Overzealous prosecutors v. ethical prosecutors...

As a defense attorney I frequently encounter eager, ready to prove themselves and sometimes arrogant (without any substance or experience to back it up) prosecutors who will do anything to get a conviction.  Today I wanted to comment about a case I had in Seattle Municipal Court and a prosecutor I respect who did the right thing.

It was about a case involving a client who had made the decision not to drive and to sleep off his overindulgence of several beers after a day of finals at a local university.  Suffice it to say, when the security found him slumped over his vehicle's steering wheel, passed out drunk, they were a bit concerned and called the police.  The police showed up, found my client (at this time outside his vehicle) in an extremely intoxicated state.  He was arrested for what is called Physical Control of a motor vehicle while intoxicated (basically drunk behind the wheel but no witness to driving).  He was not very cooperative because of his intoxicated state and ultimately blew very high on the Datamaster (well over the .08 per se level).

Once I interviewed my client I was a bit vexed as to why the case was filed because as any seasoned DUI attorney will tell you, an affirmative defense to Physical Control is that if you have driven your vehicle safely off the roadway prior to being pursued by law enforcement, you cannot be found guilty of the offense.  Well, in my opinion, you cannot better meet this defense than the position in which my client found himself.  I genuinely believe he had no intent of driving and was just "sleeping it off" until he was able to get a sober driver to pick him up.

The City filed the charge nevertheless based upon the security officer's observations coupled with the officer and some alleged statements my client made to the arresting officer.  Once I got the case I knew I had some work to do.  I contacted the originally assigned prosecutor who then turned it over to his supervisor, a gentlemen I truly respect (I also respect the original prosecutor highly as well).  I informed him of the situation, the case law and our position of the legislature's intent regarding the affirmative defense.  At first I met with some resistance, understandably because of the higher breath sample, but after some negotiations my client's case was dismissed due to his proactive measures (that is, because he never intended to drive).

Now the moral of the story is that an experienced prosecuting attorney evaluated the case and deemed the defense to be an accurate representation of the legislature's intent.  Conversely, as I previously blogged about, a younger less-experienced prosecuting attorney pushed a case to trial (on which I ultimately garnered a not guilty verdict for my client) which should also have been dismissed on the merits.  This is the difference between an unethical, immoral, unseasoned, unreasonable prosecuting supervisor and an ethical, respectful one.  It really comes down to the merits of the case and the government's responsibility to do what is right, not seek a conviction at all costs.  I love my job when I can deal with prosecutors such as the one I dealt with at the City of Seattle.  It was the right call and we appreciate it and now my client doesn't have an unwarranted criminal history.

If you have been arrested for a DUI in Seattle or anywhere in Washington State, give me a call (425) 398-4323.  This is what I do and can help you!

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.

Should I take a field sobriety test (FSTs) if pulled over?

Field Sobriety Tests (aka Standardized Field Sobriety Tests).

I'm always asked whether someone should (or more commonly should have) take field sobriety tests when asked.  My common answer is no!  Now, I have heard of one instance wherein a friend of mine told me he took them (against my advice) and was let go.  That result is an anomaly in my experience.  If you have had anything to drink, or smoked marijuana recently, I would advise you skip these tests.  Why?  Well, the way in which these tests are administered are much different than how they were "standardized."  What I mean by that is the National Highway Traffic Safety Administration (NHTSA) conducted three tests (Horizontal Gaze Nystagmus, One Leg Stand and Walk and Turn) to determine the accuracy of predicting a BAC result based upon the clues observed and reached conclusions with percentages related to accuracy (the officers administered these tests on people who had been drinking, observed the clues, guessed what their BAC would be ultimately and whether they would have arrested the subject - of course these were volunteers at the study locations).  After calculating their results they standardized these three tests, meaning that if all three are administered correctly and the individual exhibits a number of clues, there is a high percentage they would submit a BAC reading above the legal limit (0.08).

Seem legit?  Well no...why you say?  Take for example the subjects who participated in this "standardization."  They were a group of family and friends and co-workers who were dosed with specific amounts of alcohol and asked to take these tests.  The tests were conducted without fear of arrest, so you can take out the anxiousness and nervousness, who were of relatively good health and average age.  So officers did not conduct these on older individuals or those suffering from any physical limitations.  Troopers often testify when they were conducting tests on individuals with physical limitations (i.e., knee injury, etc.), "oh I took into consideration their limitations."  Really, how?  Were they ever trained how to "take the limitation into consideration?"  NO!  Also, consider that the standardization took place in a controlled environment, meaning not on the side of the road, in the cold or rain with cars whizzing by at 70 mph.  How could these tests accurately represent a standardized result?  Simple, they can't and don't.  So when a trooper records clues from these tests, those clues themselves are skewed because the conditions of administration are vastly different than how they were trained. Keep in mind that this is how troopers are currently trained to administer these tests, typically in a high school gym, in controlled temperatures, with no distractions, administered on individuals who volunteered and are not subject to arrest. How standardized is that?  Ha!  Why would anyone want to participate in these feats of balance given the training?

My advice, simply politely decline, inform the trooper you are not impaired but that you have been advised not to participate in them.  Then, if arrested, ask to speak with an attorney at the earliest opportunity.

If you have been arrested for a DUI in Seattle or anywhere in Washington State, give me a call (425) 398-4323.  This is what I do and can help you!

 ___________________________________________________________________

About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.

Are Field Sobriety Tests a search? Yes!

No court in the state of Washington has concluded Field Sobriety Tests (FSTs) are a search, conversely no court has held they are not a search.  Confusing?  You betcha and this issue is argued all the time across courts in Washington.  

Here is my take:  FSTs are a search of an individual subject to an exception of the warrant requirement under the 4th Amendment of the United States Constitution.  Why?

1.     Courts have held that a person does not have any requirement to submit to these requests to participate in FSTs.  Looking at that conclusion from a common sense perspective leads me to believe (as I often argue) that FSTs are in fact a search which would be subject to a warrant, absent consent of the individual or another exception (not exigent circumstances however as I believe Missouri v. McNeely and the Gauthier decision have clearly knocked that argument on its face).  

2.     In Washington State, Article I Section 7 of our State Constitution affords individuals greater protection to be free from unreasonable searches than that of the 4th Amendment to the US Constitution.  Now, since courts have upheld that a person has a right to refuse these tests (City of Seattle v. Personeus and City of Seattle v. Stalsbroten for example) then that infers the officer/trooper/deputy does not have any right, as they might under what is called a Terry stop (see, Terry v. Ohio), to stop and frisk and individual based upon the officer's belief that weapons or contraband might be present.  However, that Terry stop doesn't afford the officer the opportunity to further search them absent an exception to the warrant requirement.  

I recently had a prosecutor argue to the court that the exigency exception (immediate disposal, destruction or dissipation of evidence) allows for the refusal of FSTs to be presented as evidence of a guilty conscious.  That argument is laughable.  In that scenario what the prosecutor is telling the court is this, "judge, since officers can't get someone to consent to a search via FSTs, they should be allowed to just make them do it under this exception!"  Can you imagine an officer forcibly pushing you up and down a line to do a walk and turn test or holding out your leg to do the one leg stand or worse, forcing your eyes to move on a horizontal plane for the horizontal gaze nystagmus test.  It is comical to think prosecutors really present this argument to judges, but I have seen it time and again and it is just dead wrong!  No court has ever held officers have a right to force someone to participate in FSTs.  Therefore, viola! FSTs are a search requiring consent.  Now I have already blogged about whether a Refusal to participate in these FSTs can be used against you and in that instance a judge at the King County District Court held, correctly, they could not.  Why all judges can't see this common sense approach is beyond me, but I will continue to argue it.

The plain and simple truth is, if you have had anything to drink, in my opinion, you are better off not participating in FSTs!  

 ___________________________________________________________________

About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.