April 2005

So You Think the Legal Limit is .08%? Think Again...
A Case in the Life of a DUI Defense Attorney
By Jeffrey D. Veitch

Daily, across this state, citizens who consider themselves law biding are finding out that they are considered criminals and are entering the zero tolerance dui system that has been borne of politics, bureaucracy and a steady decline in Prosecutorial discretion.

Many of these same people find that they have themselves supported stronger legislation without truly understanding the vast bureaucracy that their fellow citizens are dealing with. Like most people outside of the criminal justice system, they had little sympathy for those charged with a crime. The so-called “the criminal element.”

Most of us are instead merely comforted by the belief that, “They must have done something wrong or they would not have been arrested in the first place”…..Right??
Unfortunately, this is not always the truth.

Now, assume that you are Jane Doe. Jane Doe has never been in trouble before and has not had even a single speeding ticket.

Its 11:30 pm and Jane Doe is stopped for failing to signal. The officer approaches her car on the shoulder of I405, traffic is flying by and police lights remain flashing. He asks for her license. “Have you had anything to drink this evening?”
“Yes, I had some wine with dinner”
“How much?”
“I had 3 glasses earlier”
“Would you get out of the car please?” (The lights remain flashing and a second police car arrives on the scene).
“I want you to perform some field sobriety tests to see if you’re ok to drive.”
“Do I need to take them?”
“Well, if you don’t I will have to base my decision on what I have seen so fair and arrest you.”
“Ok.”

WALK AND TURN-I want you to stand with your left foot in front of your right, staying in that position until I tell you to start. I want you to walk heel to toe, in a straight line for nine steps, keeping your hands at your side. Then I want you to turn, keeping your left foot on the ground and pivoting around with your right foot and come back nine steps counting out loud.
Jane begins.
“I never told you to start yet.” (Jane stops).
Ok, now begin,

Results:
Started early
-Missed heel to toe by half an inch between step 5 and6 on the way up and between 3 and 4 on the way back.
- Used arms to balance.

ONE LEG STAND-I want you to stand on your left foot with your right foot approximately 6 inches off the ground. I want you to keep your eyes on your right foot, arms at your side and count out loud to 30 by thousands.

RESULTS:
Foot down at 14 and 26, counted too softly to be heard.

ROMBERG BALANCE-I want you to stand with your feet together, tilt your head back, close your eyes, keep your arms at your side and estimate 30 seconds in your mind. When you have estimated 30 seconds say stop
RESULTS:
Swayed slightly.
Estimated 30 seconds in 35 seconds.
Did not say stop, just opened eyes.

ABC’s -I want you to recite the abc’s, do not sing them.
RESULTS: Done as directed.

BACKWARDS COUNT- I want you to count backwards from 56 to 34.
RESULTS: Done as directed.

Jane is placed under arrest for DUI. Her car is impounded. She is transported in handcuffs to the police station, where she is asked to submit to a breath test. Jane remains fully cooperative, doing anything that the officer requests. The breath test consists of two samples taken independently. The test Results are .047 and .054.

The Officer’s opinion of intoxication is listed as obvious and her coordination as fair.

You thought the legal limit was .08? Think again. The officer will refer this case to the appropriate prosecuting authority for dui charges, and without a doubt, charges will be filed for DUI. You only had 3 drinks and believed that you were one of the responsible ones. You even stayed below the legal limit, how can this be happening?

In some jurisdictions, mandatory arraignment may take place in the jail the very next day. If you were released, a decision solely within the discretion of each officer, you must appear the next day where you will be asked to plea guilty or not guilty.

You are told that if you are convicted or plea guilty you face one year in jail and a $5000 fine. A mandatory minimum three-month suspension of your license. High risk insurance for 3 years. Five years probation. Additionally, you must serve at a minimum, 1 day in jail or 15 days home detention. A minimum fine of $685.00, plus a $125.00 BAC fee and a mandatory one year ignition interlock requirement, when you get the license back. You must also obtain an alcohol evaluation and follow any treatment recommended by the agency. Also, you must attend a dui victim’s panel. Now you realize that you must hire an attorney to defend you.

The problem is that since the officer knew you had consumed anything more than a taste of alcohol, with many officers there is very little chance that you would be released without first being taken in to give a breath test. Once you were arrested, the officer must record facts sufficient to have arrested you in the first place. If you are even close to the legal limit, they will prosecute you fully. I have personally seen many charges filed well under the legal limit.

Is it fair that someone can be responsible enough to stay under the legal limit and still be charged with dui? I don’t think so. However, the law does say that the state can convict you if you are over .08 and/or your ability to drive was appreciably affected.

Ironically, this does not mean that they have to show that your driving was affected, only that your ability to drive was affected according to the officer who arrested you.

If you are lucky, the prosecutor will offer a reduction to reckless driving or negligent driving in the first degree, or even second degree, but this is by no means a guarantee. Even so, both are criminal offenses. What about the fact that you hadn’t driven recklessly or negligently? Your informed that if you don’t accept a plea to one of these less serious crimes, you face all of the penalties listed above and the prosecutor has indicated that they will ask for more jail time than the mandatory 1 day if you go to trial.

In comes the jury. Most of them don’t know a strong dui case from a weak one. They walk in and see you sitting there. The prosecutor is laughing with the uniformed officer sitting with him at counsel table. The jurors look at you and say to themselves.

“I wonder what she did. She must have done something wrong; otherwise, she would not be here

JEFFREY VEITCH is a partner with firm of Veitch, Leo & Associate, LLP., in Bellevue and a former prosecuting attorney for the City of Seattle.