THE DO'S AND DON'T'S OF A DUI PROSECUTION
by Russell M. Aoki

     Being stopped and investigated for a DUI is a frightening experience. Our office handles many Driving Under the Influence cases and is dedicated to helping people facing DUI prosecutions understand the process and their rights in these complicated cases. The following information is provided to assist you if you have been stopped for a DUI or want to know what to do if you are stopped by the police in the future. To better understand your specific case, please consult an attorney who is experienced in DUI defense, like the attorneys at Aoki & Sakamoto LLP.

Criminal Investigation

1.  Do be polite and cooperative but don't answer questions pertaining to your drinking or driving.

     Always be polite when dealing with a police officer, especially if the officer is investigating you for Driving Under the Influence. Give your name and identifying information but exercise your right to remain silent when asked any other questions. 

     Officers frequently question drivers regarding how much they had to drink, where they were drinking and whether they feel impaired. Each answer may be used in a later prosecution. Telling an officer that you feel that your driving may have been impaired will be devastating to any defense. It is best to exercise your right to remain silent.

2. Don't take the Field Sobriety Tests.

     When asked to step out of your vehicle to take the field sobriety tests, it may feel like you have no choice in the matter. In truth, the field sobriety tests are voluntary. The tests are supposed to determine your balance and agility but they are also used to determine your ability to follow instructions. Very few people ever "pass" the field sobriety tests.

     In reality, balance, agility and your ability to follow instructions are often impaired by your surroundings. Drivers are often nervous because they have been pulled over by a police officer. The stop may have taken place on loose gravel or on an incline or on the shoulder of a busy road. If it is late at night, it may be cold and the driver may be shivering. Bright, overhead flashing lights of a patrol car as well as headlights from passing vehicles could also contribute to a person's inability to maintain balance. All these factors can combine to hamper one's ability to successfully perform any agility test as instructed. 

     We recommend not taking any field sobriety tests. At trial, the prosecution may be able to comment on your refusal to take the field sobriety tests, but refusing to take these tests does not routinely lead to an enhanced penalty by either the Department of Licensing or the court.

3. Do take the BAC breath test.

     Take the BAC breath test when asked to do so following your arrest and transportation to the police station. The penalties for not taking the breath test frequently outweigh the penalty for having an alcohol level of over .08. If you refuse, you lose your license for a year. Once you refuse, you cannot even obtain a special occupational license to let you drive to work. 

     In addition, a refusal to take a breath test will be considered the equivalent of a breath test reading of .15 or higher for purposes of the penalties you will face. Under Washington's DUI statute, a person who has a breath test of .08 to just less than .15 must serve a mandatory minimum sentence of one day in jail for a first offense. If a breath test is .15 or higher, the mandatory minimum sentence is two days in jail. If you refuse the breath test, you may have increased your mandatory minimum sentence by an extra day. 

     For most of our clients, the ability to drive is much more valuable than increasing the risk of a DUI conviction. Unless you can live without driving for a year, take the BAC breath test.

4. Don't take the Portable Breath Test (PBT)

     While it is always best to take the official BAC breath test (see above) police officers in Washington State may ask you for a breath sample at the place you were pulled over. This is not the official BAC breath test that will be used in a DUI prosecution against you. Any breath test performed at the scene will be a Portable Breath Test or "PBT"-a small, hand held device with a tube on the side. This PBT is not the official breath testing device for Washington State. Giving a breath sample for a PBT is voluntary and a refusal to do so does not cause you to lose your license.

     The official breath testing device for Washington is the Datamaster. This is a larger machine with a computer keyboard. The Datamaster is kept in a police station. The Datamaster is the only breath test that can be used in prosecution of a DUI. 

     In contrast, the PBT is inadmissible to prove a case of DUI at trial, but evidence of a PBT reading can be used to establish "probable cause" for a later DUI arrest, so it is best not to blow into it. Most people are not aware of the difference between the PBT and the Datamaster and the investigating officer may not make the difference clear. 

     If you are confused about which device you are being asked to blow into, ask the officer to clarify whether this is the official breath test and whether refusing to give a breath sample will cause you to lose your license. Any breath test you are asked to perform at the scene of the stop will not be the official breath testing instrument.

Things To Do After Being Released from the Police

1. If you have submitted to a breath test, then go immediately to a hospital and ask for a blood test.

     BAC breath test technology has come under fire ever since its introduction of the Datamaster breath test machine in Washington in 1987. Questions about the Datamaster's reliability and satisfactory maintenance periodically surface. To ensure that your BAC breath test gave an accurate reading of your breath alcohol level, your test results should be compared with your blood alcohol level. The only way to determine your blood alcohol level is through a blood draw. Do not tell the police that you are going to get a blood test. Simply go directly to a hospital after your release from police custody and request a blood draw. The physician or nurse administering the blood test will not tell you the results. However, upon retaining counsel, the hospital will likely be willing to release that information to your attorney.

2. Check the paperwork the police handed you on your way out of the station.

     State statute requires that if a person is cited (that is, being handed a citation) for Driving Under the Influence, they must appear in court within 24 hours. Often, because of the confusion occurring from an arrest, it may not be apparent that a mandatory arraignment will take place as early as the next morning. Check your paperwork carefully to see whether you need to appear in court. 

     Some law enforcement agencies will not immediately cite a DUI driver. Instead, the agency will have the prosecutor's office notify you of your arraignment by mail. It is not unusual to have to wait several weeks to several months for your notice to arrive. Make sure the arresting officer has your correct mailing address. The prosecutor's office will rely on the mailing information you give to the officer. It is not obligated to investigate your current address, only to rely on the information you provide or the address on your driver's license. 

3. Make Sure You Have a Department of Licensing Hearing Request Form

     When you are arrested for Driving Under the Influence and your breath or blood alcohol level is .08 or higher, the Department of Licensing has authority, independent of the court, to suspend your license for 90 days. You can challenge your suspension by requesting a hearing with the Department of Licensing and submitting a check for $100. You have 30 days from the date of your stop to request such a hearing. The Department of Licensing then has 60 days from your stop to hold your hearing. If you elect to file your Notice of Hearing on the 30th day from your stop, then the Department of Licensing only has 30 days to schedule your hearing. If the Department of Licensing is unable to schedule your hearing within 60 days from your stop, then you have a right to have your license suspension dismissed.

Get An Attorney Right Away

     Even if you were not cited for Driving Under the Influence on the day of your stop, it is important that you seek counsel immediately. DUI prosecutions have become very complicated in most states, especially Washington. There are many technical issues pertaining to the use of the BAC breath test and the introduction of blood tests. There are also a number of issues pertaining to your Department of Licensing hearing as well as options you might want to immediately consider before your DUI prosecution begins.

     Consider a law firm, like Aoki & Sakamoto LLP, which has experience in defending DUI prosecutions. We are knowledgeable in trial work, plea negotiations and utilizing alternative dispositions.

     If you have any questions pertaining to a DUI, please contact us through the form on this Website or feel free to call Russell M. Aoki at (206) 624-1900.

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