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A Prosecutor’s Perspective On Traffic Cases Kitsap County Chief DPA Jeffrey J. Jahns.

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1 A Prosecutor’s Perspective On Traffic Cases Kitsap County Chief DPA Jeffrey J. Jahns

2 Topic 1 SFST & FST Admissibility

3 n Kitsap County District Court ruled en banc on April 25, 2007 that… F (1) SFSTs and FSTs are admissible in prosecutor’s case, F (2) Defense may cross examine officer concerning any discrepancies from training manual(s) in how officer administered a test, and F (3) The jury will decide what weight to give the officer’s opinion of the defendant’s SFST and FST performance, and the impact of any training manual discrepancies in administration of the tests n State v. Shines, et al., Kitsap County District Court No. 16802901… F 12 consolidated DUI defendants F Port Orchard v. Jason Bricks, No. 11408403, pending F Motion to suppress SFSTs and FSTs will be coming to your court! Kitsap Defense Challenge to SFST and FST Admissibility

4 F All four Kitsap District Court judges attended hearing F Hearing conducted March 19-22, 2007 F Prosecutor briefing-160 pages plus attachments F Defense briefing-110 pages plus attachments F Prosecutor paid for court reporter and 554 page transcript F Previous testimony by officer F Defense witnesses… –Dr. Joseph Citron, MD, Ophthalmologist and NHTSA SFST instructor, Georgia –Michael Hlastala, PhD, UW professor of physiology/biophysics –Robert La Pier, former Idaho police officer, NHTSA SFST instructor F Hundreds of pages of exhibits Kitsap En Banc Hearing

5 n Washington DUI defense bar very organized… F Washington DUI laws are tough! F Perhaps only capital punishment defense bar more organized n For over a decade, DUI defense has focused on trying to suppress breath test results n RCW 46.61.506(4) amended June 10, 2004… F Statute greatly streamlined breath test admissibility requirements F Fircrest v. Jensen, 158 Wn.2d 384 (Oct. 5, 2006). Supreme Court approved constitutionality of RCW 46.61.506(4). Huge win! F Breath test results are coming into evidence! n Since breath tests are finally admissible, defense forced to actually start trying DUI cases… F Defense recognizes SFSTs and FSTs hurt defendant’s chances F So, better challenge the evidence and try to keep it from juries Why Challenge SFSTs & FSTs?

6 n NHTSA DWI Detection and Standardized Field Sobriety Testing Student Manual… F Session (Chapter) VIII-Concepts and Principles of the Standardized Field Sobriety Tests F Very specific procedures… –HGN pages VIII-6 through VIII-8 –Walk and Turn pages VIII-9 through 11 –One Leg Stand pages VIII-12 through 14 n Defense argues that any deviation from manual compromises test’s scientific validity, and… F Concludes that test must not be admitted into evidence What Is This All About-101 Level?


8 n The Defense equates scientific validity with admissibility n But what exactly did NHTSA validate? F Mid-1970s, NHTSA determined that way too many over.10 BAC drivers were being let go by officers F Why? Conditioned drinkers could perform relatively well on psychomotor skill tests. F NHTSA concluded that officers needed some way to reliably predict BAC level based upon field tests F So, in 1977 NHTSA looked at 16 FSTs towards the goal of developing a battery of tests to predict BACs F 16 way too many, so NHTSA reduced the number to 6, and eventually to 3…HGN, WAT, OLS What Does Page VIII-19 Mean?

9 n The scientific method demands creating a hypothesis, conducting a series of experiments to test the hypothesis (all conducted in the same manner), and then analyzing the results… F Obviously, the 3 chosen SFSTs would have to be conducted in the same manner to test the officer’s ability to predict.10 or higher BAC levels F NHTSA developed a standardized protocol for administering SFSTs so that they could be scientifically studied F Many studies done over the next decade F Results clear…Officers had high degree of accuracy in making roadside decisions to arrest or release subject based upon SFST performance F In practice, many more over BAC limit suspects are arrested The Scientific Method

10 n Defense witness Michael Hlastala helped the prosecution… F Hlastala examined the NHTSA 1998 California study F Using the 1998 data, Hlastala concluded that SFSTs were 100% accurate at predicting 0.08 or higher BAC levels when the reading was 0.12 or higher F Hlastala also concluded that SFSTs were much less accurate when predicting BACs below 0.12… –However, Hlastala admitted that the 1998 study relied solely on the BAC level obtained some time after driving and did not use retrograde extrapolation, nor did the study consider a suspect’s use of drugs or BAC refusal SFSTs Are Really Accurate Predictors of 0.12+ BACs

11 n NHTSA has successfully shown that SFSTs are scientifically valid in predicting over limit BAC levels, but… F All NHTSA studies use the word “impairment” to mean over limit BAC levels. –Two ways to prove alcohol DUI in Washington… Alcohol concentration.08 or more within 2 hours of driving, OR At the time of driving, suspect was under the influence of or affected by intoxicating liquor –NHTSA did not study FSTs and whether a suspect was under the influence, i.e. whether the suspect’s “ability to drive a motor vehicle is lessened in any appreciable degree” Defense witness Michael Hlastala testified on cross examination that it would be virtually impossible to develop a standardized methodology to scientifically test such an imprecise standard But Be Careful With Science

12 n NHTSA validated the use of SFSTs in assisting officers in determining probable cause to arrest for over limit BACs… F NHTSA did not study the use of SFSTs, or any other FST, in determining whether the suspect was under the influence beyond a reasonable doubt F NHTSA did not study the impact of deviation from its SFST administration protocol… –E.g. 8 steps instead of 9 on walk and turn, or –Stimulus 16 inches instead of 12 to 15 inches on HGN, or –Telling the subject to raise foot 5 inches instead of six, or to point toe instead of keeping the foot parallel to the ground on the one leg stand What Was Really Validated?

13 n The prosecution is not required to “prove” the scientific validity of its evidence… F Defense confuses the reason for NHTSA’s scientific studies to establish probable cause to arrest with the evidence rules F The prosecution is not trying to admit SFST evidence to “prove” the defendant had an alcohol concentration of 0.08 or higher –Case law clearly would not permit such testimony/prediction. Only a breath test result obtained from a DataMaster or DataMaster CDM is admissible in Washington. F The prosecution is seeking to admit SFST evidence to prove the defendant was under the influence beyond a reasonable doubt… –A defendant’s physical condition is a critical element of DUI, including FSTs, other tests, observations, odor, balance, driving, etc. State v. Donohue, 105 Wn.App. 67 (Div. 2 2001). SFST Deviation Goes To Weight, Not Admissibility

14 n The Preface to NHTSA’s Student Manual says… “The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e. the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.” NHTSA Recognized That SFST Deviation Will Occur

15 n If the NHTSA Student Manual, Session VIII, is followed, SFST evidence is admissible n If an officer deviates from the Student Manual when administering SFSTs… F The SFSTs are still admissible, but… –The defense may force a 3 day hearing with hundreds of pages of prosecutor briefing necessary –The defense will cross examine the officer about the deviations, forcing the prosecutor to try to convince the jury that the officer’s opinion of intoxication based on the improperly administered SFSTs is still valid –The more deviation, the worse it will be for the officer and the less likely a defendant will be convicted of DUI… The defense will argue…“Had the officer bothered to follow the training manual, my client might well have passed the test. That is a reasonable doubt, ladies and gentleman. We will never know because the officer did not do it right.” The Bottom Line On WAT & OLS

16 n Unlike the WAT and OLS where anyone can observe a defendant’s performance and conclude sober or intoxicated, HGN requires specialized knowledge, training and experience to interpret… F Lack of smooth pursuit F Distinct and sustained nystagmus at maximum deviation, and F Onset of nystagmus prior to 45 degrees n Courts will remain reluctant to admit HGN evidence when an officer deviates from the NHTSA Student Manual… F HGN is scientific evidence, so an officer needs to administer the test in accordance with NHTSA scientifically validated protocols The Bottom Line On HGN

17 n NHTSA does not “certify” or “approve” SFSTs… F Training is done by law enforcement agencies. Officer may get a certificate showing a class was attended, but NHTSA does not “certify” anything. n FSTs show sobriety, and officer should testify that FSTs have been used to release a sober driver… F Officer should include this fact in the officer’s narrative report More Thoughts About FSTs

18 n Officers should administer more than just SFSTs… F SFSTs were created to develop PC to arrest for over limit BACs. F All FSTs, including SFSTs, are persuasive evidence towards showing beyond a reasonable doubt that the suspect was under the influence n Why limit the evidence to SFSTs? F Officer should administer the alphabet, balance, finger dexterity and finger to nose supplemental tests on the WSP DUI Arrest Report Sobriety Tests at page 5 F Especially the alphabet. It is very difficult for the defense to explain the poor results (especially if the officer asks about the defendant’s education). F An officer’s job is to gather evidence. Limiting the “gathering” to SFSTs is a mistake… –The defense will surely ask the officer why these other tests were not performed, and ask the officer whether it is possible the defendant could have passed the unperformed tests SFSTs Are Not Enough!

19 n Case law permits an officer to testify that based upon the officer’s training, experience, and observations, including a defendant’s SFST and FST performance,… F “The defendant was obviously intoxicated.” F “The defendant could not drive a vehicle in a safe manner.” F “The defendant had too much to drink to drive, and was under the influence.” F “I felt the defendant was obviously intoxicated.” F See State v. Heatley, 70 Wn.App. 573 (Div. 1 1993), and State v. Lewellyn, 78 Wn.App. 788 (Div. 3 1995). n Officer should include such statements in the officer’s narrative report when applicable “Obviously Intoxicated”

20 Topic 2 A Traffic Stop Primer 2007

21 n Co-author Pamela Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys n A 48-page “cheat sheet” of traffic stop law… F Terry detentions F Custodial warrantless arrests F Warrantless searches incident to lawful custodial arrest F Plain view warrantless searches F Open view warrantless searches F Impound and inventory warrantless searches F Mendez passenger control checklist F Terry stop and search checklist A Traffic Stop Primer August 2007

22 n Officers only need Terry reasonable suspicion, not probable cause, to stop a vehicle in order to investigate whether a driver committed a traffic infraction or other traffic offense… F State v. Duncan, 146 Wn.2d 166 (2002) F Older cases often cited by defense saying probable cause is required do not survive Duncan n Why does this matter? F Prosecutors do not need to prove the infraction occurred to justify the stop F E.g. For a radar speed stop ending up in a DUI charge, prosecutors do not need radar certificate/testimony to prove speeding infraction occurred, only that officer relied on radar and had a reasonable suspicion based upon training/experience that speeding occurred. F Officers do need PC, however, to issue a traffic infraction. –State v. Cole, 73 Wn.App. 844 (Div. 3 1994) Terry Traffic Infraction Stop – PC Is Not Required To Stop

23 n A vehicle may be sopped if a windshield is cracked and is in such an unsafe condition as to endanger any person… F State v. Wayman-Burks, 114 Wn.App. 109 (Div. 3 2002) n But, to justify the stop, officer better carefully document why the cracked windshield is so unsafe as to endanger someone Cracked Windshield

24 n A vehicle may be stopped when an officer recognizes the driver as someone whose license is suspended… F State v. Marcum, 116 Wn.App. 526 (Div. 3 2003) (4 day old information that driver’s license was suspended based on previous stop of defendant sufficient basis to subsequently stop driver) F 4 days based on previous stop OK. How about 7? 30? Tough to predict. F Must document previous contact, and document that officer recognized the driver (not only vehicle) n Contact DOL for current license status before stop and avoid entire issue Recognize Suspended Driver

25 n A Terry stop may not be made of a vehicle that weaves within the driver’s lane of travel unless… F The weaving is observed over a lengthy period of time and occurs repeatedly, or F The officer identifies some additional conduct associated with drunk drivers based on training and experience n No direct Washington cases… F Other state/federal cases put a high burden on the officer to explain reason for stop F Without more, weaving within lane is not a traffic offense Weaving Within Lane

26 n A Terry stop may not be made of a vehicle that crosses the fog line or center line unless.. F The crossing is pronounced, and F Is observed over a lengthy period of time, and F Occurs repeatedly n No direct Washington cases… F If center line crossed, and on-coming traffic, stop should be OK because of the danger of a head-on crash F If no on-coming traffic, see above Crossing Fog Line or Center Line

27 n A Terry stop may not be made of a vehicle to investigate a misdemeanor failure to transfer title offense, RCW 46.12.101(6), unless… F The stop is made on the 46th day after the vehicle was sold –State v. Walker, 129 Wn.App. 572 (Div. 3 2005) –State v. Green, 150 Wn.2d 740 (2004) (RCW 46.12.101(6) is not a continuing offense, so violation only occurs on day 46 after vehicle sold) F Must document exact date of sale in report, and count 46 days later n Not an infraction for first 45 days, or day 47 or later… F RCW 46.12.101 mandates increased penalties the buyer/owner must pay, but those penalties are not defined as infractions justifying a stop of the vehicle Failure To Transfer Title

28 n Washington’s traffic infraction statutes in Title 46 RCW generally only apply to actions taken on public roadways… F See RCW 46.04 for definitions of “highway” and “roadway” F State v. Brown, 119 Wn.App. 483 (Div. 2 2003) (RCW 46.61.305(1)’s requirement to signal before turning does not apply to private property) n One notable exception is parking in a disabled parking space without a permit… F RCW 46.16.381(9) Private Property Traffic Infractions

29 n Some criminal traffic offenses may be committed anywhere in the state, while others only on public roadways… F Officers should take care when contacting a suspect believed to have committed a criminal traffic offense on private property to verify that the criminal statute applies to private property actions n Private property traffic crimes which may be prosecuted include… F Reckless driving, RCW 46.61.500 F First degree negligent driving, RCW 46.61.5249 F Driving while license suspended, RCW 46.61.342(1) F Minor driving after consuming, RCW 46.61.503 F DUI and physical control, RCW 46.61.502, 46.61.504 –But see State v. Day, 96 Wn.2d 646 (1981) (DUI statute does not apply to intoxicated driver rapidly driving in circles in private field owned by parents where driver not on or near a public road and public had no right to be in field) Private Property Traffic Crimes

30 n Washington const. art. 1, § 7 prohibits questions unrelated to the reason for a traffic stop unless… F The officer has an independent lawful basis for the questioning… –State v. Allen, 138 Wn.App. 463 (Div. 2 2007) n Asking for driver’s license, vehicle registration and insurance to verify identity, driver’s license status, and check for outstanding warrants is OK n Officer must document in report the information known prior to the unrelated questioning which justified the unrelated questions… F Terry “reasonable suspicion” standard F Failure to do so will result in evidence suppression!!! Questioning Unrelated To Reason For Traffic Stop - Art. 1, § 7

31 n The Fourth Amendment permits questioning unrelated to the reason for a traffic stop so long as… F The duration of the detention is not “prolonged” –United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007) n Washington’s constitution provides greater individual privacy protection than the federal constitution… F So, the 4th Amendment and United States v. Mendez do not apply in Washington Questioning Unrelated To Reason For Traffic Stop – 4th Amendment

32 n When a Terry detainee provides a false name, false date of birth, false address, or says he had no alcohol to drink (yet is clearly intoxicated)… F Always consider the gross misdemeanor crime of false statement to public servant, RCW 9A.76.175 F Report must include discussion why the information is “reasonably likely” to be relied upon by a public servant –State v. Godsey, 131 Wn.App. 278 (Div. 3 200) n False statement is a crime of dishonesty under Evidence Rule 609(a), which means a jury will hear about a false statement conviction the next time (and every time) the defendant testifies in court… F Obstructing a law enforcement officer, RCW 9A.76.020, only applies to a suspect’s actions, not words –State v. Spartacus Williamson, 84 Wn.App. 37 (Div. 2 1996) F Obstructing is not a crime of dishonesty Lying To An Officer

33 n Officers may not use Washington’s traffic laws as a pretext for stopping a vehicle for other investigative purposes… F State v. Ladson, 138 Wn.2d 343 (1999)… –Lacey officer and Thurston County detective on proactive gang patrol did not make routine traffic stops but did use traffic infractions as a means to pull people over to initiate contact and questioning –Stopped driver and Ladson (passenger) after following vehicle for awhile based upon 5 day old expired tabs –Officers aware that driver “rumored” to be involved in drug dealing. Found drugs, and arrested driver and Ladson. F Held that the existence of an objective traffic law violation may not be used as a pretext for stopping vehicle for other investigative purposes Pretext Traffic Stops Prohibited In Washington - Art. 1, § 7

34 n Much pretextual litigation has occurred since Ladson n Cases are clear that traffic emphasis patrols and enforcement of traffic laws by officer in the normal course of officer’s duties are not pretextual unless… F There is evidence that the officer was engaged in gang, drug, or another specific kind of investigation rather than on routine patrol… –State v. Nichols, 162 P.3d 1122 (S.Ct. July 19, 2007) F Officer’s knowledge or belief that drug transaction might have occurred does not make traffic stop pretextual if officer is on traffic patrol and the officer’s actions upon stopping the vehicle are consistent with actions generally taken by patrol officer… –State v. Hoang, 101 Wn.App. 732 (Div. 1 2000) Traffic Stop By Officer On Duty To Enforce Traffic Laws Not Pretextual

35 n An officer lacks a lawful basis to open a cigarette package seized from a passenger during a Terry pat- down weapons frisk… F State v. Horton, 136 Wn.App. 29 (Div. 3 2006)… n Opening a cigarette package not justified once officer determines the package is not a weapon… F Officer may withdraw an object from a suspect if the object feels like it might be a weapon F But officer may not open object unless officer documents particularized circumstances in support of belief that suspect had weapon in package… –Generalized belief package “could” contain a razor blade or other weapon not enough absent explanation why detainee might have and use such weapons F Officer can be protected by tossing the pack out of reach Opening Containers Seized During Terry Frisk For Weapons

36 n We interpret Horton as restricting officers from opening any container during a Terry weapons frisk that is only large enough to hold a “miniature” weapon n Horton does not overrule other cases that permit officers to open containers that are large enough to contain a full-size or small weapon… F But officers must document the reasons for opening any container seized during a Terry weapons frisk n Washington appellate courts will likely take years to clarify the parameters of Horton How Broad Is Horton?

37 n Mere possession of drug paraphernalia does not provide probable cause for arrest under state law because possession of drug paraphernalia is not a crime under RCW 69.50.412(1)… F The statute requires evidence that the drug paraphernalia was used “to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pace, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.” –State v. O’Neill, 148 Wn.2d 564 (2003) Possession Of Drug Paraphernalia Is Not A State Crime

38 n Officer must document the specific controlled substance… –“Green leafy vegetable matter” is not enough because green vegetable matter is not a controlled substance –If it is marijuana, officer must say so n Officer must explain how officer came to conclusion the substance was controlled… F Training, experience, on-site drug test, etc. n The presence of drug residue may provide PC to arrest… F If the officer documents the specific controlled substance and how the officer knows the residue is a controlled substance What Is Needed For Use Of Drug Paraphernalia?

39 n Some cities have local ordinances making possession of drug paraphernalia a crime… F We have concern about the constitutionality of such an ordinance when the definition of “paraphernalia” is broad enough to cover pretty much everything –Due process vagueness principles… arbitrary enforcement by law enforcement, or public unable to determine what is permitted and prohibited by ordinance F Speak with your city attorney Possession Of Drug Paraphernalia City Ordinances?

40 A Prosecutor’s Perspective On Traffic Cases Kitsap County Chief DPA Jeffrey J. Jahns

41 Topic 3 DUI Arrest Reports

42 n RCW 9.94A.411(2)(b)(i) discusses the requirement for a thorough factual investigation before a prosecutor makes a charging decision… “A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following: (a) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible; (b) The completion of necessary laboratory tests; and (c) The obtaining, in accordance with constitutional requirements, of the suspect’s version of the events.” “Thorough Factual Investigation”

43 n RCW 9.94A.411(2)(b)(i) continues with a requirement for follow-up investigation… “If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include.” Follow-up Investigation

44 n RCW 9.94A.411(2)(b)(ii) discusses exceptions to the “thorough factual investigation” standard… “In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if: (a) Probable cause exists to believe the suspect is guilty; (b) The suspect presents a danger to the community or is likely to flee if not apprehended; or (c) The arrest of the suspect is necessary to complete the investigation of the crime. In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed.” Exceptions

45 n A thorough and well-written police report has many effective uses… F Documents what occurred to help refresh officer’s memory at a perhaps much later court hearing F Provides PC in support of the filing of each criminal charge F Provides info to prosecutor to assist in assessing aggravating and mitigating circumstances in support of plea offer F Permits a court to find PC in support of the charge(s), and to set bail F Provides info to defense attorney to convince client to plead guilty F Provides info to defendant to convince defendant he/she is guilty F Provides info to court to assist in imposing proper sentence F Provides info to probation to assist in proper monitoring of defendant F Provides info to treatment providers to assist in proper treatment of defendant Why A Thorough Police Report?

46 n A defense attorney who believes the evidence will convict a client has no reason to reject a plea offer and go to trial, because… F The risk of conviction is high F The defendant if convicted will probably receive a sentence with more jail than the initial plea offer F Defense attorneys have enough work to do without going through suppression or dismissal hearings with no hope of success F Defense attorneys respect a well-written and detailed report because it is difficult to convince a jury that the officer is biased, or lazy, or incompetent, or unfair to the defendant… –Especially when the officer lists items favorable to the defendant (the defendant was cooperative), but concludes for example that the defendant was obviously too intoxicated to drive –A prosecutor’s argument to the jury: “The officer was unfair to the defendant? Why then list items to help the defendant’s case? The officer was professional and unbiased. You should believe the officer’s conclusion that the defendant was intoxicated.” F No attorney likes to lose! Convincing The Defense Attorney?

47 n District and Municipal Court prosecutors are typically the newest and least experienced prosecutors in the office… F The DUI defense bar is often very experienced, and files lengthy and complicated DUI motions n These new prosecutors have huge caseloads, and should not “go to bat” for an officer who refuses to provide the prosecutor with good work product… F Why should I as a supervising prosecutor “support” shoddy police work? –It is much easier to triage poorly handled cases, and work hard on the cases where the officer also worked hard F Prosecutors, like the defense and courts, know who are the “good” and “bad” officers New Prosecutors

48 n Does an officer never going to court mean the reports are so well written that… F The defendants all plead guilty because the defense attorney believes the case is a lost cause? n Or does it mean that the officer provides shoddy work product and… F The cases are all compromised by the prosecutor? n Or does it mean that the prosecutor is SOT (scared of trial), is not following office plea negotiation standards and is improperly compromising cases? F A supervising prosecutor should be constantly monitoring new prosecutors for SOT F If the new prosecutor is taking cases to jury trial, then an officer never going to court is option 1 or 2 above What Does An Officer Never Going To Court Really Mean?

49 n RCW 46.61.502 (DUI) and RCW 46.61.504 (physical control) provide two different methods of proving the crime… F Within 2 hours of driving/physical control, the person had an alcohol concentration of 0.08 or higher as shown by an accurate and reliable test of the person’s breath/blood, or F At the time of driving, the person was under the influence of or affected by intoxicating liquor n In breath test cases, prosecutors typically submit evidence to cover both methods n In refusal cases, prosecutors obviously do not have a breath test so the “under the influence” method is the only option Two Ways To Prove Alcohol DUI

50 n “A person is under the influence of or affected by the use of intoxicating liquor if the person’s ability to drive a motor vehicle is lessened in any appreciable degree.” F Washington Pattern Jury Instructions Criminal 92.10 n An officer’s opinion of intoxication must focus on why the defendant’s ability to drive was “lessened in any appreciable degree”… F The officer’s report must document why the officer came to that opinion F How was the defendant’s driving ability lessened when compared to a sober driver? Definition Of “Under The Influence”

51 n DUIs require a whole lot of paperwork by the officer for reasons already discussed n The WSP DUI Arrest Forms have been developed by the WSP in conjunction with… F The Washington Association of Prosecuting Attorneys, and F The Department of Licensing n The categories and boxes are all there for a reason… F If an officer skips over the DUI paperwork, the defense will chew up the officer on the stand F Every inadvertently forgotten checkbox will be highlighted by the defense to the jury… –And places the prosecution on defense by having to explain why the officer did not complete the forms correctly n Let’s keep the prosecution on offense!!! The WSP DUI Arrest Forms

52 n Please use the WSP DUI Arrest Forms! F The forms are at… F The forms are available in English and Spanish n Yes they are lengthy and complicated n Cutting corners will only give the DUI defense bar ammunition to obtain a less-than-favorable result The WSP DUI Arrest Forms Con’d

53 n Pre-arrest observations, question 8 on page 4 asks for the officer’s opinion of impairment due to the use of alcohol or drugs… F Slight F Obvious F Extreme n Yet a few officers write “impaired” when there is no “impaired” option… F I know you think the driver is impaired, that is why you arrested him/her for DUI, processed the case, and referred it to the prosecutor’s office n I want to know the level of impairment… F And I want the defense attorney, defendant, court, etc. to know the level of impairment n Pick one of the three options. Never write “impaired”. Defendant Was “Impaired”

54 n Never deviate from the printed language of the constitutional rights on page 2 and the implied consent warnings on page 3… F If the suspect has questions, re-read the rights or warnings and document that you did so in your report F Do not give legal advice, nor try to interpret what the rights or warnings mean n Any deviation from the language will at best result in the officer having to testify at a suppression hearing, and at worst result in serious reduction of charges or dismissal Constitutional Rights & Implied Consent Warnings

55 n A box concerning a PBT is below the implied consent warnings section at page 3 n “I performed the PBT test in accordance with the State Toxicologist’s protocols”… F Are you sure? F If you check this box and did not follow the onerous Toxicologist PBT requirements, you just signed an untruthful statement under oath… –Which will have some serious consequences for the case, the officer’s future cases, the officer’s ability to be employed as an officer, and potentially result in the officer’s actions being reviewed for criminal charges n More PBT discussion in Topic 4 The PBT Test

56 n Pre-arrest observations, box 10 on page 4 asks for passenger information… F Get it! Full name, date of birth, address F These people are witnesses whom the prosecution may want to speak with and ultimately call as a witness n Even better, an officer should interview the passengers as witnesses to a crime… F Who was driving? F What did the suspect drink? How much? F Where did the suspect drink? F When did the suspect start drinking, and stop? F Why did the suspect drive after drinking? F Was the suspect OK to drive? Why? Why not? F What concerns did you have about the suspect driving after drinking? Passenger Information – Get It

57 n A DUI defendant’s sentence is increased when a passenger is under age 16… F The court shall order the installation and use of an ignition interlock device for not less than an additional 60 days n The prosecution must prove the passenger was under age 16… F Full name, date of birth, address Passengers Under Age 16

58 n I think that all DUI suspects should be booked and bail set… F Booking results in the taking of fingerprints and photograph, and F The creation of a Triple I record of arrest n But if the officer releases the suspect to someone… F Get the information discussed in the previous passenger slide F The person might have seen the suspect drinking n Either way, make sure to include this information (and bail amount) at the Administrative Process (BAC and Disposition) section of the narrative report on page 6 Interview The Person Who Picks Up The DUI Suspect

59 n The DUI arrest report has a sobriety tests section at page 5 n Use of this section and boxes provides an easy to understand summary of the suspect’s SFST and FST performance… F Writing the suspect’s SFST and FST performance in the narrative report makes it more difficult to figure out how the suspect performed the tests F And probably takes longer for the officer to complete n If the “comments” boxes are not large enough, OK to include the comments in the narrative report Sobriety Tests

60 n Officers should administer more than just SFSTs… F SFSTs were created to develop PC to arrest for over limit BACs F All FSTs, including SFSTs, are persuasive evidence towards showing beyond a reasonable doubt that the suspect was under the influence n Why limit the evidence to SFSTs? F Officers should administer the alphabet, balance, finger dexterity and finger to nose supplemental tests on the WSP DUI Arrest Report Sobriety Tests at page 5 F Especially the alphabet. It is very difficult for the defense to explain the poor results (especially if the officer asks about the defendant’s education). F An officer’s job is to gather evidence. Limiting the “gathering” to SFSTs is a mistake… –The defense will surely ask the officer why these other tests were not performed, and ask the officer whether it is possible the defendant could have passed the unperformed tests SFSTs Are Not Enough!

61 n “A person refuses a law enforcement officer’s request to submit to a test to determine the person’s breath alcohol concentration when the person shows or expresses a positive unwillingness to do the request or to comply with the request.” F Washington Pattern Jury Instructions Criminal 92.13 n Officers must document the refusal with this definition in mind… F Paragraph heading “Refusal-Positive Unwillingness to Comply” works nicely n Refusals matter. Prosecutors may argue that the defendant refused because he knew he would fail the test aka consciousness of guilt… F State v. Long, 113 Wn.2d 266 (1989) Definition of “Refusal”

62 n The corpus delicti confession corroboration rule is derived from ancient British common law which sought to stop false confessions obtained through torture and beatings by… F Prohibiting the Crown from proving a case based solely on a defendant’s extrajudicial confession n The rule has been modified but still exists today regardless of whether a suspect’s admissions were made… F During a police custodial interrogation, or F Voluntarily by a suspect during a Terry detention The Corpus Delicti Rule

63 n When an officer observes a suspect driving and determines that the suspect is under the influence, sufficient independent evidence exists in addition to the suspect’s confession to support the admission of the statements under the corpus delicti rule n But DUI crash cases present a corpus delicti issue because generally no one sees the suspect driving n Bremerton v. Corbett, 106 Wn.2d 569 (1986) is the key Washington corpus delicti case concerning DUI crash cases Corpus Delicti And Crash Cases

64 n The Supreme Court held that for a DUI defendant’s confession and admissions to be admitted, the prosecution must show by independent prima facie evidence that… F The defendant drove a vehicle, and F The defendant was under the influence at the time of driving n The Supreme Court held that a case must be dismissed if the corpus delicti rule is not satisfied! Bremerton v. Corbett

65 n Officers must in DUI crash cases include a “Corpus Delicti Evidence” section in the narrative report… F If the defense attorney is convinced, no hearing F If the officer does not include anything in the narrative report about corpus delicti, there will be a hearing n Corpus Delicti Evidence includes… –Two people in area? Passenger says suspect was driver who did not drink after the crash. –Manual transmission, and the sober person cannot drive stick –Only suspect in area, and has mud on pants or injured knees consistent with trying to get out of vehicle, or trying to free vehicle –Windshield broken on driver’s side, and suspect has head injury –Suspect has seatbelt bruises on left shoulder, or passenger has seatbelt bruises on right shoulder –Engine warm (showing recent time of driving) –Driver’s seat is back, driver is tall, and passenger is short –No empty alcohol containers found –Vehicle keys in suspect’s pocket –Vehicle registered to suspect “Corpus Delicti Evidence”

66 n Officers should include a statement in every DUI report about ignition interlock… F There was no ignition interlock in the vehicle, or F There was an ignition interlock in vehicle n Although DOL might not report that the suspect is interlock restricted… F A court may have ordered ignition interlock as a condition of release or condition of sentence F The new incident can be used to sanction the suspect based upon the previous case wherein the interlock order was entered… –Courts do not like defendants who ignore their interlock orders No Interlock In Vehicle

67 n Use the following headings in a DUI report… F Officer’s Authority and Certifications F Driving Information, and Basis of Stop –Include RCW numbers of all applicable traffic infractions F Initial Contact With Suspect F Pre-Arrest Screening –Brief description about the scene and SFSTs/FSTs. But use Sobriety Tests section for SFST/FST results F Arrest F Search of the Suspect F Miranda Rights and Warnings F Search of Vehicle F License and Warrants Check F Impound Report Writing Tips – Headings

68 n DUI report headings continued… F Other Crimes (resisting arrest, etc.) F DataMaster (or DataMaster CDM) Processing F Booking F Evidence Seized F Disposition F Penalty of Perjury section –Sign, date, and location n Headings are useful as a checklist, helping the officer remember to include a discussion about each heading topic Report Writing Tips – Headings Continued

69 n The most serious crime should always be cited as count 1… F DUI F Then other gross misdemeanors, such as DWLR 1, DWLR/S 2, false statement F Then other misdemeanors, such as possession of marijuana, resisting arrest F Always have last count be DWLS 3 or criminal NVOL… –Although crimes, they are the least serious criminal traffic charges n Court and prosecutor statistical data is generally run based upon count 1 n Count 1 always gets everyone’s attention Report Writing Tips – Most Serious Crime Is Count 1

70 n Do not use a small font to save space n Judges have trouble reading small fonts, and get irritated when having to do so Report Writing Tips – Avoid Small Fonts

71 n Do not provide a report to the prosecutor’s office on double-sided copies n This just slows down the prosecutor’s staff, who has to copy the report several times Report Writing Tips – Duplexing

72 Topic 4 Portable Breath Tests

73 n The State Toxicologist has promulgated regulations concerning PBTs which determine their use n First, PBT results are only admissible to show PC to arrest for an alcohol offense. They may not be used to show BAC results… F WAC 448-15-020 n Second, all the Toxicologist’s protocols for the administration of a PBT must be met… PBT Results Only Admissible For PC To Arrest For Alcohol Offense

74 F The PBT must be an Alco-Sensor III. WAC 448-15-010. F The PBT must be administered by a certified operator. WAC 448-15-050. F WAC 448-15-030 test protocol must be followed… –1. The operator must advise the subject that the PBT is a voluntary test –2. The operator must advise the subject that the PBT is not an alternative to an evidentiary breath test as described in WAC 448-13 –3. The operator shall determine by observation or inquiry that the subject has not consumed any alcohol in the 15 minutes prior to administering the PBT. If the subject when asked responds that he/she has not consumed any alcohol in the last 15 minutes, the officer may offer the PBT. If the subject claims to have consumed alcohol in the last 15 minutes or the subject refuses to answer the question, the officer must wait at least 15 minutes before conducting the PBT. WAC 448-15 PBT Administration

75 F WAC 448-15-030 test protocol continues… –4. If the subject consents to the PBT, the officer must check the temperature of the PBT to insure it is within normal operating range –5. The officer will then press the “read” button to obtain a sample of ambiant air, and ensure the result is 0.0003 or less –6. The subject will be asked to exhale into the device, and –7. The PBT will be activated towards the end of the subject’s exhalation to capture a portion of the end expiratory breath for analysis F The PBT device must be certified at least every 6 months by a PBT technician. WAC 448-15-040. WAC 448-15 PBT Administration Continued

76 n An officer using a PBT must document compliance with every aspect of WAC 448-15 in the narrative report… F Preferably under a separate heading “PBT Administration” n Failure to do so will result in a hearing concerning PBT admissibility Documenting WAC 448-15 Compliance

77 n The Alco-Sensor FST has not yet been approved by the Toxicologist… F The Toxicologist is in the process of amending WAC 448-15-010 and approving the Alco-Sensor FST n See the Alco-Sensor vendor’s website… F The Alco-Sensor FST

78 Topic 5 WSP RCW 46 “Cheat Sheet”

79 n The WSP has an excellent Rules of the Road “Cheat Sheet” n RCW 46 traffic offenses are grouped by category, and number within each category n Makes it very easy to find an RCW 46 number Looking For An RCW 46 Number?

80 Topic 6 BAC Test Results Admissibility

81 F 1. The defendant must have been validly arrested for any offense. RCW 46.20.308(1). F 2. At the time of arrest, the arresting officer must have had probable cause to believe the defendant was DUI, or physical control, or minor driving after consuming. RCW 46.20.308(1). F 3. The defendant must have been advised of the right to counsel prior to administration of the breath test. Miranda v. Arizona and CrRLJ 3.1. F 4. The implied consent advisements and warnings must have been given to the defendant prior to administration of the breath test. RCW 46.20.308(2). Foundation Necessary For Breath Test Admissibility

82 F 5. The breath test instrument must be approved by the State Toxicologist. RCW 46.61.506(4)(a). –WAC 448-16-020 approves the DataMaster and DataMaster CDM F 6. The 8 statutory breath test foundational prongs of RCW 46.61.506(4)(b) must be shown by prima facie evidence. Fircrest v. Jensen, 158 Wn.2d 384 (2006)… –(1) The person who performed the test was authorized to perform such test by the state toxicologist –(2) The person being tested did not vomit or have anything to eat, drink, or smoke for at least 15 minutes prior to administration of the test –(3) The person being tested did not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the 15 minute observation period Foundation Necessary For Breath Test Admissibility Cont’d

83 F 6. The 8 statutory breath test foundational prongs continue… –(4) Prior to the start of the test, the temperature of the simulator solution as measured by a thermometer approved of by the state toxicologist was 34 degrees centigrade plus or minus 0.3 degrees centigrade –(5) The internal standard test resulted in the message “verified” –(6) The two breath samples agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist –(7) The simulator external standard result did lie between.072 to.088 inclusive, and –(8) All blank tests gave results of.000. Foundation Necessary For Breath Test Admissibility Cont’d

84 n An officer’s DUI report must include evidence of all the preceding elements of the foundation for the admissibility of the breath test results… F Failure to do so will result in breath test results being suppressed, and/or F DUI cases being compromised BAC Foundation Documentation

85 Topic 7 Felony DUI & Physical Control

86 n Laws of 2006, ch. 73 (effective July 1, 2007) created new class C felonies (5 years in prison and/or $10,000 maximum)… F Felony DUI, RCW 46.61.502(6), and F Felony Physical Control, RCW 46.61.504(6) n A felony is committed if the person commits DUI or physical control, and… F The person has ever previously been convicted of… –Vehicular homicide while under the influence, or –Vehicular assault while under the influence, or F The person has 4 or more prior offenses in 10 years Felony DUI and Felony Physical Control

87 n Prior offense, RCW 46.61.5055(13)(b), includes… F Any conviction for DUI, physical control, vehicular homicide while under the influence, or vehicular assault while under the influence F Any deferred prosecution granted for DUI or physical control… –Bremerton v. Tucker, 126 Wn.App. 26 (Div. 2 2005) F Any conviction for first degree negligent driving, reckless driving or reckless endangerment reduced from a DUI or physical control charge if the “prior driving conviction involved use of intoxicating liquor or drugs”… –Walla Walla v. Greene, 154 Wn.2d 722 (2005) n Within 10 years, RCW 46.61.5055(13)(c), means the arrest for the prior offense occurred within 10 years of the arrest for the current offense Definitions

88 n Felony DUI and felony physical control have been classified as Level V offenses… F The lowest standard range a defendant could face is 13 to 17 months in prison F More likely, due to criminal history, a defendant will face much more time with the maximum 5 years a real possibility n Of course, this assumes that police and prosecutors work as a team, do solid work, and get these defendants convicted Tough Penalties

89 n Officers will likely not know the DUI or physical control is a candidate for felony treatment until after processing the suspect, if at all n Prosecutors expect that police will refer such cases as DUI or physical control, and… F It will be the prosecutor’s obligation to run criminal histories, and determine whether the case involves Felony DUI or Felony Physical Control n Officers need to treat every DUI or physical control as a possible felony Many Challenges

90 n It will take time for prosecutors to collect prior offense evidence from courts throughout the state, and possibly the country… F The prior offense(s) are elements of the crime, and thus must be proven beyond a reasonable doubt n Some courts will not have saved 10 year old conviction information n What to do with the defendant during this evidence collection process? F We are going to file the felony charges based on probable cause from the officer’s report and criminal history reports in Kitsap District Court, which will give at least 30 days to gather the necessary prior offense paperwork F Kitsap will seek $50,000 bail on felony DUI and felony physical control defendants. We will see what happens. Many Challenges Continued

91 Topic 8 “Minor DUI”

92 n RCW 46.61.503 provides that a person under age 21 who drives or has physical control of a vehicle, and has an alcohol concentration of 0.02 to 0.079 within 2 hours, is guilty of a misdemeanor Minor Driving After Consuming

93 n Much officer confusion about RCW 46.61.503… F Anyone (regardless of age) committing DUI or physical control can be charged/convicted of DUI or physical control… –Remember, a person can be convicted of DUI or physical control with a breath test below 0.08, or with no breath test at all (the person’s ability to drive is lessened in any appreciable degree) F RCW 46.61.503 is not an alternative to DUI or physical control for under age 21 suspects F RCW 46.61.503 must have a breath test. Refusals cannot be charged under this statute. F RCW 46.61.503 is just a misdemeanor (90 days, and/or $1000 maximum sentence), unlike DUI and physical control F Minor in possession or consumption of alcohol also applies, and is a gross misdemeanor. RCW 66.44.270(2)(a). n Do not give a DUI minor a “break” by citing RCW 46.61.503… F A DUI is a DUI is a DUI, regardless of the offender’s age This Is Not A “Minor” DUI

94 n A “Minor DUI” law would subject a minor with a 0.02 or higher breath test to the same penalties as DUI… F RCW 46.61.503 is no where near a “Minor DUI” law n Avoid the confusion by avoiding the phrases “Minor DUI” or “Minor Zero Tolerance Law” F Call RCW 46.61.503 “Minor Driving After Consuming” We Do Not Have A “Minor” DUI Law

95 Jeffrey J. Jahns Chief Deputy Prosecuting Attorney Kitsap County Prosecutor’s Office 614 Division Street, MS-35 Port Orchard, WA 98366 360-337-4982 Contact Information

96 A Prosecutor’s Perspective On Traffic Cases Kitsap County Chief DPA Jeffrey J. Jahns

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