Fox Speaks to 300 Lawyers about New Breath Test Machine

Washington State DUI police officers will have a new breath test machine to use in processing folks they have arrested for DUI: The Draeger 9510. There is not much “official” information about this machine available, but I was able to glean quite a bit of useful information from over 2,000 pages of information (emails, prototype testing, etc) I had received from the state via a Public Records Request. I was honored to be the last speaker on the schedule at the 2010 annual Seattle seminar “Defending DUIs,” which was attended by over three hundred attorneys. My presentation covered the history of breath test machines in Washington State, all the way from the Harger Drunkometer (1950′s DUI technology) through the Breathalyzer, then the various versions of the DataMaster, to the current Draeger 9510. The Draeger has been approved for use in DUI arrests in Washington State but not yet deployed for use as the operating software is undergoing final “tweaks” before deployment into the field. Giving this presentation was somewhat “deja vu” since I gave a similar presentation in in Seattle 1987 to over three hundred lawyers regarding the novel technology of the DataMaster breath testing machine, which at that time was being depolyed in Washington State and then was a mystery to most DUI defense attorneys.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
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Another Ambien DUI, This Time a Cop?

Washington State DUI defense attorneys are seeing more and more “drug DUI” arrests. A number of these incidents occur after a driver takes a sleeping pill (Ambien is commonly involved) and then remains awake instead of falling asleep. Such a person has an impaired ability to drive, but might not even know that he is driving. Alternatively, a person might take a sleeping pill and wake up while the effects of the drug are still affecting the brain. We don’t know exactly what happened, but according to news media accounts, a police officer in Florida found herself charged with DUI after, she says, she “took an extra sleeping pill.” Here’s the story.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
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What Is The Range of Error On Your Breath Test?

A DUI arrest in Seattle or elsewhere in Washington State will usually include the administration of a breath test at the police station on the BAC DataMaster breath test machine. The breath test document has two results, corresponding to the individual blowing twice, as required, into the machine. If the readings are .08 or higher, that is “per se” evidence of the crime  of DUI. As an attorney defending DUIs for thirty years, I know that the actual numbers on that breath test document are really just approximations of the true breath alcohol in a person’s body. Just because the breath test ticket says something doesn’t make it true. The Washington State Toxicologist has finally confirmed on a website what everyone associated with DUI arrests in Seattle and elsewhere has known for years: all breath test readings have a corresponding factor of “uncertainty” that must be reported in order that the numbers on the breath test document may be honestly interpreted in court. Here’s a link to the website reporting the “uncertainty” of breath test measurements: WSP Forensic Laboratory Services.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
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Sleep Deprivation and DUI Field Sobriety Tests

It is standard procedure in every DUI arrest in King County or elsewhere in the state of Washington for field sobriety tests to be administered, if conditions permit. There are a variety of factors that can influence the ability of a driver suspected of DUI to perform field sobriety tests. These can include the age of the driver, weather conditions, emotional conditions (nervousness, stress) and of course, the physical location of the tests. For instance, it is quite common for officers to administer field sobriety tests to a DUI suspect by the side of a freeway, while traffic is whizzing by at 60 miles per hour or faster. The noise and buffeting from the wind produced as cars and trucks speed by is impressive and distracting. Performance on the DUI field sobriety tests, especially balance tests, can also be impacted by lack of sleep. There has been some study of the impact of sleep deprivation on balance. A study entitled “Postural Control After a Night Without Sleep” (Fabbri, Martoni, et. al., Neuropsychologia 44 (2006) concluded that “sway” observed during the administration of the Romberg Test (a common DUI Field sobriety test) was measurably more pronounced in sober subjects after what the researchers called “twelve hours of nocturnal forced wakefulness.” Common sense of course tells us what the study confirmed –field sobriety tests that attempt to measure balance, coordination, and mental acuity, may or may not be valid indicators of intoxication in a DUI suspect. For the DUI field sobriety tests to mean anything, one must eliminate or account for other (non-DUI) factors that impair the ability to perform field sobriety tests.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
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Under .08 But Still Arrested for DUI?

As you drive throughout Washington State, you will see signs saying “DUI .08″ limit enforced, and the like. Everybody has heard that the “limit” is .08, but most people don’t know that you can be charged with DUI even if the test reading is under .08. This situation was recently discussed in connection with the tragic story of a woman who drank some beer at a monster truck show and later was involved in an accident that killed her two kids, as reported by the website for KIRO news. Although her test result was under .08, she is facing prison time for vehicular homocide premised upon DUI.
Washington State’s DUI law sets forth the ways a person can be convicted of DUI:

RCW 46.61.502
Driving under the influence.

(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:

(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

In my years of handling DUI cases in Seattle and elsewhere in Washington State, I have represented a number of folks who succeeded in limiting the number of drinks so that they would not violate the .08 limit, only to find that they can still be charged with DUI on the theory that they were “under the influence” of alcohol. The more accurate roadsigns tell drivers: “Don’t drink and drive.” This advice reflects the fact that in Washington State, anyone who drinks any alcohol and then drives might later find themselves defending a DUI charge in court.

Update: After a trial on the charges of DUI/Vehicular Homicide, the mother referenced above was acquitted of all charges. See the story here.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
Click below if you wish to speak to Jon Scott Fox, an experienced DUI defense attorney. Google Voice will call the number you indicate and connect you. Thank you for calling.

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Switching Seats is a DUI?

A DUI police officer saw a car weaving down the highway and stopped it. Once the car was stopped, Ellen Rix, who was in the passenger seat, switched places with Veselina Stoilova, who was the driver. Later, Ellen would testify that she did this because Veselina she knew that Veselina had a suspended license and Ellen was afraid that Veselina would be deported. The officer determined that Ellen was drunk and arrested her for DUI although she had not driven the car and did not touch the wheel or any mechanical part of the car (however the car was running.) Was Ellen guilty of DUI? The Virginia Court of Appeals affirmed the trial court’s finding that Ellen was guilty of “operating a motor vehicle” under the influence of alcohol under Virginia law, reasoning that “Rita seized actual physical control of the vehicle when she switched seats with Stoilova in an effort to represent herself as the operator of the vehicle.” She was “keeping the car in restraint or in position to regulate its movements.” In other words, she was “regulating the movement of the vehicle” by sitting in the driver’s seat and not making it move forward. Sounds like a stretch. Although it should not have been a factor, the fact that Ellen had a prior DUI might have played a part in the court’s ultimate finding.

Could this scenario result in a DUI conviction under Washington law? Washington DUI law criminalizes not only drunk driving but also being “in physical control of a motor vehicle” while under the influence of alcohol. (RCW 46.61.504) That statute reads in pertinent part as follows:

RCW 46.61.504
Physical control of vehicle under the influence.

(1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state:

(a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or

(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or

(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.

There is no reported DUI decision in Washington State jurisprudence dealing with this specific factual scenario. However, the Virginia case was not a jury trial; the DUI defense attorney tried this as a “bench trial” where a judge, not a jury, decides guilt or innocence. (Some states only allow a bench trial for a DUI case – in Washington State a citizen accused of DUI is entiteld to a jury trial as a state constitutional right.) In Washington State, an experienced Seattle DUI attorney would almost certainly argue such a case to a jury who would be more likely to determine that the facts of this case do not amount to the crime of DUI.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
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DUI Jurisdiction to Stop Discussed

Every day, Washington and King County DUI defense attorneys raise issues in court involving unique factual situations wherein the power of a DUI officer to detain and arrest an individual is challenged. Such a challenge may occur, for instance when a Seattle DUI police officer makes an arrest outside of his jurisdiction. In such a case, a Seattle DUI defense attorney will likely argue to the court that the prosecution must show proof of the officer’s authority to make the traffic stop and perform the subsequent DUI investigation. The Washington State Supreme Court issued an opinion on October 14, 2010, dealing with a variation of this issue. The case of State v. Ericksen (No. 80653) dealt with the issue whether a Lummi Nation tribal police officer, patrolling on reservation, who witnessed a vehicle drift across the center divider with its high beams activated could pursue the vehicle across the reservation border and then detain the driver on suspicion of DUI. The court ruled that tribal officers have authority to stop and detain offenders on reservation under prior court rulings, and further, that the doctrine of “fresh pursuit” extends this authority to justify a DUI stop made off the reservation so long as the “offense” occurred on the reservation. The court concluded its decision with the following statement: “Our decision today harmonizes with common sense and sound policy. To allow drunk drivers to escape the law by crossing a reservation boundary would unnecessarily endanger lives by incentivizing high-speed dashes for the border. We decline to embrace such a ludicrous result.” History has shown, particularly for DUI cases, that public policy often plays a large part in determining the establishment of legal precedent.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
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Justifying a Seattle DUI Stop – The Big Twenty Four

The Federal government commissioned a study to determine what “behaviors” were “typical” of a driver who is DUI. The report, “The Detection of DUI at BACs Below .010″ was published in 1997 and is still used in training Seattle DUI officers (and other agencies as well.) Any Seattle DUI attorney must be familiar with this and other studies as well in order to effectively represent someone accused of DUI. Many of the twenty-four ”clues” are driving behaviors that are also exhibited by completely sober people. Below is the list:

1.   Weaving.
2.   Weaving across lane lines.
3.   Straddling a lane line.
4.   Turning with a wide radius.
5.   Almost striking object or vehicle.
6.   Swerving.
7.   Drifting.
8.   Stopping problems.
9.   Accelerating or decelerating for no apparent reason.
10. Varying speed.
11.  Slow speed.
12.  Driving in opposing lanes or the wrong way.
13.  Slow response to traffic signals.
14.  Slow/failure to respond to an officer.
15. Stopping in lane for no reason.
16. Driving without headlights at night.
17. Failure to signal or inconsistent signals.
19. Following too closely.
20. Improper or unsafe lane change.
21. Illegal or improper turn.
22. Driving on other than designated roadway.
23. Stopping inappropriately in response to an officer.
24. Appearing to be impaired.

If you or a loved one needs help with a Seattle DUI or a DUI charge anywhere in Washington State, contact Seattle DUI attorney Jon Scott Fox.
Click below if you wish to speak to Jon Scott Fox, an experienced DUI defense attorney. Google Voice will call the number you indicate and connect you. Thank you for calling.

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How is the New DUI Machine Different?

In 2011, a new DUI breath test machine, the Draeger 9510, will be deployed for use in Washington State DUI arrests. This new device will replace the BAC DataMaster, Washington State’s current DUI tester. The DataMaster is now so old that it is no longer manufactured and replacement parts are no longer available. The Draeger 9510 will cost about $10,000 per unit, and the State plans to deploy hundreds of these DUI testers in all areas of the state. A few notable facts about the Draeger:

- Whereas the DataMaster produces tests two breath samples and produces two readings, the Draeger tests two breath samples TWICE, thus producing four test results.

-The breath test document of the DataMaster contained only the test readings and a bit of other data. The Draeger is capable of producing a printout with graphs of the “breath profile,” which would show how long an individual blew, and also the “uncertainty” calculation for the readings.

- The DataMaster uses Infrared Spectrometry (I/R) to quantify alcohol. The Draeger uses I/R and in addition tests each breath sample using “electrochemical” (E/C).

-The DataMaster’s I/R system measures a frequencyof infrared light associated with the Carbon/Hydrogen bond of the ethyl alcohol molecule. The Draeger’s I/R system measures the Carbon/Oxygen bond of the ethyl alcohol molecule.

- The police officer operating the DataMaster must type in all date identifying the subject, date of incident, etc. The Draeger will have a card swype device that will read the data from a driver’s license and also the operator’s permit card.

The bid specifications for Washington State’s new DUI breath testing machine are quite lengthy and the Draeger was required to be capable of complying with the bid requirements. We will learn much more about this new breath testing device as it continues in development and modification for use in this state.

If you or a friend have been arrested for DUI, contact the Seattle and Bellevue DUI lawyer Jon Scott Fox at (425) 395-4384 or (425) 395-4DUI.

Click below if you wish to speak to Jon Scott Fox, an experienced DUI defense attorney. Google Voice will call the number you indicate and connect you. Thank you for calling.

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New Breath Test Machine approved for Washington State

Draeger 9510

A Washington State DUI attorney must be familiar with the technology and science used in prosecuting DUI charges. Currently, the authorities are considering whether or not to deploy a new breath test device for use in DUI arrests in Washingon state – the Draeger 9510. The Washington State Toxicologist is empowered to approve the use of such devices and issues a public statement of approval by amending the Washington Administrative Code. On September 16, 2010, the Toxicologist has spoken: The Draeger 9510 is now approved for use in Washington State. The same published notice amends other sections of the DUI Administrative Codes (WAC 448-16) to conform with the way the new machine works, such as: (1) A “gas standard” will be used instead of the liquid “external standard” currently used by the DataMaster and (2) the operator will input data either by using a keyboard or by swiping a magnetic card and the driver’s license through a reader in the machine. There are, of course, other major changes in procedure and technology resulting from the eventual deployment of the new DUI breath test machine. Those will be discussed in future blogs as the particulars of the new breath test protocols are settled.

If you or a friend have been arrested for DUI, contact the Seattle and Bellevue DUI lawyer Jon Scott Fox at (425) 395-4384 or (425) 395-4DUI.

Click below if you wish to speak to an experienced DUI defense attorney. Google Voice will call the number you indicate and connect you. Thank you for calling.

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