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Drunk Driving Defense–40 Years in Retrospect

Posted by Unknown | Mar 04, 2014 | 0 Comments

1968 was the most important year of my legal career.  I graduated from law school, passed the bar exam, and the people of the state of Washington passed Initiative 242, the implied consent law.  I immediately understood the significance of the first two events.  However, the import of the election would not become clear to me for quite some time.

I have been involved in DUI litigation for over 37 years; five years as a rookie lawyer, followed by four years as a prosecutor, five more years in general criminal defense practice, including two murder cases, various other felony cases and a substantial DUI practice, and nearly a quarter century devoted exclusively to defending DUIs.

The public, judicial and prosecutorial attitude towards drunk driving was remarkably different in the early days of my practice, as was the technology and the grasp by both prosecutors and defense lawyers of the unbelievably complex science that applies to this extraordinarily complicated crime.  In essence, knowledge of the science was virtually nonexistent, and the attitudes of the court, the prosecutor and the defense was to attempt to work together to make the system as painless as possible for the (normally) good citizen who had been arrested.

One must recall that back then it was illegal to drive while under the influence of intoxicants regardless of the person's alcohol level.  However it was presumed that the person was intoxicated if his or her blood alcohol content was above a 0.15!  That is double what is now illegal. A 0.15 is the equivalent of a 180 pound man consuming 8 beers, almost two bottles of wine, or almost a half of a fifth of 80 proof whiskey in the course of three hours!

If the alcohol test was between a 0.05 and a 0.15 there was no presumption, and if the test was below a 0.05, the driver was presumed NOT to be under the influence.  These standards were established as a result of research conducted by the American Medical Association.  Eventually, the presumptive level of intoxication was lowered to 0.10 blood alcohol, but the culture of “helping the defendant through the system” endured.  Indeed, the late ‘60's and early ‘70's were a time in which the entire criminal justice system, probably spurred on by the Supreme Court under Earl Warren, was focused much more on rehabilitation of criminal defendants than on punishment.

Regardless of the reader's views on those “liberal” times, out of them came one of the more enlightened and ultimately helpful pieces of legislation in the history of DUI laws.  In 1975, the Washington legislature enacted RCW 10.05, the Deferred Prosecution Act, which provided for those accused of DUI to avoid the consequences of conviction by going through a two year alcoholism (or drug or mental health) treatment program.  Unfortunately there were few guidelines as to the nature of the treatment program, and many abuses occurred, including multiple deferred prosecutions for the same person and “treatment programs” that were little more than alcohol awareness classes.  Because of that the viability of deferred prosecution was seriously compromised.

Indeed, as MADD gained political popularity, and coincident power, there were annual attempts to repeal deferred prosecution.  The Washington State Traffic Safety Commission even commissioned a study of deferred prosecution with the expectation and hope that the study would prove to be the death knell of the program.  Much to the surprise and some would even say chagrin of the Commission, the study proved exactly the opposite; that deferred prosecution was a successful means of preventing recidivism, and that the abuses of the program were not nearly as pervasive as believed.  After fine tuning the program in 1985 and eliminating many of the abuses that remained, deferred prosecution continued as a viable option for those accused of DUI to deal with a health problem and a legal problem, while at the same time dealing effectively with the problems created by repeat drunk drivers.

The power of MADD, and the swinging of the pendulum away from the “lenient” ‘60's and ‘70's directly impacted DUI enforcement.  In 1979, the legal limit was reduced to 0.10, mandatory jail sentences were imposed, even on first offenders, and the penalties for Physical Control of a Vehicle While Intoxicated were made identical to those for DUI.  Previously Physical Control had been the plea bargain of choice for those charged with DUI since that charge did not carry with it a license suspension.  The 1979 legislation did, however, allow the court to recommend against a license suspension which was binding on the Department of Licensing, but that authority was short lived, and all persons convicted of DUI or Physical Control received license suspensions.

The 1979 legislation unquestionably provided the impetus for THE seminal change in DUI defense.  Instead of working together, the defense, the prosecution and the judges were now at loggerheads, GLARING at each other, and definitely no longer working together.  I am not suggesting that from a societal point of view that the change was a bad one.  But the culture, and the practice of DUI defense, would never be the same.

As an aside, some of the attempts at making the DUI laws “tougher” backfired.  For example, when the Legislature appended a license suspension for Physical Control, there was no attempt to reform the court system to accommodate more trials.  Prosecutors still had to plea bargain but there was no longer a suitable lesser offense.  The result was that the new plea bargain of choice became Negligent Driving, which, while designated as a misdemeanor had a maximum penalty of a $250 fine!  No jail, no license suspension, no “hammer” to require compliance with court-ordered conditions of probation, and not even an alcohol related offense on the driving record!

Because of the cultural change, the practice of “quality” DUI defense also changed dramatically.  Indeed, “quality” DUI defense was now demanded. There was no question that the stakes of a DUI charge had been elevated, again, and there was no question that DUI defense lawyers had to raise the bar in terms of understanding the science of DUI, and by committing to their clients the time, expertise and commitment that had never before been required.

Fortunately for Washington defense lawyers, these dramatic changes in the law and practice of DUI defense coincided with a national movement of DUI defense lawyers to unite in an effort to share information, both legal, scientific and tactical.  This effort  culminated in the formation of the National College for DUI Defense, which has coordinated not only continuing legal education for lawyers who defend DUI cases, but has created an institution to educate and mentor DUI defense lawyers throughout the country.

But the enactments of 1979 were just the beginning.

Arguably the most significant piece of legislation to affect DUI occurred in 1986 when the legislature abandoned the presumption standard in favor of a per se standard and changed from a prohibited blood alcohol level to a prohibited breath alcohol.  This could only be characterized as an admission by the state that they could not scientifically deal with breath testing, and a concession that they had been dealing with breath testing in a scientifically dishonest manner.

It goes without saying that breath alcohol does not affect driving ability.  Only alcohol that gets to the brain through the blood stream impairs.  However, the concentration of alcohol in the blood is, on the average, 2100 times greater than it is in the breath. So a breath testing machine measures the alcohol in the breath and multiplies it by 2100 times to obtain a blood alcohol measurement.

The problem is that the 2100:1 ratio is an average and people vary in that correlation (called a partition ratio).  Studies have measured people to have correlations as low as 1100:1, so the machine should only be multiplying by that factor.  Accordingly, the measurement by the machine is reporting double the true blood alcohol content.  Good enough for government work!

During the same time the State actually did two things that were scientifically sound.  First, they replaced the aging and discredited Breathalyzer 900A with the BAC Verifier DataMaster, which utilized a much more scientifically accepted analytical process.  However, the DataMaster was a prototype designed for Washington, and it placed last out of the competing machines in the tests completed on them.  However the state did change the protocol for conducting a breath test by requiring the driver to provide two separate breath samples, the only way that an analysis can have any scientific credibility.

Unfortunately for the state, the process by which the new machines were approved was seriously flawed and tests results were suppressed in good portions of the state for three years.

In 1994, the next major legislative change occurred; the Omnibus Drunk Driving Act, not surprisingly known as the ODD Act.  The ODD Act introduced an entirely new sentencing scheme into DUI prosecutions, calling for enhanced penalties for elevated breath test results and prior offenses.  And, out of frustration with the criminal justice system, the new sentencing scheme counted as prior offenses those convictions that resulted from a plea bargain from an original charge of DUI.  It substantially increased mandatory minimum jail sentences on repeat offenses, as well as the length of license suspensions, and treated breath test refusals as high breath test results for sentencing purposes.

Additionally, as a further concession that the government could not convict people utilizing valid scientific concepts, the law was changed to make it illegal to drive with an alcohol concentration above a 0.10, as measured within two hours of driving!  In other words the government again threw in the towel on being able scientifically to prove the crime that was intended to be punished…that is driving with a prohibited alcohol concentration.  The typical governmental response is if we can't scientifically prove the crime, we'll ignore and eliminate the science!  Or worse, they will change the science.

That, of course is poppy rot!  The government's true complaint is that they can't scientifically prove, beyond a reasonable doubt, EVERY person accused of this crime.  And that not only is true, but it is the way our Founding Fathers intended it to be.

During the same time frame, negligent driving, previously the plea bargain of choice (since it carried no license suspension and no jail sentence possibility), became a jailable offense, and one that was designated as alcohol related.  This was the one truly intelligent change in the DUI scheme because it provided, for the first time since 1979 a suitable and appropriate lesser offense for plea bargaining purposes.

1999 brought yet again other major amendments to the DUI laws.  The two most significant changes occurred under threats from the federal government to withhold federal highway funds.  First, the per se alcohol level was lowered to the long sought for 0.08 level.  Now the 180 pound man referred to above would be guilty, irrespective of his level of sobriety, if he consumed five beers, one bottle of wine, or seven ounces of 80 proof whiskey over a three hour period.

Of far greater impact was the introduction of administrative license suspensions.  The law now provides that if a person has an alcohol test result over the legal limit that their license will be administratively suspended for at least 90 days, irrespective of what occurs in the criminal prosecution!  Even if the citizen is found not guilty!  Again, it is the criminal justice system saying, “These damned defense lawyers are getting too many people off, so we are going to suspend the license of any one accused of drunk driving, even if they are not guilty.”

Finally, the 1999 legislation made mandatory the installation of an ignition interlock device (IID) for anyone whose license is suspended as a result of a conviction or administrative proceeding.  An IID is a breath testing device installed in a vehicle.  The driver is required to blow into the device, and it must register under a 0.025 or the vehicle won't start.  It is mandatory any time the driver has an occupational type license, or if there is a DUI conviction it can be required for up to 10 years, depending on the driver's record.

One can be sure that the IID companies, who lobbied extensively for this legislation, were more than a little pleased with the result.

The most recent Legislative attempt to convict all those accused of drunk driving, and the most damning concession that the state toxicologist is simply incapable of utilizing breath test technology in a sound, scientific manner occurred in 2004 when, at the request of the state toxicologist, it enacted a provision that called for the courts and the DOL, when assessing challenges to breath or blood tests, to “assume the truth” of the government's testimony.  So much for the independence of the judiciary!  Not surprisingly, the defense bar challenged the legislation as an unconstitutional violation of the separation of powers, which has been extremely successful and resulted in the suppression of hundreds, if not thousands of breath tests around the state.  The case was argued in the state Supreme Court on October 27, 2005, so a ruling may very well be issued prior to the publication of this article.

There are more changes that are wanted by MADD and its allies.  Reducing the per se limit to 0.05 is continuously mentioned.   Felony DUIs for repeat offenders or those that have minors in the vehicle, and other legislation that will provide for additional enhanced jail penalties are currently before the Legislature, but it appears that a backlash may be developing.

In their zeal to make the DUI laws ever tougher, the advocates fail to consider the impact on the criminal justice system.  Simply put, the more draconian the consequences of conviction, the harder people fight to avoid them.  Back in the '60's and ‘70's DUIs were typically resolved with a single court appearance, there were rarely jury trials, and administrative hearings were only held for test refusals.  Now there is an administrative hearing in every DUI and it is typical to have at least three and often as many as five or six appearances before trial and virtually every case that is not resolved by plea bargain or deferred prosecution goes to a jury trial, which normally takes at least two court days.

The impact on the criminal justice system has been disastrous, particularly when recent fiscal shortfalls are considered.

No one supports drunk driving, but rationality must be placed back into our DUI statutory scheme.  If our firm had a client who got drunk and burglarized a store, and while making his getaway got pulled over and was charged with DUI, a gross misdemeanor, and Burglary, a felony, we would strongly consider a plea to the felony in exchange for dismissal of the DUI, because the mandatory minimum sentence and other consequences (license suspension, insurance costs, IID requirements and possible treatment or education) would be worse for the gross misdemeanor than the felony.

And that is wrong.  It is disproportional.  People are being punished for what they might have done rather than what they in fact did.

Because of the legislature's inability to leave the DUI laws alone, they have created more problems and more loopholes than they have solved or closed.  I firmly believe that if they had enacted the 1979 legislation, and done nothing else, other than provide for duplicate breath testing, the conviction rate over the past quarter century would be up by well over 100%!

But that's politics, and that's what happens when you try to deal with a social problem with criminal law.  But that's the subject of another paper.

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