question from a charging question to what they call an affirmative defense.  State v. Votava and City of Spokane v. Beck have clearly settled this issue.  So prosecutors may choose to file the case and let the jury decide – and that’s exactly what they always do.  Even though someone meets the affirmative defense and we all know they made the right decision, the prosecutors file the DUI/Physical Control charge.  Why?  In short, they see it as an attempted DUI.  Attempted crimes are a substantial step towards the crime – having the specific intent to commit the underlying crime.  One must have a certain state of mind called “specific intent.”  The problem for the prosecutor is that people don’t have the necessary state of mind when they are sleeping-it-off: for two reasons. First, they are sleeping and do not have any criminal state of mind, whether negligent, reckless, or intentional.  Secondly, the crime of DUI has no state of mind.  So, the prosecutor, feeling uncomfortable that the person is dangerous and about to commit a crime files a charge exposing the person to a permanent conviction of DUI/Physical Control.

What does a responsible person do then?   Should they put themselves and others at risk by driving home or should they pull over?  In short, “maybe” seems to be the best advice.  The longer explanation may be too much to remember and also very cold here in the Pacific Northwest.  Turn the car off after complete removal from any possible roadway (including any parking strip on the side of the road), put the keys in the trunk, climb in the back seat, do anything else to assure that you don’t look like you are thinking of driving.  In fact, the farther away from that steering wheel the less culpable you will be.

Video of Drunk and Dangerous Car Sleeping (Warning: This video contains offensive language)

Kevin Trombold 206.382.9200

The name of the case sounds a little silly but the precedential value is serious for anyone stopped by police for any reason, even for a simple equipment violation.  State v. Tibbles, decided by the Washington Supreme Court on August 5, 2010, dictates that our Washington State Constitution prohibits police from searching a vehicle when they observe an odor of marijuana without first obtaining a warrant.  The police must first get a warrant before they search the car even if they have “probable cause” that a crime has occurred.  The “exigent circumstances” argument, often wielded by the prosecutor when no other warrant exception applies, was rejected by the court in this decision.

Factually, an officer stopped Tibbles just before midnight for defective taillights.  Upon contact the officer noted an odor of marijuana.  Despite Tibbles denying use and a search of Tibbles revealed no additional evidence, the officer searched the car and found marijuana and a pipe under the drivers seat.  Importantly, Tibbles was cited and released at the scene.  The release at the scene frustrated the prosecution whose argument was that Tibbles posed an imminent danger to the community

Important in the analysis of this case is the Supreme Court’s treatment of the “exigent circumstances” argument.  That exception to the general rule, that warrants are required to search, has been used by prosecutors for decades to justify otherwise lawless searches during routine stops.

Washington's Constitution Has More Protection Than the U.S. Constitution

When Article 1 Section 7 of the Washington State Constitution says, “no person shall be disturbed in his private affairs, or his home invaded, without authority of law,” that means, warrantless searches are presumed unreasonable.  Included are searches of our cars according to State v. Parker, 139 Wn.2d 486, 494 (1999).

In agreement with current law, Tibbles made no argument regarding the existence of probable cause to search.  The Supreme Court settled that issue in 2008 in, State v. Grande, 164 Wn.2d 135, were the Court said “because the officer had training and experience to identify the odor of marijuana and smelled this odor emanating from the vehicle, he had probable cause to search the vehicle.” (p. 146)

The Tibbles decision stays centered on the exigent circumstances exception.  As the most common pre-arrest exception to the warrant requirement, it exists when there is  fear for their safety of the officer or the community, the suspects are on the verge of flight from the scene, or the danger of destruction of evidence is present.  Here, Tibbles was stopped for a routine traffic stop.  There was plenty of opportunity to secure the scene for a telephonic warrant.

The Court concluded that the State did not meet its burden to show that the facts presented an exigency. It may have been expedient, but mere convenience was simply not enough.

This case reminds me of a scientific study done six years ago that debunked the idea that officers have bionic noses.  That study, Marijuana Odor Perception: Studies Modeled From Probable Cause Cases, showed that what officers claim they smell is not supported by empirical research.   (More on that study later this week.)

Those of you who are more experienced at reading DUI case law or proposed legislation may be wondering where the “carnage on the roadway” language is as it is usually present in the first paragraph of law enforcement oriented decisions preceding some creative interpretation of the law.  Rest assured its there, but it was demoted to the dissent.  Justice Johnson reminds us of the dangers of impaired driving.   Unfortunately for Justice Johnson’s logic, the officer in this case testified that the driver, Tibbles, showed no signs of impairment and denied any consumption of marijuana; so his focus on impaired driving or the “carnage on the roadway” seems not just irrelevant but strange.  Here’s a portion of his dissent:

It is established but not sufficiently recognized that marijuana, like alcohol, impairs behavioral and cognitive skills and thus impairs driving performance. Indeed, marijuana intoxication is a leading cause of fatal driving accidents in this country. Thus, while marijuana use outside the automobile context may not automatically implicate an immediate concern for public safety, a “stoned” driver certainly does (especially with a supply of additional, readily available drugs under his seat)

The name Tibbles will be heard often in court not just because its fun to say but also because its clear logic lays a path that will remain for some time to come.

Dr. Ashley Emery

The Ahmach 2 motions have been moved to Courtroom 3-F at the Norm Maleng Regional Justice Center.

Dr. Ashley Emery is on the stand today

Rod Gullberg is now on the stand for direct examination from Prosecutor Moses Garcia.

This is taking place in Courtroom 4-D if the Norm Maleng Regional Justice Center located in Kent, Washington for those of you who would like to come and watch.

The Media has taken interest in the arguments, click on the links below:

King 5:  Judges Asked to Reinstate Breathalyzer Tests in DUI Cases

Directions to RJC from Seattle:

I-5 South:  Merge onto I-5 South, Take exit 154A on the left and merge onto I-405 N toward Renton, Take exit 1 for WA-181 S toward Tukwila/W Valley HWY, Turn Right at WA-181 S/W Valley RD, Continue to follow WA-181 S, Turn left at W James Street, Turn right at 4th Avenue N – Courthouse will be on the right.

I-5 North:  Merge onto I-5 North, Take exit 142A to merge onto WA-18 E toward Aurburn, Take exit on WA-167 toward Kent/Renton, Take the WA-516 exit toward Willis ST/Des Moines, Turn right at WA-516/S Kent Des Moines RD (signs for Kent City Center), Continue to follow WA-516 E, Turn left at Central AVE S, Turn left at E Smith ST, Turn right at 4th Ave N – Courthouse will be on the left.