What do I do if I am Stopped?

Being stopped by police can be a nerve-wracking experience for any law abiding citizen, which means that it is all the more important for you as the driver to know your legal rights when you have been stopped, detained, or arrested.

Police officers are sworn to uphold the laws of the state, so when an officer pulls you over, s/he has either stopped you on suspicion of violating the law, or have pulled you over looking for criminal activity. A traffic stop is the officer’s opportunity to collect evidence of a potential crime that has been committed; therefore, when you are pulled over, it is imperative that you know that you have the right to remain silent throughout the process.

The Right to Remain Silent 

Let’s first turn to the Fifth Amendment of the Constitution of the United States. It provides that “No person shall . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” The Constitution is broad document and as a lawyer in our common law system, we find out the scope of these Constitutional rights by the reviewing the Supreme Court jurisprudence (which is really just a fancy way of saying case-law developments).

Police Custody, Questioning,  and Probable Cause

The specifics of this right can be a bit tricky, but if you’ve been stopped on suspicion of criminal activity, it is your right for you to not provide evidence against yourself. For someone who is not an expert on constitutional law, a good rule of thumb is that you are in police custody if you do not have the freedom to leave. So when you’re stopped by police, it’s good to first clarify whether or not you are in police custody at that time. The custodial requirements for officers hinges on whether the police have probable cause to effectuate an arrest against you; that is, have police seen sufficient evidence of a crime to arrest you?

Invoking The Right To Remain Silent

How does one invoke their right to remain silent? This can be a bit tricky as well. Just recently, the Supreme Court ruled that in order to invoke your right to remain silent, a defendant must affirmatively invoke it to be protected. Meaning that your silence may not be protected if you do not say out loud or provide some other means of conveying that, “I am asserting my right to remain silent.”

Why does this matter? I know it may seem like a peculiarity, but this is an important evidentiary matter. When police are asking you a question, the prosecution can use evidence of your silence as an adoptive admission. This means that if you were silent when the officer asked you a question that a would implicate you in a crime, your silence can be used as evidence that you did not provide an answer an officer’s legally operative question. Thus, silence alone can be used as evidence that you committed a crime unless you affirmatively do SOMETHING to assert your right.

You Have the Right to an Attorney

Similar to your right to remain silent, invoking your right to have an attorney present during questioning is a paramount legal right in criminal law. Most people know that they have the right to an attorney, but they do not know that if an officer knows that you are represented by counsel or that you have requested an attorney, or asked if you need one, you have invoked your right to counsel.

Once you have invoked your right to counsel, police may not continue with their line of questioning until they have located an attorney. This applies even if an officer has pulled you over on suspicion of driving under the influence. An officer must attempt to reach your attorney or an attorney so that they may question you. Moreover, the attempt to locate an attorney must be longer than 15 minutes.

Assert Your Rights

On the back of our business cards here at Evergreen Defenders P.S., we try to make sure that our clients know what their rights are, and since we’d really like to make sure you know when to assert your rights. Every one of Ms. Chirichillo’s cards states

To Law Enforcement Can Call Collect After Hours:

  1. I have provided you with my driver’s license, registration, and proof of insurance.
  2. I will not be answering any questions or making any statements.
  3. I will not be volunteering to perform field sobriety tests.
  4. If you have probable cause to arrest me, I WILL blow in a BAC machine at the station or agree to a blood draw.
  5. If I am NOT under arrest, I wish to leave.
  6. If I am detained or placed under arrest I wish to speak to Ms. Chirichillo immediately, her 24/7 phone # is (360) 888-5783.

Washington State DUI Basics

As an attorney, it is disappointing to find out just how many people do not understand the rules for Driving Under the Influence. When you hear the term “legal limit” you may be thinking of it like a speed limit and think that just because you’re under the legal limit for blood level intoxication, 0.08, that you are safe from getting a DUI. Not true!

RCW 46.61.502 defines the offense of Driving under the influence. But also keep in mind that under RCW 46.61.504, an occupant of a vehicle, i.e., someone who is not even operating the car, can be charged with a DUI if the person is in “actual physical control of the vehicle.” So just remember that you don’t have to be driving to get arrested.

Driving Under the Influence of Alcohol
For alcohol, Washington uses blood alcohol concentration (BAC) as its metric for determining alcoholic content. As a driver, you are guilty of Driving Under the Influence (and thus can be charged with a DUI) for having a BAC in excess of:

* 0.08, if above the age of 21

* 0.04, if operating a commercial vehicle

* 0.02, if below the age of 21

Remember that these are the only limits by which the State presumes that a driver has been operating a vehicle under the influence. The statute also has two catchall provisions. If a driver has operated the vehicle “While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug” (46.61.502(1)(c)) or “While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug”(46.61.502(1)(d)) the driver is also guilty of Driving Under the Influence.

So if a police officer determines from a traffic stop that you have been operating the vehicle under the influence of alcohol or other mind altering substances, the officer can take you into custody regardless of your actual blood alcohol level. Police officers are given broad discretion in their determination and assessment of a driver’s level of intoxication, so it is important for citizens to understand their rights and to have an attorney well-versed in the science behind DUI.

Driving Under the Influence of Marijuana
Marijuana has a similar legal limit to alcohol. If within two hours of operating a vehicle, the driver’s blood comes back with a THC concentration of 5.0 ng/ml or higher (nanograms per milliliter of whole blood), the driver has committed a DUI.

Driving Under the Influence of “Any Drug”
Also note that the statute above has a provision under 502(1)(c) and 502(1)(d) for “any drug.” This is another catchall. The next section makes clear “The fact that a person charged with a violation of [Driving under the influence] is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section.” If an officer decides that you are impaired by any drug, even drugs prescribed by a physician, you can be charged with a DUI. I know, I’m thinking the same thing: where’s the DUIs for all the coffee drinkers?

Posted in DUI

Navigating Through The Criminal Justice Process

For many people, this is the first time that they have been through the system. Law is a foreign process to outsiders, which is why we have a right to have an attorneys represent us in these proceedings. However, every criminal case is different, so the length of time that each case takes depends on the evidence available, the complexity of the legal issues presented, and even the prosecutor’s workload. But generally, criminal trials are disposed of either during the pretrial process or after a jury trial.
What is an arraignment?
For most cases, the first appearance in a criminal proceeding is the arraignment. This stage is where defendants are “apprised of their rights in a criminal case and of the charges against them for the first time.” Judges will often make a finding of probable cause and set bail and other release conditions. As many judges impose alcohol and drug use restrictions at this point in the case, it is important for you to let your attorney know if you work in an occupation where alcohol is served on the premises so that by going to work you are not violating the court’s order.

Pretrial Hearing
Following the arraignment, where the court sets the pretrial calendar, comes the pretrial hearings. These hearings are usually set out between four and six weeks apart depending on the court and how much time remains on your speedy trial. Each hearing is like a progress report to the judge. The sides will present where they are currently in their trial prep. Your attorney will be reviewing the evidence presented against you and working with the prosecutor to find the best way to resolve the case. If your attorney needs more time, they may ask you to waive your right to a speedy trial to allow them to have more time to work out a favorable disposition. While some clients are satisfied with the deal that their attorney manages to work out with the prosecution others will prefer to go to trial, as it is only your right to make such a determination.

Jury Trial
If you do opt to go to trial, there will be a preliminary hearing before the trial to ensure that both of the parties are ready for trial. Usually within a week the court will hold the trial. However, even trials can get pushed back a few weeks depending on the court’s schedule and caseload. A trial starts with jury selection, moves into opening arguments, the prosecution calls its witnesses and makes its case, then the defense makes its case, closing arguments, and then the jury deliberates and makes its finding of guilty or not guilty.

Review Hearings
These review hearings can be held between six months and a year after negotiating a judgment. Often with cases that involve Driving Under the Influence, the judge will impose certain penalties and conditions for the deal that your attorney has negotiated with the prosecution. Here, the court will make sure that you have followed through on things like attending your victims impact panel, drug and alcohol evaluation, or that you have paid the fine that the court has issued against you. If you have complied with all of the court requirements at this time, then hopefully you will not need to familiarize yourself with the process again.

I Got a DUI, Now What?

Take it from me, a DUI is expensive, and inconvenient. But if you’ve already been cited for a DUI, then the first thing you should be doing is making sure that you’re not going to get you into more trouble that would cost you even more time and money.

My License Has Been Suspended
When you are charged with Driving Under the Influence in the State of Washington, the State will send a notice of the charges to the Department of Licensing, who will then send a notice of suspension to the driver. (This is also why I always emphasize to clients that if your current address is different from the address provided on your license, you should update your address with the Department of Licensing to ensure that you receive such notifications.) During an optional administrative hearing, you have the opportunity to contest the suspension with the Department of Licensing, though these hearings are not often successful for most DUI defendants.

To get your license back after the DOL has suspended your license, the DOL will provide personalized instructions on their website for what you’ll need to do to get your license reinstated. This may include needing to get an ignition interlock device or SR-22 insurance. These conditions depend on the nature of your criminal record and driving record. However, I would always like to emphasize that you should make sure that you meet all of the requirements set by the DOL before operating your car as this step can help you avoid getting a Driving with a Suspended License charge.

Complying with Pretrial Release Conditions
During your arraignment, along with being apprised of your rights in a criminal case and the charges against you, the court may also impose release conditions. These depend on the allegations against you, if you have any prior offenses, how high your BAC was when you were arrested, and other aggravating factors (such as driving impaired with a minor in the vehicle). The conditions that a court can impose on your release are varied and include requiring electronic/GPS monitoring, home detention, alcohol monitoring, as well as alcohol and drug use restrictions.

Electronic Home Monitoring
Electronic monitoring involves tracking an individual during or after a trial utilizing radio frequency signaling technology or active or passive global positioning system technology. These monitors detect your location and notify the monitoring agency of your location as well as if you are attempting to tamper with your monitoring device. I shouldn’t have to tell you this but: Do not tamper with your monitoring device! One charge is enough. You shouldn’t be making your job or your lawyer’s any more difficult.
Your lawyer will be able to give you the best indication of how best to move forward with your particular set of facts and circumstances. Although these tips may seem simple, failing to take the necessary steps to comply with the court’s order or to reinstate your driving privileges can make your DUI case last longer, and hurt your chances of getting the best resolution possible. So do your part, listen to your attorney and don’t turn one citation into more.

Posted in DUI

Washington State DUI Law Changes

HB 1943 – Electronic Monitoring – Home Detention

To settle a criminal complaint, a defendant may choose home detention, a form of electronic monitoring where you are confined in your private residence for 24 hours a day (unless you’re approved to leave) throughout the course of your sentence. Electronic Home Monitoring may be preferable to you over traditional incarceration because it enables you to serve your time in your home while still being able to carry out other tasks like working or grocery shopping.

After the most recent legislative session, the governor signed a couple of bills that affects defendants in this state. One of these bills, Engrossed House Bill 1943, was effective in July of this year.

Section 2 (6) (a) of the legislation requires a court to deny a plea deal or release allowing home detention if the court finds that you have previously violated the terms of a home detention program (and that the violation was not minor). The law gives the court discretion to deny a home detention program if your violation was “technical, minor, or nonsubstantive.” What this means is that if you have previously entered into EHM but not followed the rules, the court will no longer even have the option of allowing it in your case unless it was a minor violation.

Supervision Over Monitoring Agency 

When you are being monitored on EHM, you choose a private provider as your monitoring agency. The county or municipality supervise your provider to ensure that they are doing their job properly. Monitoring agencies must place in a conspicuous location a notice of criminal penalties if you violate the terms and conditions of your home detention program.

The new law requires that your EHM provider notify the relevant authorities if they cannot account for you for 24 hours. The law requires that notification also be provided to “the probation department, the prosecuting attorney, local law enforcement, [and] the local detention facility.”

The EHM provider must notify the supervising agency of any known violation of the law or court order. So even though you are serving your time at home, you must still follow all conditions of your release. EHM providers are now required to verify in-person that you are actually at home, on a random basis, at least once per month. The law also makes clear that you cannot procure your monitoring from individuals who you have a personal association with.

Leaving Home 

You can leave your residence for specific purposes only during EHM as ordered by the court. Common purposes include: “school, employment, treatment, counseling, programming, or other activities from which a court may select.” But when in doubt, call your EHM provider.

Posted in DUI

Driving Under the Influence of Marijuana

In 2012, the States of Washington and Colorado legalized the consumption of marijuana for recreational purposes. One of the components of the legislation in Washington State included provisions on driving under the influence of marijuana. These new laws place marijuana under the same regulatory scheme as alcohol, which I believe is a mistake, particularly for the offense of driving under the influence.

Marijuana DUIs
Washington State defines the offense of driving under the influence of marijuana under 46.61.502, which establishes a legal limit similar to alcohol utilizing the concentration of delta-9 tetrahydrocannabinol (THC) content per milliliter of a person’s whole blood. (THC is the chemical compound associated primarily with the psychoactive effects of ingesting cannabis.)

According to 46.61.502(1)(b), if within two hours of operating a vehicle, your blood test comes back with a THC concentration of 5.0 ng/ml or higher (nanograms per milliliter of whole blood), you have violated the statute and committed a DUI.

After smoking, THC levels rise to approximately 150 ng/ml blood. Within the first hour these levels drop dramatically to about 15, and continues on a steady decline. On average, it takes between two and a half and three hours after smoking for your blood levels to return to the legal limit.

Follow the Law
Now, I know what you may be thinking, The National Highway Traffic Safety Association just recently stated in February of this year that with regard to psychoactive drugs, “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.” And this is where I believe these new laws will need to be changed because regulating marijuana like it is alcohol.

While having a BAC of 0.05% or higher increases your chances of being in a collision by almost six, consuming marijuana has no statistical influence positively or negatively with your risk of being involved in an automobile crash (when adjusting for the drivers, age, gender, race, and consumption of alcohol). But that’s not to say that marijuana could not impair your driving; just that the presence of THC in your system does not correlate with impairment the way that alcohol blood concentration levels do.

But regardless of whether marijuana does impair your driving, it is important to always follow the law.

How Can I Follow the Law If I’m Always Above the Legal Limit?
The NHTSA study notes that “Most psychoactive drugs are chemically complex molecules, whose absorption, action, and elimination from the body are difficult to predict, and considerable differences exist between individuals with regard to the rates with which these processes occur. Alcohol, in comparison, is more predictable. A strong relationship between alcohol concentration and impairment has been established, as has the correlation between alcohol concentration and crash risk.”

Marijuana does not metabolize in a predictable manner like alcohol. Moreover, if you regularly consume marijuana, your blood levels may be in excess of the limit because marijuana stays in your bloodstream long after you have consumed it. How you consume your marijuana will also affect your blood concentration levels and impairment. So it’s important to always monitor your consumption.

The new DUI laws for marijuana will likely affect innocent drivers, which will certainly be the subject of litigation for years to come if the legislature continues to treat marijuana as alcohol.

Picking a Good DUI Attorney

Getting charged with Driving Under the Influence is a serious crime that has very significant consequences. A DUI interrupts everything in your life and its affects range from your family, criminal record, driving record, personal finances, even to your current/future employment prospects. Moreover, the Washington State Legislature passed legislation in the most recent session that will increase the punishment on offenders and make the consequences more permanent, making the choice of proper legal representation all the more important.

What Would I Look For in My Attorney?

Zealous Advocate
If you were to ask me what I think is the single most important thing to look for in an attorney, it would be someone who will zealously advocate on your behalf throughout all stages in court proceedings. Having effective representation means having a competent attorney who is devoted to learning about the area of law that they practice. So the first thing I’d look for from a prospective DUI attorney is whether or not they are dedicated to learning the science and methodology of proper DUI defense, and the best way of making that determination is by asking: are they a member of the National College for DUI Defense?

Competent and Knowledgeable
An effective attorney is one who learns how to do their own job but also police officers. Members of the NCDD are required to attend a seminar once every two years to stay current on new developments in the field including technological advancements and defense strategies. This includes learning the proper administration of standard field sobriety tests according to Federal guidelines; functionality of the instruments utilized to test an individual’s sobriety; as well as the proper evidentiary standards for lab record keeping. The NCDD helps a legal practitioner establish a minimum level of competency by ensuring that the attorney is kept abreast of the developments in their field.

Active with local courts
However, in addition to having the knowledge necessary to practice criminal law in the subfield of DUI defense, an effective criminal defense attorney knows how to form productive relationships. Every district has its own local rules and staff, so a good attorney is one who is familiar with all of the pertinent local courts, prosecutors, and judges because they have worked to establish those relationships. Establishing effective working relationships with the other side is key to criminal law defense because they enable an attorney to provide the best available information to you and in due course, to help you decide how best to navigate your case.

Experienced
Finally, I look for how long and how much of an attorney’s practice has been devoted to criminal law and DUI defense. Those who have substantively worked in this field will have acquired the knowledge and formed the personal relationships necessary to leverage the best outcomes on behalf of their clients. I would look for an attorney who has worked against the other side long enough that the prosecution knows that they don’t want to try the case against this lawyer.

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