IMPAIRED DRIVING UPDATE

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1 IMPAIRED DRIVING UPDATE Washington Traffic Safety Resource Prosecutors Issue 12 Nov 2013 Inside WA s New DUI Law: The Good, the Bad and the Unclear As of September 28, 2013, Washington has adopted a new DUI law, and with it, new DUI forms. Officers have faced the daunting task of retraining themselves to use the new forms, while prosecutors across the state differ on interpretation and implementation of the new facets of the law. These uncertainties will likely be resolved in the next year through various litigations and policy choices. Until then, the best strategy is to work closely and fluidly with your local prosecuting authority or law enforcement agency. The process has been understandably frustrating for everyone. Changes are inevitable, and we will strive to keep prosecutors, law enforcement, judges and stakeholders apprised of new developments as they are encountered across the state. THIS ISSUE New DUI Law Pg. 1 DUI Law Overview Pg. 2/3 Frequently Asked Questions Post-McNeely DUI Law Pg. 4/5 TSRP Shout Out Pg. 6 New HGN ruling Pg. 6 Trial Notebook Essentials Pg. 6 Training Announcements Pg. 7 NOTE: The DOL notice portion of the form has been revised by DOL and will be distributed to every BAC location as a separate, single tear off sheet in the coming weeks. A basic summary of the new law and general DUI processing information is attached as pages 2/3 of this newsletter.

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4 FREQUENTLY ASKED QUESTIONS As the preceding chart indicates, there are still a number of questions to be resolved with regard to the new DUI packet and to the new DUI law. Local prosecutors are no doubt communicating with local law enforcement (hint, hint) about preferred strategies, and addressing issues that are popping up with regard to mandatory booking, voluntary consent, and what warnings are to be read in which circumstance. Although there are some differences of opinion, below are suggestions on some of the most commonly asked issues: What is the preferred method of obtaining a blood sample? In any case, misdemeanor or felony, in which an officer wants to obtain a blood sample from a driver, the most secure way to do that is to obtain a search warrant from a judge. That is not to say that justifying a warrantless blood draw due to carefully articulated exigent circumstances, or obtaining a suspect s voluntary consent, are not legally valid methods. It merely underscores the security of a blood sample obtained following a judge s verification that probable cause for the crime of arrest existed and justifies the drawing of the blood. The biggest issue surrounding voluntary consent (aside from whether your prosecutor wants officers to use the voluntary consent form on misdemeanor cases) is the suspect s ability to revoke that consent at any point in the process. Imagine that the officer makes it all the way to the hospital, and has a phlebotomist primed for the blood draw. If the suspect chooses that moment to revoke his consent, the officer will have to return to the police department or other computer to now draft a search warrant and then attempt to reach a judge. Those likely delays make the time put in up front in applying for the warrant seem more reasonable. Our jurisdiction is having difficulty reaching a judge when we need to obtain a search warrant what do we do? The first step is to figure out how to obtain your blood sample for the case at hand. If you are dealing with a felony case (vehicular homicide, vehicular assault, felony DUI) or a misdemeanor case with an unconscious suspect or a case where a crash has seriously injured another person, and you have attempted the call multiple times, and/or called multiple judges, with no success, you may have sufficiently exigent circumstances to justify a warrantless blood draw. Thoroughly document the times and details of any attempted calls in your narrative. Note: there is no misdemeanor exception for exigent circumstances. The next step will occur once normal business hours have resumed. Report any difficulty reaching a judge for a search warrant to your command staff, and ensure that the local prosecutor is informed. Many times, working together with the prosecutor and judge(s), these issues can be resolved in a way that streamlines the process for all involved. Local jurisdictions are beginning to formalize electronic search warrant procedures, including revising local court rules to expressly permit electronic signatures to be used on search warrants, and/or combining telephone calls (for contacting the judge, and recording oaths and warrant approval) with transmission of paperwork. A statewide electronic warrant system proposal is being developed through the generous commitment of funds and resources by the WA Traffic Safety Commission stay tuned!

5 There is a typo in my search warrant template.is it invalid? No. Although we strive for accuracy in search warrant documents (and everything we do!), the overall content of a search warrant is far more important than any individual line or citation. Furthermore, a typical DUI blood search warrant affidavit typically does not require writing 4 pages of narrative. Its primary purpose is to establish probable cause for the crime of arrest, and express to the judge why the officer is justified in securing further evidence of that crime. A thorough summary of the facts indicating impairment and justification for the crime of arrest is all that is legally necessary to form the meat of a search warrant affidavit. Provide the reviewing judge with as much relevant detail of the stop, contact and circumstances leading up to the warrant. Also, note: in some situations, the blood warrant template and/or DUI packet forms will not line up exactly with a checkbox for your particular circumstance. If needed, write in any clarifying information. What warnings are read in which circumstance? Breath-only misdemeanor DUI: Implied Consent warnings (Still the same, but no longer mention blood) Blood obtained via search warrant: General advice is to read Special Evidence warnings in packet for felony cases or misdemeanor with unconscious suspect or crash with serious injury to another. May read for blood obtained via search warrant in a misdemeanor case, if directed by your local prosecutor. (Note: if read in a misdemeanor case, the officer can simply write in DUI or physical control beneath the current checkboxes). o WHY? Short Answer: These warnings advise the subject of his right to an independent test. Blood obtained via voluntary consent: Read the Voluntary Consent form in the DUI packet. Do NOT read the special evidence warnings. Why do we no longer punch the driver s license of an individual arrested for DUI? The legislature determined the practice of punching licenses was causing unforeseen hardship to holders of punched licenses, who were allegedly being denied consideration of their punched licenses as valid identification. How do we handle mandatory booking for repeat offenders? The legislature added DUI/Physical Control offenders with prior offenses to the list of crimes requiring mandatory booking. This is the same section currently used to support mandatory booking on domestic violence arrests. Prior convictions are eligible if committed within 10 years, for crimes listed in RCW (the same list as you would use to determine whether an arrestee meets the criteria for a felony DUI). The legislature sought to recognize the danger associated with repeat offenders, and ensure community safety by requiring repeat offenders be ordered to provide proof of installation of an ignition interlock device. Judges, prosecutors and sheriff s/jailers are currently implementing booking strategies to properly address the need for the mandatory conditions of release to be set (newly revised by the legislature with this year s DUI bill to include the proof of IID installation requirement). The law enforcement obligation is to arrest and verify criminal history so as to have a reasonable belief that the arrestee is a repeat offender as defined by the statute. The courts, prosecutors and jail are responsible for implementing correct bail procedures and the setting of release conditions.

6 NEW HGN RULING FROM DIVISION III State v. Quaale, COA No III (Nov. 7, 2013) Def. was arrested and charged with Eluding and Felony DUI in August After bad driving before and during the Elude, Def. is stopped and contacted by a Trooper (and certified DRE). Def. smelled of alcohol, performed poorly on the HGN test (the only SFST performed), and ultimately refused the BAC. According to Div. III s opinion, the question asked in relation to HGN was, "In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not Mr. Quaale's ability to operate a motor vehicle was impaired?" Defense timely objected stating that the Trooper was offering his opinion as to the ultimate question of guilt. The objection was overruled, and the Trooper responded, Absolutely. There was no doubt he was impaired. The COA held that the Def s right to a fair trial was violated by the improper opinion testimony offered by the Trooper, which they found overstated the exactness of HGN results, violating limitations on HGN testimony set out in State v. Baity, 140 Wn.2d 1 (2000). The State attempted to distinguish the testimony stating that it did not violate Baity and the Trooper s opinion did not attempt to correlate HGN to a specific BAC level. The nature of the specific question, extracting only the performance on HGN, without regard for the other signs of impairment evident in the facts, as the basis for the Trooper s opinion on an ultimate issue of guilt, may have proven more problematic here than the greater issue of whether an officer may testify that the HGN test is indicative of the presence of alcohol and an indicator of impairment (but not a specific level). It remains to be seen whether Spokane County will appeal this case for clarification. Special thanks to the class of TSRP Fellows. This amazing group of dedicated and experienced DUI prosecutors presented a combined 77 training hours for over 515 students statewide! TSRP Fellows Amy Freedheim, King County Jeff Torrey, City of Bellevue Jody Newby, Cowlitz County Luka Vitasovich, Clark County Margie Alumbaugh, Kittitas County Mary Muramatsu, City of Spokane Miriam Norman, Jefferson County Rachel Cormier-Anderson, City of Seattle Rea Culwell, Columbia County Stephanie Olsen, Spokane County Tim Jones, Pierce County Wendy Winfield, City of Yakima TRIAL NOTEBOOK ESSENTIALS Organization in the courtroom is more than just a convenience. A jury will perceive an organized lawyer to be more knowledgeable and authoritative. Knowing that you have all of the necessary documents and resources (ex - an objections tip sheet, witness statement outlines, sample voir dire questions, trial scripts, etc.) at your fingertips, can foster a sense of ease when you answer to the judge that the State is ready to proceed. Pulling a prewritten pocket brief on a commonly raised motion issue from a tab in your trial notebook can make the difference between full-blown panic in front of your judge and/or jury, and achieving a ruling in the State s favor without breaking a sweat. Check out the excellent article and top 10 list authored by attorney Douglas Pierce in the November issue of NWLawyer.

7 UPCOMING TRAINING OPPORTUNITIES Exact dates, locations and sign-ups will be announced in future issues of the TSRP newsletter and on the TSRP website ( Prosecuting the Drugged Driver/DRE Pre-School for Prosecutors March 2014 Western WA; September 2014 Eastern WA Impaired Driving Training Symposium First week of May 2014 Tulalip Resort, Marysville DUI Prosecutor Boot Camp for County and City Prosecutors CJTC June 2014 If your department or office would like to host an impaired driving-related training, please contact the TSRPs directly. Our services are available for all law enforcement agencies, prosecutors, judges and traffic safety stakeholder groups. For Training Requests or Technical Assistance on Impaired Driving Issues, please contact the TSRPs: Courtney Popp X24134 Moses Garcia X24117 Eastern WA Target Zero Prosecutor Stephanie Olsen The Traffic Safety Resource Program is funded by the Washington Traffic Safety Commission, with funds from the National Highway Traffic Safety Administration. Any opinions expressed here are those of the author and not those of WSP, WTSC, or NHTSA. Traffic Safety Resource Prosecutors Washington State Patrol 811 E Roanoke St Seattle, WA Ph: Fax: tsrp@duiprosecutor.com