DUI Case Law Outline
by Edwin Aralica, Associated Counsel for the Accused
edwin.aralica@metrokc.gov
BILL OF PARTICULARS
STATUTORY CONSTRUCTION
DUI ELEMENTS
STOP
PROBABLE CAUSE TO ARREST
SEARCH
DETENTION
CRRLJ 3.1 RIGHT TO COUNSEL
3.5
RIGHT TO COUNSEL
FIELD SOBRIETY TESTS
Standardized
Voluntary
Pupil Dilation
Alphabet test
Portable Breath test
Horizontal Gaze Nystagmus
MOTIONS IN LIMINE
DEFENSES
DEFERRED PROSECUTIONS
IMPLIED CONSENT LAW
IMPLIED CONSENT BLOOD TESTS
BREATH TEST
RETROGRADE EXTRAPOLATION
BLOOD TESTS
AFFECTED BY PRONG
CORPUS DELICITI
DRE
PHYSICAL CONTROL
Safely off the roadway
REFUSALS
REFUSAL OF SFST
CLOSING ARGUMENTS
DOUBLE JEOPARDY
SUFFICIENCY OF EVIDENCE FOR DUI CONVICTION
SENTENCING
LESSER INCLUDED
General
Collateral Estoppel
Hearsay
Jury Issues
VEHICULAR HOMICIDE
BILL OF PARTICULARS
• State ex rel. Nugent v. Lewis, 93 Wash.2d 80, 605 P.2d 1265 (1980) (Defendant charged with driving a motor vehicle while under influence of intoxicating liquor was entitled to a bill of particulars)
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STATUTORY CONSTRUCTION
• State v. Donahue, 105 Wash.App. 67, 18 P.3d 608 (2001) (Driving while intoxicated (DWI) statute describes a single offense that a driver might commit by more than one method)
• Clough v. City of Seattle, 47 Wash.2d 716, 289 P.2d 728 (1955) (Where defendant was arrested for being drunk on public street, he could also be charged with reckless and drunk driving in complaint filed in municipal court without any additional arrests)
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DUI ELEMENTS
• State v. Hansen, 15 Wash.App. 95, 546 P.2d 1242 (1976) (driving with alcohol in the blood does not, by itself, constitute driving under the influence)
• State v. Komoto, 40 Wash.App. 200, 697 P.2d 1025 (1985) (Defendant's physical condition is critical element of crime of driving while under the influence)
• State v. Gillenwater, 96 Wash.App. 667, 980 P.2d 318 (1999) (erratic driving not required to convict for DUI)
• Lubliner v. Ruge, (1944) 21 Wash.2d 881, 153 P.2d 694 (1944) (DUI is a strict liability crime)
• State v. Shabel, 95 Wash.App. 469, 976 P.2d 153 (1999) (defining three elements of DUI)
• State v. Komoto, 40 Wash.App. 200, 697 P.2d 1025 (1985) (DUI includes operated a vehicle, ie. Driving plus physical control of vehicle)
• State v. Williams, 141 Wash. 165, 251 P. 126 (1926) (To convict for driving vehicle on highway while intoxicated, proof must show that defendant actually drove vehicle)
• State v. Beck, 42 Wash.App. 12, 707 P.2d 1380 (1985) (To be guilty of driving while intoxicated, § 46.61.502, driver must be in physical control of vehicle and also must have had vehicle in motion at time in question)
• U.S. v. Dotson, 34 F.3d 882, 32 A.L.R.5th 875 (1994) ("Moped" was not motor vehicle for purposes of Washington motor vehicle statute that makes it crime to drive vehicle under influence of intoxicating liquor)
• Kaiser v. Suburban Transp. System, 65 Wash.2d 461, 398 P.2d 14 (1965) (One who innocently takes a pill prescribed by a doctor cannot be convicted under § 46.56.010 prohibiting driving under influence of drug, and thus be negligent per se, unless he has knowledge of pill's harmful qualities.)
• Sengchanthong v. Commissioner, 92 Conn. App. 365 (2005) (even though the car was on, windshield wipers were on, the defendant was not operating his vehicle)
• State v. Day, 96 Wn.2d 646 (1981) (driving on private property not a DUI)|
• State v. Fladebo, 113 Wn.2d 388 (1989) (plea of guilty to DUI to avoid vehicular assault charges)
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STOP
• State v. Graham, 2007 WL 4574969 (officer did not have particular suspicion of wrongdoing which would justify stop based on an observation of the driver in a romantic position with passenger in a truck parked on the side of the road)
• State v. Demars, 2007 WL 2446066 (police exceed geographical jurisdiction to arrest where evidence insufficient to establish whether police was within the city limits when the traffic stop was initiated)
• Middleburg Heights v. Quinones, 2007 WL 2051994 (Weaving not a violation because statute only requires that driver maintain one lane as nearly as practicable and that before changing lanes a driver first ascertain that the lane change can be made safely)
• State v. St. Martin, 2007 WL 865860 (premature activation of high beams when passing a patrol vehicle does not justify a traffic stop under community caretaking principles)
• State v. Pollman, 156 P.3d (2006) (unpublished) (defendant was seized without a reasonable suspicion when officer retained his driver's license based solely on defendant's admission to drinking a few beers and backup officer's uncorrobated representation that defendant had an odor of alcohol)
• State v. Pepin, 920 A.2d 1209 (2007) (squealing tires did not justify traffic stop for road-racing or DUI)
• State v Burks, 114 Wash.App. 109 (2002) (which upheld the stop of a driver for a cracked windshield pursuant to RCW 46.37.010)
• State v. Phillips, 2006 WL 3477003 (crossing edge line does not constitute failure to obey traffic control devices)
• State v. Rincon, 2006 WL 3513133 (slow driving without more, does not create reasonable suspicion to stop for DUI)
• State v. Curtis, 2006 WL 3068812 (police lacked reasonable suspicion of traffic infraction or DUI where defendant weaved outside his lane three times over several hundred yards)
• Clarkston v. State, 63 Wn.App. 500 (1991) (fresh pursuit act only applies to felonies)
• Delaware v. Prouse, 440 US 648 (1979)
• Campbell v. DOL, 31 Wn. App. 833 (1982) (bad stop where motorist tells copy he sees drunk driver but police personally see no bad driving)
• Tennant v. Roys, 44 Wn. App. 305 (1986) (weaving within the lane)
• State v. Lesnick, 84 Wn.2d 940 (1980)
• State v. Seiler, 95 Wn.2d. 43 (1982)
• State v. Campbell, 31 Wn.App. 833 (1982)
• US v. Colin, 314 F.3d 439 (2002)
• State v. Ladson, 138 Wn.2d 564 (2003)
• State v. Moore, 120 P.3d 635 (2005)
• State v. O’Neill, 148 Wn.2d 564 (2003)
• Campbell v. Dept. of Licensing, 31 Wash.App. 833, 644 P.2d 1219 (1983) (A police officer may make investigatory stop for suspected drunk driving, but before doing so he must first possess a well-founded suspicion based on articulable facts that such a violation has been committed or is presently being committed.)
• City of Seattle v. Tolliver, 31 Wash.App. 299, 641 P.2d 719 (1982) (pulled over lawfully for green vine attached to bumper)
• State v. Martin, 106 Wn.App. 850, 25 P.3d 488 (2001), (“this court recently rejected arguments identical to those adopted by the superior court on RALJ appeal. In Martin, the court considered three cases in which police officers used information gained through a vehicle license number and DOL records to detain or investigate the defendants. Noting that the dissemination of licensing information to law enforcement officers was authorized by statute and that the records did not contain highly personal information, the court held that under article I, section 7 of the Washington State Constitution, drivers do not have a reasonable expectation of privacy in their DOL records 'that precludes law enforcement officers from searching those records without an individualized suspcicion of the driver's involvement in criminal activity.' Martin, 106 Wn.App. at 852. The court also held that the records check did not violate the defendants' Fourth Amendment rights. Martin, 106 Wn.App. at 861.”)
• State v. Jackson, 121 Wash.App. 1066, Not Reported in P.3d, 2004 WL 1206981,Wash.App. Div. 1,2004 (Even though laser readings suppressed, enough for stop)
• State v. Anderson, 683 N.W.2d 818 (2004) (Officer’s wrong interpretation of traffic law not justify stop)
• State v. Robinson, 592 S.E.2d 733 (N.C.App. 2004) (delay of eight to ten seconds at traffic light not equal enough to stop for DUI)
• State v. O'Cain, 108 Wn. App 542 (2001) and State v. Sandholm, 96 Wn. App.846 (1999) (for a discussion of arresting officer reliance on a radio dispatch)
• State v. Thornton, 41 Wn.App. 506 (1985)
• State v. Mote, 129 Wash.App. 276, 120 P.3d 596 (2005) (distinguishes State v. Rankin no need for independent reason when car is parked)
• State v. Moore, 129 Wash.App. 870, 120 P.3d 635 (2005) (officer's warrantless stop of car registered to person listed as "missing/endangered," was reasonable under community caretaking exception to warrant requirement)
• State v. Homles, 117 P.3d 360 (2005)
• State v. Potter, 119 P.3d 877 (2005)
• People v. Cordero, 358 Ill.App.3d 121 (car leaving a parking lot at night not enough for a Terry stop)
• Powell v. State, 841 N.E.2d 1165 (2006) (anonymous tip did not justify stop)
• Director of Revenue v. Reed, 184 S.W.3d 564 (2006) (driving a car into a ditch is not accident for probable cause purposes)
• State v. Milotte, 95 Conn. App. 616 (2006) (Because the driver was not operating the vehicle in an erratic or dangerous manner or otherwise engaged in or about to engage in criminal activity and because there was no report of recent crime in the area, the officer lacked a particularized and objective factual basis to warrant an investigatory stop)
• Tennant v. Roys, 44 Wn. App. 305 (1986).
• US v Lyons, 7 F3d 973 (10th Cir 1993
• People v Faletti, 573 NE2d 867 (Ill App 1991)
• State v Boley, --NW2d—(Iowa App 2004)(Driver made wide, but legal turn, then two miles of drifting, coming close to hitting curb twice)
• State v Brechler, 412 NW2d 367 (Minn App 1987)
• City of Mason v Loveless, 622 NE 2d 6 (Ohio App 1993)
• Salter v N. Dak. Dept. of Trans., 505 NW2d 11(N.D. 1993) (While traveling 30-35 MPH in a 50 zone)
• State v Cerny, 972 SW2d 910 (Tex App 1998)
• Warrick v Commissioner, 374 NW2d 585 (Minn. App 1985)
• State v Tarvin, 972 SW2d 910 (Tex App 1998)
• State v Livingston, 75 P3d 1103 (Ariz App 2003)(Crossed fog line one time)
• Crooks v State, 710 So2d 1041 (Fla App 1998)
• State v Tague, 676 NW2d 197 Iowa 2004) (Crossed left edge line)
• State v Vaughn, 448 So2d 915 (La App 1984) (one six inch intrusion)
• Rowe v Maryland, 769 A2d 879 (Md. 2001)
• State v Caron, 534 A2d 978 (Me. 1987) (Straddled center line for 25-50 yards)
• State v Downs, –NE.2d—(OhioApp 2004) (single brief violation)
• Commonwealth v Garcia, --A2d –(Pa 2004) (Straddled center line for two blocks)
• Commonwealth v Chernosky, --A2d—(Pa 2004) (Drifted right, almost hitting telephone pole, crossed centerline more than twice, drifted from right to left, swerved within lane)
• State v Huddleston, --SW2d—(Tex App 2005) (Crossed fog line five times over five-to-six miles)
US v Freeman, 209 F3d 464 (6th Cir. 2000)
• State v Brown, 119 WApp 473 ((2003) (not improper to enter highway from parking lot without using signals)
• State v Goodman, 220 Ga App 169 (1996) ( If the driver can only turn legally in one direction, a signal is not required)
• State v Padilla, 850 P2d 372 (Or 1993) ( If driver is in dedicated lane, no signal is required)
• US v Miller, --F3d – (5th Cir 1998) (Defendant activated signal but neither turned nor changed lanes)
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PROBABLE CAUSE TO ARREST
• State v. Morgan, 2007 WL 4372961 (Ohio App. 2 Dist.) (police lacked PC to arrest where driver stopped for minor traffic violation, the officer smelled alcohol, and the driver admitted drinking earlier)
• City of Norton v. Wonderly, 2007 WL 4354408 (Kan. App.) (911 call from another motorist reporting driver was serving speeding does not provide probable cause to arrest unless there is something more)
• State v. Williams, 85 Wash.App. 271, 932 P.2d 665 (1997) (odor may justify a brief detention, it is not enough to justify an arrest)
• People v. Roybal, 655 P.2d 410 (1982) (odor case)
• Newby v. State, 358 S.W.2d (1965) (odor case)
• Keehn v. Tarrington, 834 P.2d 112 (1992) (odor case)
• State v. Bridge, 452 N.W.2d 542 (1993) (odor case)
• State v. Johnson, 338 N.W.2d 769 (1983) (odor case)
• Hutchinson v. Davenport, 54 P.3d 352 (2002) (odor case)
• State v. Swanson, 164 Wis.2d 437 (1991) (odor case)
• State v. Garrett, 525 La.App. (1988) (odor case)
• State v. Kliphouse, 771 So.2d 16 (2000) (odor case)
• O’Neill v. DOL, 62 Wash.App. 112 (1991)
• State v. Gellenwater, 96 Wn. App. 667 (1999) (probable cause where non-causing injury/accident participant where driver, passenger and car each smelled of alcohol beer found on floorboards and in cooler behind driver’s seat)
• Fritts v. DOL, 6 Wn.App. 233 (1971) (which says can arrest for non-alcohol related offense)
• State v. Avery, 103 Wash.App. 527 (2000)
• RCW 46.04.055
• State v. Ellison, 271 Ga.App. 898 (2005) (red, bloodshot, watery eyes and refusals of FSTs, odor of alcohol, no swaying, no slurred speech, and mere presence of alcohol in body not enough for probable cause for arrest)
• State v. Wiggins, 817 N.E.2d 652 (2004) (officer had no probable for warrant in this marijuana case (urine test))
• State v. Shaheed, 270 Ga.App. 709 (2004) (no probable cause based solely on smell of alcohol and refusal of field sobriety tests)
• State v. Tiffin, 202 Or.App. 199 (2005) (no probable cause for stop of DUI—driving fine only odor of alcohol)
• State v. Cerrillo, 122 Wash.App. 341, 93 P.3d 960 (2004) (Officer had probable cause to arrest defendant for driving under the influence of alcohol, based on information that officer had gained after an initial encounter with defendant, while defendant was inside a parked car and had an odor of alcohol; since the first encounter did not rise to the level of a seizure, which could have been unlawful, the officer was able, during their second encounter, to lawfully arrest defendant because he had probable cause to believe that defendant was unlawfully driving under the influence of alcohol.)
• Torres v. State, 182 S.W. 899 (2005) (officer’s opinion of intoxication based on another officer’s observations does not support probable cause)
• State v. Gordon, 2007 WL 2019799 (officer’s subjective evaluation of the existence of PC is not controlling)
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SEARCH
• State v. Shriner, 739 N.W.2d 432 (2007) (noncensual warrantless blood draw violates the 4th amendment in the absence of exigent circumstances)
• State v. Bauder, 2007 WL 777995 (Vt) (Routine warrantless search after occupant has been arrested violates state constitution)
• State v. Haney, 195 Or.App. 273, 97 P.3d 1211 (2004) (Warrantless entry illegal into car after car accident)
• State v. Burbach, 706 N.W.2d 484 (2005) (odor of alcohol insufficient to expand to search of vehicle)
• State v. Wolters, 133 Wn.App. 297 (2006) (facts sufficient for exigent circumstances in this DUI case)
• State v. Wolters,, 133 Wn. App. 297 (2006) (exigent circumstances justify entry into house for arrest of drunk driver)
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DETENTION
• State v. Willoughby, 2008 WL 73630 (Idaho) (Anonymous tip of a fight in progress did not provide reasonable suspicion to detain driver, especially since the officers did not witness a fight when arrived at the scene)
• State v. Stroud, 30 Wash. App. 392 (1981) (seized when “blue lights” come on)
• United States v. Soto, 988 F.2d 1548, 1555 (10th Cir. 1993) (the retention of a driver's license constitutes a seizure because it indicates to a reasonable person that they are not free to leave)
• Terry v. Ohio, 392 US 1 (1968) (investigative detention, not meant for evidence gathering)
• Florida v. Royer, 446 US 544 (1983)
• RCW 46.61.021
• State v. Williams, 102 Wn.2d 733 (1984) (police exceeded Terry stop)
• State v. Santacruz, 132 Wn.App. 615 (2006) (officer asking about the defendant’s drug use based on dilated pupils was proper extension of the scope of the original lawful stop)
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CRRLJ 3.1 RIGHT TO COUNSEL
• State v. Tupper, 2007 WL 4563940 (Minn. App.) (driver’s right to consult with counsel prior to deciding whether to submit to breath test is not vindicated where it was 3 am and driver was only given 30 minutes to find an attorney)
• State v. Copeland, 130 Wn.2d 244 (1996)
• State v, Templeton, 148 Wn.2d 193 (2002)
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3.5
• Miranda v. Arizona, 384 US 346 (1966)
• Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138 (1984)
• State v. Darnell, 8 Wash.App. 627 (1973) (custody there is a request of FSTs investigation focuses on the defendant, interrogation questions result incrimination statements, even if answer is exculpatory)
• State v. Earls, 116 Wn.2d 364 (1991)
• State v. Terrovona, 105 Wn.2d 632 (1986)
• Edwards v. Arizona, 451 US 477 (1981)
• Minnick v. Mississippi, 498 US 146 (1990)
• State v. Grieb, 52 Wash.App. 573 (1988) (violation of right to counsel equals suppression)
• State v. Teller, 72 Wn. App. 49, 863 P.2d 590 (1993) (After Miranda given, no additional rights are required under CrRLJ 3.1(c). Access to attorney via phone hookup need only be provided if legal assistance is requested)
• State v. Kirkpatrick, 89 Wn. App. 407 (1997) (Miranda warning is itself insufficient to fulfill the mandate of CrR 3.1 (c)(2) that a person in custody to desire a lawyer be provided with a means of communicating with a lawyer at the earliest opportunity; not a DWI case)
• State v. Johnson, 48 Wn.App. 681 (1987) (pretrial hearing pursuant to 3.5)
• State v. Coen, 203 Or.App. 92, 125 P.3d 761 (2005) (statements were involuntary)
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RIGHT TO COUNSEL
• State v. Fitzsimmons, 93 Wn.2d 436 (1980)
• Arizona v. Holland, 711 P.2d 592 (1985)
• Spokane v. Kruger, 116 Wn.2d 135 (1991)
• Seattle v. Box, 29 Wn.App. 109 (1981)
• Seattle v. Koch, 53 Wn.App. 352 (1991)
• State v. Easter, 130 Wn.2d 228 (1996)
• State v. Trevino, 127 Wash.2d 735, 903 P.2d 447 (1995) (Advice of right to counsel was not given to driving under influence (DUI) arrestee "as soon as practicable" and "as soon as feasible" after his arrest as required under rule, where at least 45 minutes elapsed between arrest and advice, during which time arrestee was transported to public safety building and preliminary steps to administration of breathalyzer test, such as checking his mouth, were completed.)
• City of Spokane v. Kruger, 116 Wash.2d 135, 803 P.2d 305 (1991) (Suppression of tainted evidence, including driver's refusal to submit to breath test, rather than dismissal of charge for driving while intoxicated, was proper remedy for violation of driver's right to counsel.)
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FIELD SOBRIETY TESTS
• State v. Reed, 2006 WL 3849267 (no reasonable suspicion to detain for field sobriety tests based on odor, red eyes, lateness of hour, and defendant admission to drinking of two beers)
• State v. Cauthron, 120 Wn.2d 879 (1993) (general discussion of SFSTs)
• City of College Place v. Staudenmaier, 110 Wash.App. 841, 43 P.3d 4 (2002) (No state law or statute has adopted NHTSA standards for probable cause)
• Gassaway v. State, 957 S.W.2d 48, 51 (Tex. 1997) (A field sobriety test yields physical evidence of a suspect’s mental and physical faculties)
• People v. Carlson, 677 P.2d 310, 317 (Colo. 1984) (The sole purpose of roadside sobriety testing is to acquire evidence of criminal conduct on part of the suspect)
• State v. Nagel, 880 P.2d 451, 455, (Ore. 1998) (“By requiring defendant to perform a series of unusual maneuvers and acts, the officer was able to detect certain aspects of defendant’s physical and psychological condition that were not detectable through simple observation by any member of the public or by a police officer located in a public place.” … “[A] field sobriety test may reveal evidence of equally private facts about an individual, including whether individual is illiterate, has alzheimer’s disease, or suffers from multiple sclerosis”)
• Hulse v. State, 961 P.2d 75, 84 (Mont. 1998) (“A roadside sobriety test involves an examination and evaluation of a person’s ability to perform a series of co-ordinative physical maneuvers, not normally performed in public or knowingly exposed to public viewing, for the purpose of determining whether the person under observation is intoxicated. Unlike the quality of one’s voice or one’s handwriting, people do not regularly stand alongside a public road reciting the alphabet, count backward from 107, stand on one leg while counting from 1001 to 1030, or walk a line, forward and back, counting steps heel to toe.”)
• Blasi v. State, 167 Md. App. 483 (2006) ( the administration of field sobriety tests by a police officer constitutes a "search" within the meaning of the 4th amendment, but are allowed based on articulable suspicion)
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STANDARDIZED
• State v. Homan, 732 N.E.2d 952 (2000) (standardized field sobriety tests that are conducted in a manner that departs from the established methods are inherently unreliable)
• US v. Horn, 185 F.Supp.2d 530 (Md. 2002) (HGN comes admissible only if prosecutor meets foundational requirements)
• State v. Brown, 852 N.E.2d 1228 (2006) (SFSTs suppressed because officer did not comply with NHTSA)
• State v. Kelly, 896 A.2d 129 (2006) (the trial court properly admitted the expert testimony of an optometrist and certified field sobriety test instructor, who testified concerning the validity of three field sobriety tests, which the defendant had been asked to perform and had failed)
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VOLUNTARY
• People v. Carlson, 677 P.2d 310 (1984)
• Seattle v. Personeus, 63 Wn. App. 461, 819 P.2d 821 (1991). (A driver suspected of DWI has no legal obligation to perform a field sobriety test)
• City of Seattle v. Stalsbroten, 138 Wn.2d 227 (1999). (However, a defendant's refusal to perform a field sobriety test (FST) can be admitted as evidence at trial. Such tests are nontestimonial evidence that are not compelled by the State, and the Fifth Amendment does not prohibit admitting such refusal evidence at trial)
• Heinemann v. Whitman County, 105 Wn.2d 796 (1986)
• Seattle v. Mesianni, 110 Wn.2d 454 (1998) (to suppress physical tests for failure to obtain valid consent from the defendant prior to the administration of said tests)
• State v. Jensen, 44 Wash.App. 485 (1986)
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PUPIL DILATION
• Frye v. US, 293 F.2d 1013 (DC Cir. 1923)
• Seattle v. Peterson, 39 Wn.App. 524 (1985)
• State v. Cauthron, 120 Wn.2d 879 (1993)
• State v. Riker, 123 Wn.2d 351 (1994)
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ALPHABET TEST
• State v. Vickers, 878 S.W.2d 329 (1994) (after arrest, alphabet test is testimonial and should have been suppressed)
• Pennsylvania v. Muniz, 496 US 582 (1990) (certain statements testimonial in DUI arrest and excluded re 5th amendment violation)
• State v. Allred, 622 So.2d 984 (Fla. 1993) (did not read Miranda and did alphabet test, the test is suppressed for testimonial and 5th amend. Reasons)
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PORTABLE BREATH TEST
• Seattle v. Peterson, 39 Wn.App. 524 (1985) (suppression of the PBT)
• State v. Cauthron, 120 Wn.2d 879 (1993)
• Department of Lic’ v. Bokor, 74 Wn.App. 523 (1994) (police cannot rely on PBT for probable cause unless 1) officer is familiar with it, 2) machine is kept up
• People v. Bass, 351 Ill. App.3d 1064 (2004) (PBT inadmissible to rebut defendant’s testimony that he did not consume alcohol)
• State v. Smith, 130 Wn.2d 215, 922 P.2d 811 (1996) (In the absence of a Frye hearing or specific approval of the portable breath testing (PBT) device, the result of PBT is inadmissible for any purpose and the State employs such unapproved devices at its peril if it attempts to use the evidence they generate to establish probable cause.)
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HORIZONTAL GAZE NYSTAGMUS
• People v. McKown, 2007 WL 2729262 (HGN cannot be admitted without a full Frye hearing)
• State v. Haneberg, 2007 WL 1531410 (HGN administered in front seat of police cruiser was not in substantial compliance with NHTSA and was properly excluded)
• State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000) (HGN comes in only for consumption)
• US v. Horn, 185 F.Supp. 530 (Md. 2002) (HGN comes admissible only if prosecutor meets foundational requirements)
• State v. Homan, 732 N.E.2d 952 (2000) (standardized field sobriety tests that are conducted in a manner that departs from the established methods are inherently unreliable)
• Seattle v. Petersen, 39 Wn.App. 524 (1985) (suppress HGN)
• State v. Cissne, 72 Wn.App. 677 (1994) (suppress HGN “whether it is reliable as an indicator of the probability of impairment or of a specific blood alcohol level.”)
• State v. Hurley, 2003 WL 22700758 (Officer lacked PC to arrest for DUI where HGN test improperly admitted)
• Stovall v. State, 2004 WL 950047 (Cannot admit vertical HGN without Frye hearing)
• State v. Koch, 126 Wn.App. 589 (2005) (exclude HGN for403 cumulative evidence)
• State v. Balbi, 89 Conn.App. 567 (2005) (foundational requirements for HGN 1) methodolgly has been tested, 2) known or potential rate of error, 3) the prestige and background of the expert witness supporting the evidence 4) scientific technique in question relies on subjective interpretations and judgment of the expert 5) whether the testifying expert can present the methodology underlying the scientific testimony in such a manner that the trier of fact can reasonably draw its own conclusions)
• State v. Dahood, 148 N.H. 723, 728, 814 A.2d 159 (2005) (HGN is one of several field sobriety tests recommended by the National Highway Traffic safety Administration to assist law enforcement in determining if a driver is under the influence of alcohol)
• Schultz v State, 106 Md.App. 145, 664 A.2d 60 (The cases and literature indicate that, in addition to alcohol, many other factors have been mentioned as a possible cause of nystagmus. They include: (1) problems with the inner ear labyrinth; (2) irrigating the ears with warm or cold water under peculiar weather conditions; (3) influenza; (4) streptococcus infection; (5) vertigo; (6) measles; (7) syphilis; (8) arteriosclerosis; (9) muscular dystrophy; (10) multiple sclerosis; (11) Korchaff's syndrome; (12) brain hemorrhage; (13) epilepsy; (14) hypertension; (15) motion sickness; (16) sunstroke; (17) eye strain; (18) eye muscle fatigue; (19) glaucoma; (20) changes in atmospheric pressure; (21) consumption of excessive amounts of caffeine; (22) excessive exposure to nicotine; (23) aspirin; (24) circadian rhythms; (25) acute trauma to the head; (26) chronic trauma to the head; (27) some prescription drugs, tranquilizers, pain medications, anti-convulsants; (28) barbiturates; (29) disorders of the vestibular apparatus and brain stem; (30) cerebellum dysfunction; (31) heredity; (32) diet; (33) toxins; (34) exposure to solvents, PCBS, dry cleaning fumes, carbon monoxide; (34) extreme chilling; (35) eye muscle imbalance; (36) lesions; (37) continuous movement of the visual field past the eyes, i.e., looking from a moving train; (38) antihistamine use. See State v. Witte, supra; State v. Clark, supra; State v. Superior Court, Mark A. Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am.Jur. Proof of Facts 3d 439 (1989); Louise J. Gordy & Roscoe N. Gray, 3A Attorney's Textbook of Medicine §§ 84.63 and 84.64 (1990), and other cases and treatises hereinbefore mentioned)
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MOTIONS IN LIMINE
• State v. Smissaeter, 41 Wn.App. 813, 815, 706 P.2d 647 (1985) (exclude testimony about the effects of alcohol)
• State v. Kruger, 116 Wn.App. 685, 692-93, 67 P.2d 1147 (2003) (exclude testimony about the effects of alcohol)
• State v Slone, 133 Wn.App. 120 (2006) (no prejudice to defendant when the testifying office inadvertenly violated the motion in limine by talking about the SFTS and giving the defendant the Miranda warnings)
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DEFENSES
• State v. Crediford, 130 Wash.2d 747, 927 P.2d 1129 (1996) (Affirmative defense provided for in statute making it offense for driver to have amount of alcohol in his system while driving that registers as 0.10 percent of breath or blood within two hours after driving, that driver's blood alcohol concentration test results were affected by consumption of alcohol between time of driving and time of test, required defendant to disprove necessary element of offense, thus effectively placing burden on defendant to prove his innocence, in violation of due process.)
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DEFERRED PROSECUTIONS
• City of Spokane v. Whitehead, 115 P.3d 336 (2005) (Deferred only granted once per lifetime)
• State v. Higley, 78 Wn.App. 172 (1995) (to accept a deferred prosecution is not the same as to plead guilty)
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IMPLIED CONSENT LAW
• State v. Prok, 107 Wn.2d 153 (1986) (suppression of breath test because the warnings were not understood by the suspect re not advised of right to counsel)
• Seattle v. Gerry, 76 Wn.2d 689, 692. (The State cannot show a waiver of the right to counsel if the defendant did not understand the warning)
• State v. Tetzlaff, 75 Wn.2d 649, 652. (One cannot effectively waive such a constitutional right without knowledge of its existence)
• State v. Begicevic, 2004 WL 201059 (Wis.App.) (Foreign language equals difficulties with implied consent law)
• State v. Bartels, 112 Wn.2d 882, 774 P.2d 1183 (1989) (Implied consent warnings that contained at your own expense language was inaccurate as to indigent defendants. Each of the consolidated cases remanded to allow the State to prove that the defendants were not indigent and thus not prejudiced.)
• State v. Brokman, 84 Wn.App. 848 (1997) (may continue testing without renewed implied consent warnings, until obtaining valid test)
• State v. Baldwin, 109 Wn.App. 516 (2001) (blood test for drugs justified under circumstances, implied consent constitutional as applied to drug cases)
• State v. Brokman, 84 Wn. App. 848, 930 P.2d 354 (1997) (Under the implied consent law, a person is deemed to have given consent to a valid, accurate and reliable test or tests of a person’s breath or blood by statutorily and administratively defined methods)
• Kent v. Beigh, 145 Wn.2d 33, 44 (2001) (The DataMaster is the only breath test instrument approved by the state toxicologist. The rules dictating how to perform a breath test and what constitutes a valid test are set out in WAC 448)
• Medcalf v. Department of Licensing, 133 Wn.2d 290, 297 (1997) (The purposes of the implied consent law are: 1) to discourage individuals from driving motor vehicles while under the influence of alcohol or drugs; 2) to remove the driving privileges of those individuals who are disposed to driving while intoxicated, and 3) to provide an efficient means of gathering reliable evidence of intoxication or non-intoxication)
• State v. McNichols, 128 Wn.2d 242, 906 P.2d 329 (1995) (An officer administering the BAC test is required to inform the DWI suspect of his/her rights under the implied consent statute so individual can make informed and intelligent decision about how to exercise his or her statutory rights)
• State v. Rivard, 131 Wn.2d 63, 929 P.2d 413 (1997) (A lawful arrest upon probable cause is a prerequisite to the application of the implied consent statute. Here, no arrest for vehicle homicide could have taken place because victim had not died)
• State v. Smith, 84 Wn. App. 813 (1997) (where state did not arrest, even though they could have, implied consent does not allow them later to seize blood from doctor who took blood, although it may be seized in accordance with other search and seizure law)
• State v. Rivard, 131 Wn.2d 63, 929 P.2d 413 (1997) (motorist in vehicle homicide, even though Mirandized, never under custodial arrest so no implied consent warnings were required)
• Williams v. Dept. Of Licensing, 46 Wn. App. 453, 455, 731 P.2d 531 (1986) (underlying arrest need not be for DUI for valid arrest for DUI)
• State v. Bostrom, 127 Wn.2d 580, 902 P.2d 157 (1995) (Washington case law requires strict adherence to the plain language of the implied consent statute)
• State v. Bartels, 112 Wn.2d 882, 774 P.2d 1183 (1989) (officers can not supplement statutory warnings by informing drivers they may have additional tests taken Act your own expense)
• State v. Holcomb, 31 Wn. App. 398, 642 P.2d 407 (1982) (test suppressed because arrestee not advised of availability of independent test)
• Conolly v. Dept of Motor Vehicles, 79 Wn.2d 500, 487 P.2d 1050 (1971) (omission of right to additional tests renders license revocation invalid)
• Clyde Hill v. Rodriguez, 65 Wn. App. 778, 831 P.2d 149 (1992) (substituting "one or more" for "additional" testing valid substitute because it not misleading) (J. Forest dissenting)
• City of Bellevue v. Moffitt, 87 Wn. App. 144 (1997) (advising arrestee he has right to additional testing "as provided in RCW 46.61.506" and giving a copy of the statute is not misleading or inaccurate)
• Thompson v. D.O.L., 91 Wn. App. 887, 895 (1998) (The result of the breath test will be suppressed only if 1) the inaccurate warning deprives the driver of the opportunity to make a knowing and intelligent decision and 2) the driver demonstrates he was actually prejudiced by the inaccurate warning)
• State v. Bostrom, 127 Wn.2d 580, 902 P.2d 157 (1995) (Decision to blow or not to blow not made unknowing where administrative consequences of .10 breath test not given. Statute does not require notice of administrative consequences)
• DOL v. Sheeks, 47 Wn. App. 65, 734 P.2d 24 (1987) (Momentary misunderstanding will not excuse refusal. The confusion sufficient must be so pervasive and so extreme that the driver is unable to make a knowing and intelligent decision as to whether or not to take the test)
• City of Sunnyside v. Sanchez, 57 Wn. App. 299, review denied, 114 Wn.2d 1028 (1990) (officer can take arrestee to second machine location when first machine malfunctions)
• Kent v. Beigh, 145 Wn.2d 33 (2001) (Police are not authorized to perform a blood test merely because the DataMaster registers multiple interference readings.)
• O’Neill v. Dept. of Licensing, 62 Wn. App. 112, 121 (1991) (The state has the burden to prove that a breath test machine not present at a particular medical facility when they rely on the instrument not present exception in RCW 46.20.308(2)
• State v. Baldwin, 109 Wn. App. 516 (2001)(Div. III) (Officer had statutory authority to request a blood test after a prior low breath test reading failed to adequately explain the degree of subject’s apparent degree of impairment. The authority is based in the plain language of RCW 46.20.308(2))
• City of Blaine v. Suess, 93 Wn.2d 722 91980)(finding interference with accused’s exercise of right to additional test because accused had limited English proficiency, told he could not have blood test in jail, and kept overnight)
• Mairs v. Department of Licensing, 70 Wn. App. 541, 851 P.2d 665 (1993) (PBT not approved breath device so police properly inquired whether arrestee would submit to blood draw)
• O’Neil v. Dept of Licensing, 62 Wn. App. 112, 813 P.2d 166 (1991) (Though it is not an element in every case, where there is an issue of fact regarding the lack of presence of a breath test machine at a particular facility, the State has the burden to prove that one was not present.)
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IMPLIED CONSENT BLOOD TESTS
• State v. Steinbrunn, 54 Wn. App. 506, review denied, 113 Wn.2d 1015 (1989) (Probable cause to arrest must exist prior to drawing the blood of an unconscious person)
• State v. Hill, 48 Wn. App. 344 (1987) (pre-existing requirement of probable cause prior to blood draw a constitutional requirement)
• Nettles v. DOL, 73 Wn. App. 730, 732, 870 P.2d 1002 (1994) (An unconscious person, or one incapable of refusal is deemed not to have withdrawn consent. RCW 46.20.308(4). In other words, a person incapable of refusal can not overcome the presumption that s/he gave implied consent to a blood test. In addition, they are deemed to have received the [verbal] warnings required in RCW 46.20.308(2).RCW 46.20.308(4))
• Steffen v. DOL, 61 Wn. App. 839, 812 P.2d 516 (1991) (level of intoxication did not render person "unconscious" and request for breath test properly made)
• DOL v. McElwain, 80 Wn.2d 624, 496 P.2d 963 (1972) (driver unresponsive to request to take test because of level of intoxication is not unconscious and is deemed to have refused).
• Kent v. Beigh, 145 Wn.2d 33 (2001) (The inability to obtain a breath test based on repeated interference messages is not sufficient basis for taking a blood test.)
• State v. Weston, 54 Wn. App. 105, 772 P.2d 1036 (1989) (isopropyl alcohol does not necessarily invalidate results of gas chromatography)
• State v. Garrett, 80 Wn. App. 651 (1996) (WAC 448-14-020(3)(b) requires that the blood sample shall be preserved with anti-coagulant. Compliance with WAC language mandatory. Lack of evidence blood sample preserved with anti-coagulant supported trial court’s vacating conviction)
• State v. Barefield, 47 Wn. App. 444, 735 P.2d 1339 (1987), aff’d, 110 Wn.2d 728, 756 P.2d 731 (1988) (label and testimony established anticoagulant was in test vial)
• State v. Clark, 62 Wn. App. 263, 814 P.2d 222 (1991) (vacutainer vials contained a sufficient amount of anti-coagulant)
• State v. McNichols, 128 Wn.2d 242 (1995) (jail guards did not interfere with blood test and implied consent warnings)
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BREATH TEST
• City of Seattle v. Allison, 148 Wn.2d 75 (2002) (Test results constituted prima facie evidence that the machine used to test defendant’s breath was operating within the temperature range required by law, establishing the necessary foundation to admit the breath test results, rejecting arguments that because breath test documents do not record an actual temperature and thermometers have built-in variances in accuracy, it is impossible to establish a prima facie showing of meeting WAC requirements)
• City of Seattle v. Clark-Munoz, 152 Wn.2d 39 (2004) (BAC result must meet the technical requirements of RCW 46.61 and state toxicology regulations. If they do not, they may not be admitted as any other competent evidence of intoxication under RCW 46.61. 502)
• State v. Wittenbarger, 124 Wn.2d 467, 489, 880 P.2d 517 (1994); State v Straka, 116 Wn.2d 859, 874-75, 810 P.2d 888 (1991) (Foundational requirements for BAC requires testimony 1) that the machine was in proper working order, 2) that if the chemicals were used in testing they were correct and correctly used 3) the operator was qualified and performed the test correctly, and 4) that the results are accurate)
• Seattle v. Carnell, 79 Wn App. 400, 902 P.2d 186 (1995) (The person who changes the simulator solution is not a necessary foundation witness for the admission of breath test results)
• State v. Watson, 51 Wn. App. 947, 756 P.2d 177(1988) (Results of Breathalyzer are not admissible unless the State complied with the requirement for maintaining the Breathalyzer machine adopted by regulation by the State Toxicologists)
• Blaine v. Suess, 93 Wn.2d 772 (1980) (suppress or dismiss because of interference with defendant’s right to obtain an independent test)
• State v. Shiver, 900 So.2d 615 (2005) (breathtest document violates Crawford and confrontation)
• State v. Woolbright, 57 Wash.App. 697, 789 P.2d 815 (1990) (Chemical tests are neither necessary nor required to prove intoxication for driving while intoxicated purposes.)
• City of Mount Vernon v. Mount Vernon Municipal Court, 93 Wash.App. 501, 973 P.2d 3 (1999) (police officer’s failing to print out defendant’s breath test results immediately upon completion of test did not violate statutory protocol for breath tests)
• State v. Donahue, 105 Wash.App. 67, 18 P.3d 608 (2001) (State, in a driving while intoxicated (DWI) prosecution, has the burden of proving beyond a reasonable doubt that the 0.10 blood alcohol test reading was correct, and the defendant may attack the accuracy of the reading.)
• State v. Milstead, 646 P.2d 63 (1982) (case if the defense wants to admit BAC)
• City of Fircrest v. Jensen, 76738-6 (2006) (SHB 3055 is constitutional)
• Sunnyside v. Fernandez, 54 Wn.App. 578 (1990) (blood in the mouth is not a foreign substance…breath test admissible.)
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RETROGRADE EXTRAPOLATION
• State v. Mata, 13 S.W.3d 1 (1999) (case about absorption of alcohol)
• “Estimating the uncertainty associated with Widmark’s equation as commonly applied in forensic toxicology,” Forensic Science International 172: 33-39 (2007) (available online at www.sciencedirect.com
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BLOOD TESTS
• State v. Charley, 136 Wn. App. 58 (2006) (Because the test was conducted under the authority of Washington law by State agents, its results were not admissible as ‘other evidence’ of driving under the influence under RCW 46.61.502(1)(b) or (c).” Therefore, the trial court correctly suppressed sample A. Sample B, however, was taken and tested by the hospital for medical purposes. It was therefore admissible as “other evidence” of intoxication under RCW 46.61.502(1)(b).)
• State v. Shriner, 739 N.W.2d 432 (2007) (noncensual warrantless blood draw violates the 4th amendment in the absence of exigent circumstances)
• State v. Wilbur-Bobb, COA No. 55872-2-I (August 21, 2006) (Evidence was sufficient to admit blood alcohol tests where the technician testified that sodium fluoride is an enzyme poison, and a photograph of the labels on the defendant’s vials of blood showed that they contained sodium fluoride)
• State v. Bosio, 107 Wn.App. 462 (2001) (blood sample shall be preserved with anticoagulant and an enzyme poison. Failure to show evidence will make evidence inadmissible)
• State v. Donahue, 105 Wn.App. 67 (2001) (blood test from Oregon)
• City of Las Vegas v. Walsh, 124 P.3d 203 (2005) (Affidavits specified in statute governing admissibility of affidavit of a person who withdraws a sample of blood from another for chemical analysis are testimonial statements, and thus their admission, in lieu of live testimony, would violate Confrontation Clause)
• State v. Reier, 127 Wn.App 753 (2005)- (Court of Appeals overview of what is required for State to get blood test admitted; favorable to the State)
• Clark-Munoz, 152 Wn.2d 39, 49 (Blood tests must be performed according to statutes and WACs)
• State v. Bosio, 107 Wn.App. 462 (Blood test suppressed if no enzyme poison added to blood sample; upholds WAC 448-14-020(2))
• State v. Garrett, 80 Wn.App. 651 (1996) (Blood must be preserved with anticoagulant or results are suppressed; upholds WAC 448-14-020)
• State v. Barfield, 47 Wn.App. 444 (1988) (How State can prove vial met conditions required by WACs)
• City of Kent v. Beigh, 145 Wn.2d 33 (2001) (When officer may request a blood test)
• State v. Hultenschmidt, 125 Wn.App. 295, 266-67 (2005)
• State v. Babiker, 126 Wn.App. 664 (2005)
• State v. Reier, 127 Wn.App. 753 (2005)
• In re Richie, 127 Wn.App. 935 (2005)
• California v. Schmerber, 384 US 757 (1966) (police can obtain a blood test if they have probable cause that the driver is under the influence; however, 4th amendment forbids police from making such intrusions on the mere chance that desired evidence might be obtained)
• Duncan v. State, 799 N.E.2d 538 (2003) (suspect refused test police got warrant and blood test suppressed because no probable cause established for warrant)
• State v. Mee Hui Kim, 134 Wn.App. 27 (2006) (court properly denied motion to suppress blood and did not abuse discretion by excluding evidence of the date-rape-drug)
• State v. Rinard, 566 S.E.2d 652 (2003) (Officer’s failure to advise defendant that a warrant could be issued for his blood if refused to consent to the blood test did not violate due process)
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AFFECTED BY PRONG
• State v. Hansen, 15 Wash.App. 95, 546 P.2d 1242 (1976) (erratic or reckless driving is not required to prove “affected by”)
• State v. Wilhelm, 78 Wash.App. 188, 896 P.2d 105 (1995) (Defining “affected by”)
• State v. Hurd, 5 Wn.2d 308, 105 P.2d 59 (1940) (defines being under the influence and affected by as both meaning A any influence which lessens in any appreciable degree the ability of the accused to handle his automobile)
• State v. Hansen, 15 Wn. App. 95, 546 P.2d 1242 (1976) (Noted in WPIC 92.10)
• State v. Dunnivan, 65 Wn.App. 728 (1992)
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CORPUS DELICITI
• State v. Sjogren, 71 Wash.App. 779, 862 P.2d 612 (1993) (confession not enough for DUI corpus)
• State v. Hamrick, 19 Wn.App. 417 (1978) (the prosecution is unable to prove the required element of identification of the defendant as the driver because there is insufficient evidence of the corpus deliciti of the crime independent of the defendant’s statements)
• Bremerton v. Corbett, 106 Wn.2d 569 (1986)
• State v. Komoto, 40 Wash.App. 200, 697 P.2d 1025 (1985)
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DRE
• State v. Baity, 140 Wn.2d 1 (2000) (DRE evidence admissible under Frye test if qualified expert can use the 12 step protocol to relate an opinion about presence or absence of presence of drugs)
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PHYSICAL CONTROL
• Sengchanthong v. Commissioner of Motor Vehicles, 2007 WL 655455 (Conn.) (act of inserting key in ignition while in driver’s seat equates to physical control)
• State v. McGuire, 31 Wn.App. 438 (1982) (physical control is lesser included of DUI (driving + physical control = DUI))
• State v. Sjogren, 71 Wash.App. 779, 862 P.2d 612 (1993) (Corpus delicti of offense of driving while intoxicated cannot be established absent proof connecting specific and intoxicated person with operation or control of vehicle)
• Village of College Plains v. Haanstad, 709 N.W.2d 447 (2006) (Not operating if not touched any controls of the vehicle necessary to put it in motion while suspect was intoxicated)
• Montesano v. Wells, 79 Wn. App. 529, 533 (1995) (need vehicular motion for DUI)
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SAFELY OFF THE ROADWAY
• State v. Beck, 42 Wn.App. 12 (1985) (failure to instruct does not violate equal protection)
• City of Edmonds v. Ostby, 48 Wn.App. 867
• State v. Votava, 109 Wn.App. 529 (2001) (the fact that the defendant’s vehicle was moved by someone else precludes instruction)
• State v. Day, 96 Wn.2d 646 (1981) (drunk person no longer a threat when safely off the road)
• City of Tacoma v. Belasco, 114 Wn. App. 211 (2002) (Defendant is not required to drive while intoxicated before moving a car off the roadway in order to get a safely off the roadway instruction in a physical control prosecution)
• City of Spokane v. Beck, 130 Wash.App. 481 (defendant who was parked in a parking lot established being safely off the roadway)
• Suikosky v. Bvisebois, 49 Wn.App. 273 (1987) (parking zone was included in definition of roadway)
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REFUSALS
• South Dakota v. Neville, 459 US 553 (1983) (admission into evidence of a defendant’s refusal to submit a blood-alcohol test does not offend 5th Amendment rights)
• Woolman v. Dep’t of Licensing, 15 Wn.App. (1976) (defining what a refusal is “insufficient participation” to take the test”)
• Rockwell v. State, 94 Wn.App. 531 (1999) (“refusal is a question of fact”)
• State v. Kronich, 23427-4-III 2/07/06 (denial of suppression on refusal because access of access sufficient)
• State v. Parker, 16 Wn.App. 632 (1976)
• State v. Long, 113 Wn.2d 266 (1989)
• Seattle v. Personeus, 63 Wn.App. 461 (1991)
• State v. Cohen, 125 Wn.App. 220 (2004)
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REFUSAL OF SFST
• Seattle v. Salbroten, 138 Wn.2d 227 (1999) (footnote 2 how is refusal probative, breathtest shows conscious of guilty b/c lose license, but fsts are voluntary)
• State v. Jones, 273 Ga.App. 192 (2005) (refusal to submit to field sobriety tests admissible as circumstantial evidence of intoxication)
• State v. Slone, 133 Wn.App. 120 (2006) (officer's inadvertent violation of trial court's pretrial order to exclude testimony about field sobriety tests was a nonprejudicial, harmless error)
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CLOSING ARGUMENTS
• State v. Martin, 69 Wash.App. 686, 849 P.2d 1289 (1993) (Prosecutor's closing argument, that some persons, termed "condition drunks," may appear sober and blood alcohol content testing is necessary to establish their inebriation, but that defendant was visibly intoxicated so testing was unnecessary, was error in prosecution for driving while intoxicated; argument had no basis in record and no definition of "condition drunk," there was no blood alcohol content evidence, and there was no explanation of why there was no such evidence.)
• People v. Aguire, 2006 WL 3102321 (prosecutor’s improper and inflammatory closing argument denied defendant a fair trial 1: ethical obligation to proceed against only guilty defendants, 2) defendant had obligation to admit evidence, 3) comment on right to silence)
• State v. Ragland, 2006 WL 3788416 (prosecutor’s reference in closing to defendant’s failure to advise officer of her innocence constituted reversible error)
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DOUBLE JEOPARDY
• State v. Ivie, 136 Wash.2d 173, 961 P.2d 941 (1998) (For purposes of double jeopardy statute, offense of driving under influence, under state law, is identical to offense of drunken operation of vehicle, under military law; two offenses contain same elements and proscribe same behavior, driving motor vehicle while drunk or while blood alcohol content (BAC) is .10 or greater.)
• State v. Higley, 78 Wn.App. 172 (1995) (entering a deferred prosecution on DUI does not prevent the State from filing vehicular assault)
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SUFFICIENCY OF EVIDENCE FOR DUI CONVICTION
• State v. Jones, 614 S.E.2d 820 (2005) (evidence sufficient for conviction even though defendant did not take field sobriety tests)
• State v. Shaheed, 607 S.E.2d 897 (2004) (evidence insufficient for conviction because no staggering, no slurred speech, no unusual or erratic driving. Only evidence of intoxication was smell of intoxicants)
• Flanangan v. State, 832 N.E.2d 1139 (2005) (insufficient evidence for conviction of DUI—because gov’t not able to prove driving)
• City of Seattle v. Wakenight, 24 Wash.App. 48, 599 P.2d 5 (1979) (In view of evidence of breathalyzer and videotape recording of defendant performing various physical tests, error in admitting defendant's statement, obtained in violation of his Miranda rights, that he had consumed two to five beers on the evening in question was harmless beyond reasonable doubt in defendant's trial for driving while under the influence of alcohol)
• State v. Shabel, 95 Wash.App. 469, 976 P.2d 153 (1999) (Conviction for driving under the influence (DUI), based on operation of a vehicle in State while under influence of alcohol or drugs, was supported by reports of motorist's erratic driving, by police officer's observations that motorist was drinking from a beer can and smelled of alcohol before driving, and detection of odor of alcohol on motorist's breath, and motorist's intoxicated behavior when she was found soon after abandoning her automobile.)
• State v. Wilhelm, 78 Wn.App. 188, 193, 896 P.2d 105 (1995) (evidence can be circumstantial to uphold a conviction for DUI)
• State v. Randhawa, 133 Wn.2d 67, 74, 941 P.2d 661 (1997) (speeding, veered out of lane of travel)
• State v. Crediford, 130 Wn.2d 747, 756-57, 927 P.2d 1129 (1996) (blood level of intoxicants)
• State v. Lovelace, 77 Wn.App. 916, 920, 895 P.2d 10 (1995) (field sobriety tests)
• State v. Hettich, 70 Wn.App. 586, 592, 854 P.2d 1112 (1993) (tox opinion based on BAC of .14)
• State v. Cole, 2005 WL 1364932 (unpublished) (evidence not sufficient for DUI conviction)
• State v. Hansen¸ 15 Wn.App. 95, 96, 546 P.2d 1242 (1976) (must have some evidence of impairment to support conviction)
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SENTENCING
• City of Spokane v. Wilcox, COA No. 24030-4-III (March 20, 2008) (The administrative suspension of a driver's license for a driving under the influence (DUI) conviction is not punishment. Accordingly, Blakely v. Washington does not entitle the driver to a jury determination of refusal)
• State v. Hoover, 878 N.E.2d 1116 (2007) (Ohio case, refusal to submit to breath test, as required by implied consent law, is an exercise of a constitutional right to refuse and cannot serve as the basis for an increased sentence)
• City of Seattle v. Quesada, COA No. 58336-1-I (Dec. 3, 2007) and City of Seattle v. Winebrenner, COA No. 58710-2-I (Dec. 3, 2007). (Second or Subsequent DUI. For purposes of RCW 46.61.5055, a "prior offenses" occurring "within seven years" of the defendant's arrest for the current offense includes the period both before and after the arrest for the current offense. When a deferred prosecution is revoked, the deferred prosecution does not count as a "prior offense" when imposing sentence.)
• City of Walla Walla v. Greene, 75108-1 (2005) (Neg 1 amended from DUI can count as prior offense)
• Inouye v. Kemna, 06-15474 (9th Cir. Sept. 7, 2007) (Requiring a parolee to attend religion-based treatment programs, which include AA and NA, violates the First Amendment. To avoid a constitutional violation, the parolee must be offered a choice of programs. A parole who is compelled to participate in AA or NA may bring a 42 U.S.C. § 19833 lawsuit against the parole officer)
• Under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), any fact other than a prior conviction that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In this DUI prosecution, the court imposed a year-long driver license suspension based on the court’s finding of an alcohol concentration of more than .15. The court reasons that first, the license revocation was a criminal sanction imposed as result of the conviction and second, the only pertinent fact found by the jury was that Hopkins alcohol concentration was at least .08, and that the graduated license revocation periods have the effect of defining different degrees of the crime of DUI. The remedy was to remand for reduction to a 90 day license revocation. State v. Hopkins, 109 Wn. App. 558 (2001).
• City of Bremerton V. Tucker, 126 Wn. App. 26 (2005) (Former RCW 46.61.5055(11)(a)(vii) which provides that a prior deferred prosecution enhances sentence for a succeeding DWI conviction does not violate due process)
• State v. Preuett, 116 Wn. App. 746 (2003) (A Prior offense includes a prior completed deferred prosecution, which does not wash out. No due process or ex post facto argument arises from fact that enhancement was enacted after completion of prior deferred prosecution)
• Wahleithner v. Thompson, COA No. 57101-0-I (September 18, 2006) (Imposition of a sentence of 44 months in jail upon a criminal defendant who failed to comply with conditions of five suspended sentences, including three for drunken driving does not constitute cruel or unusual punishment under the state constitution)
• State v. Suleiman, No. 76807-2 (2006) (stipulating to PC statement cannot be used for an exceptional sentence. Violates Blakely)
• State v. Thomas, 155 P.3d 998 (2007) (restitution ordered even though defendant not guilty on vehicular assault for passenger injuries)
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LESSER INCLUDED
• Bellevue v. Redlack, 40 Wn.App. 689 (1985) (In order to establish offense of DWI, it is not necessary to show negligent and dangerous driving. Neg. 1 is contains different elements and is not a lesser included of DUI)
• State v. Culp, 30 Wash.App. 879, 639 P.2d 766 (1982) (Driving while intoxicated is lesser included offense of negligent homicide committed while driving in intoxicated state, negligent driving is lesser included offense of reckless operation of vehicle and negligent operation of vehicle is lesser included offense of driving in disregard of safety of others; thus defendant was placed in jeopardy of lesser included offense in each possible method of committing negligent homicide when charged with negligent driving and with driving while intoxicated following fatal automobile accident and, upon conviction of failure to use due care and deferral of disposition of driving while intoxicated charge, defendant could not properly be prosecuted for negligent homicide.)
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GENERAL
• State v. Sharkey, 2007 WL 2011426 (N.H) (failure to advise defendant as to the effect of DUI conviction on out of state driver’s license may constitute ineffective assistance of counsel)
• Butler v. Kato, No. 06-2-19387-3 (March 11, 2007) (pre-trial alcohol evaluations and Aas are not permitted by CrRLJ 3.2)
• Leocal v. Ashcroft, 543 US 1 (2004) (DUI not crime of violence nor moral turp.)
• State v. Johnson, 90 Wn. App. 54, 69 (1998) (The right to cross-examine, and the right to impeach, is guaranteed by the constitutional right to confront witnesses)
• State v. Smith, 130 Wn.2d 215, 227 (1996) (Thus, defendant should be given great latitude in the cross-examination of a prosecution witness to show motive or credibility. This is especially true where a case stands or falls on the jury’s belief or disbelief of essentially one witness)
• State v. Peterson, 2 Wn. App. 464, 469 P.2d 980 (1970) (court abused discretion in limiting cross examination in DWI case
• Seattle v. Williams, 128 Wn.2d [ ] (1995) (City could not enforce its own .08 standard)
• DOL v. Lewis, 157 Wash.2d 446 (2006) (RCW 9.73.090 requires police officers to inform drivers during a traffic stop that they are being records if the officer makes a sound recording)
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COLLATERAL ESTOPPEL
• State v. Vasquez, 148 Wash.2d 303, 59 P.3d 648 (2002) (probable cause determination in administrative license revocation hearing did not bar relitigation of issue in criminal prosecution)
• Gumma v. White, 345 Ill.App.3d 610, 803 N.E.2d 130 (2003) (Trial court’s ruling that breath test results were inadmissible in criminal trial precluded admission of breath test in admin hearing)
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HEARSAY
• State v. Kent, 2007 WL 845874 (blood draw certification in absence of nurse who drew blood violates confrontation clause)
• State v. Sickman, 2006 WL 3593042 (admitting certificate regarding blood draw violate confrontation clause without producing hospital nurse)
• State v. Douglas, 131 S.W.3d 818 (2004) (Testimony from dispatch inadmissible hearsay)
• Commonwealth v. Walther, 189 S.W.3d 570 (2006) (Admission of breath test machine’s maintenance record did not violate Crawford)
• Fischer v. State, 2006 WL 3072047 (officer’s contemporaneous narration of events occurring during traffic stop is not present sense impression)
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JURY ISSUES
• State v. Golie, 134 P.3d 95 (2006) (held that the trial court abused its discretion when it denied defendant's challenge of prospective juror for cause)
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VEHICULAR HOMICIDE
• People. v. Rideout, 2006 WL 3069271 (defendant was not proximate cause of death where victim was not injured in accident with the defendant, but was killed by another motorist when he went back to his car to turn on the emergency flashers)
• People v. Tackett, 2006 WL 3071374 (Passenger’s prior bad acts inadmissible where defendant was attempting to argue that the passenger was the driver) |
