Should you take the Field Sobriety Tests?

Should a person agree to perform the Standardized Field Sobriety Tests (SFSTs)? That question has become even harder to answer after the decision of State v. Mecham. In the case, the officer asked Mecham if he would voluntarily agree to perform the SFSTs. Mecham, who was told the tests were voluntary, declined to perform the tests. A blood test was later taken that came back well below .08. At trial, the prosecutor argued that Mecham was guilty of DUI because he had refused to perform SFSTs tests, and only someone who knew they were guilty would refuse to perform the tests. The defense strongly disagreed and argued Mecham’s refusal to submit to a voluntary test should not be used against him, particularly when he was never told that if refused the tests, that his refusal would be used against him at trial.

On appeal, the Washington Supreme Court ruled that SFSTs are not a search and therefore, a person does not have a constitutional right to refuse the test. Because a person does not have a constitutional right to refuse, that a prosecutor can use a person’s refusal to perform the tests against the person at trial as consciousness of guilt. The court added that the SFSTs are a seizure, not a search, and that law enforcement can ask a person to perform the SFSTs after a person is already arrested for DUI (SFSTs are normally used to help an officer decide whether to arrest a person for DUI).

The decision leads to a lot of questions. If the SFSTs are a seizure, and a refusal to submit to the tests can be used against a person, can an officer force someone to submit to the SFSTs against their will, just like an officer can force someone to stand in a suspect lineup against their will? If a person refuses to perform the SFSTs can they be charged with the crime of Obstructing a Law Enforcement Officer similarly to when person refuses to put their hands behind their back when instructed? While the court stated a person does not have a constitutional right to refuse, the court added a person has a common law right to refuse. So presumably, the decision to submit to the SFSTs must still be voluntary and a refusal to submit should not expose a person to an additional criminal charge of obstructing.

Police officers routinely testify that they do not arrest everyone who agrees to perform the SFSTs and occasionally, a person’s performance on the SFSTs convinces the officer to let the person drive home without a DUI arrest. However, it is hard to find statistical evidence to support this. And it is not unheard of for people to perform “poorly” on the SFSTs who end up blowing well under .08 (.02 is the lowest breath test I have seen for a DUI arrest). Prior to having a suspect perform the SFSTs, the police offer instructions and briefly demonstrate the tests. However, this normally occurs on the side of a busy, loud, freeway. Moreover, the instruction does not inform the person what “clues” the officer is looking for. For instance, on the Walk and Turn and One Leg Stand test, the officer instructs the person “to keep their arms to their side.” If a person moves their arms more than six inches from their hip, this is considered a clue (despite the fact that the person may assume having their hands a little more than six inches from their hip is keeping their arms to their side, just as instructed). This is one reason most attorneys advise people to decline to take the the SFSTs regardless of how much or little alcohol they have had to drink. But after the Mechum decision, it appears you are damned if you do, and damned if you don’t.

The different types of deferrals under Washington law

The general premise of a deferral in the criminal justice system is simple; stay out of trouble for a period of time, complete whatever conditions are imposed (treatment, fines, ect.), and the charges against you get dismissed. Under Washington law, there are many forms of a deferral but the specifics of each deferral can vary greatly depending on which particular deferral is being used. The following provides a brief summary of the various deferrals that are available under Washington law:

Deferred Prosecutions
A deferred prosecution is the most intense and lengthy form of deferral under Washington law. The details of the program are specified in RCW 10.05, with the most onerous requirement being a two year chemical dependency or mental health treatment program. By statute, the person must remain crime free for a minimum period of five years before the case is dismissed. While a person can technically enter a deferred prosecution on just about any type of gross misdemeanor or misdemeanor offense, typically, people utilize the deferred prosecution on a DUI offense. The one catch is a person can only have one deferred prosecution on a DUI offense (or any RCW title 46 vehicle offense) in their entire life. So it is common for people to use their one deferred prosecution, and the two years of treatment, on a second or third DUI offense. While the deferred prosecution on a DUI offense will ultimately end in a dismissed charge if successfully completed, the Department of Licensing (DOL) still requires an ignition interlock on a person’s vehicle for a minimum of one year (or five or ten years, depending on the person’s criminal history). And even after the DUI is dismissed, it still counts as a prior DUI conviction for sentencing purposes if the person ever gets charged with another DUI. The DUI offense will also appear on the person’s driving record, for life, even after the court dismisses the charge.

Deferred Sentences
Deferred Sentences are available on any gross misdemeanor or misdemeanor offense under Washington law (except DUI and Physical Control) and are governed by RCW 3.66.067. Unlike a deferred prosecution, which has conditions set by statute that cannot be waived by the judge, the terms of a deferred sentence are left to the discretion of the judge. The only statutory requirement is that the length of the deferred sentence cannot be more than two years. A person cannot receive a deferred sentence on a charge of DUI or Physical Control, but they can if the charge is reduced (to say, a Reckless Driving or Negligent Driving). However, just as the case with deferred prosecution, DOL still treats a deferred sentence as a conviction. So it still goes on a person’s driving record and still imposes whatever driver’s license suspension would come if the sentence was suspended (not deferred). In other words, the deferred sentence is treated as a conviction in every conceivable way except that it does result in a dismissed charge.

Deferred Finding
A deferred finding is only available on infractions (like a speeding ticket). It is not available for a criminal offense. A deferred finding is governed by RCW 46.63.070(5) and allows an infraction to be deferred for a maximum of one year. A person is only allowed one deferred finding on a moving violation every seven years.

Stipulated Order of Continuance (or Pre-Trial Diversion Agreement)
A Stipulated Order of Continuance is a contract made between the defendant in a criminal case and the prosecutor. The agreement is a contract, and is not governed by statute like the deferrals above. So the terms of the contract can be negotiated by the defendant and the prosecuting attorney (including the length and treatment requirements). The judge is not a party to the contract so typically, a judge lacks the power to modify the contract. Because this form of deferral is made at the pre-trial stage of the case, before any plea or sentencing occurs, technically, the person entering this form of deferral can truthfully state they were never convicted of the offense. In Pierce and Kitsap Counties, a Stipulated Order of Continuance is referred to as a Pre-Trial Diversion Agreement. An example of this type of contract can be found here.

Who qualifies for a public defender?

Under the Constitution and the landmark Supreme Court case, Gideon v. Wainwright, 372 U.S. 335 (1963), anyone charged with a criminal offense has a right to an attorney, and if they cannot afford an attorney, one will be appointed to them by the court (at taxpayers expense). This is true regardless of whether the person is accused of stealing $18 million or accused of stealing a candy bar from 7 eleven.

Qualifying for a public defender. Under Washington law, to receive a public defender, you must qualify as indigent under RCW 10.101.010, which defines “indigent” as:

  • Receiving one of the following types of public assistance: Temporary assistance for needy families, aged, blind, or disabled assistance benefits, medical care services under RCW 74.09.035, pregnant women assistance benefits, poverty-related veterans’ benefits, food stamps or food stamp benefits transferred electronically, refugee resettlement benefits, medicaid, or supplemental security income; or
  • Involuntarily committed to a public mental health facility; or
  • Receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current federally established poverty level; or
  • Unable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.

The federally established poverty level depends on the size of the household. But in 2015, for a one person household, if the person is making less than $11,770 a year it means the person is living in poverty. So in Washington State,  if a person lives by themselves and make less  than $14,713 a year, the person will get a free public defender.

However, even if the person makes more than $14,713, they may still qualify for a public defender if the person is “[u]nable to pay the anticipated cost of counsel for the matter before the court because his or her available funds are insufficient to pay any amount for the retention of counsel.” In other words, it is up to the public defense agency to decide how much an attorney would cost for that person’s particular case and whether the person can afford an attorney. If the public defense agency finds that the person is not indigent, but that the person does not make enough to afford an attorney, then the person will still qualify for the public defender. The public defender in this case is not completely free. Instead, the public defense agency will make the person sign a promissory note agreeing to make payments towards the cost of their public defender. The total fee imposed is a sliding scale based on the person’s income and the person normally has at least 12 months to pay back the costs.

What documents are reviewed to determine if the person qualifies for a public defender? In King County, the public defense agency requires the person attend a financial interview, where the screener will ask the person questions about their financial situation. The person is asked to submit pay stubs from the last three months, the most recent bank statement, a copy of last year’s income tax return, and any items that shows the person is receiving public assistance or unemployment compensation. RCW 10.101.020 also requires the person to sign an affidavit under penalty of perjury that the answers and documents provided are accurate. RCW 10.101.020 also states the appointment of counsel shall not be denied “because the person’s friends or relatives, other than a spouse who was not the victim of any offense or offenses allegedly committed by the person, have resources adequate to retain counsel, or because the person has posted or is capable of posting bond.” So even if the person has rich parents, they may still qualify for the public defender.

A public defender is only available to those facing criminal charges, involuntary commitment to a mental health facility, contempt of court for failure to pay child support, or if the State is trying to take the person’s child away from them. A public defender is not available for infractions (like speeding tickets) or the DOL Administrative Hearing on a DUI case.

Want a bench trial instead of a jury trial? Think again

Everyone knows that if a person is charged with a criminal offense, he or she has a right to a jury trial. But what if the person does not want a jury trial and instead wants the judge to decide if he or she is innocent or guilty? A judge trial is referred to as a bench trial, so a single person (the judge) decides the defendant’s fate rather than the jury (six or twelve random people depending on whether the offense is a misdemeanor or felony). Most people would rather have a jury trial, than bench, because the jury must be unanimous in order to convict. So all the jurors must agree that the defendant is guilty rather than just one (the judge). Jurors might feel more sympathy for a defendant than some cranky, jaded, judge. But depending on the circumstances, there are some situations where a bench trial might be advantageous. This could be true if there is a particularly complicated legal defense, and the defendant believes the judge is more likely to understand the defense. Also, a bench trial is much shorter than a jury trial because picking a jury takes time (multiple days for complex cases), and the trial itself goes much faster if a jury is not involved. If the defendant is paying a private attorney for trial, it could be cheaper for the defendant do a bench trial rather than a jury trial. Moreover, if the defendant wants to appeal the trial court’s legal decision to the next level, a bench trial can give the defendant the record needed to appeal, without the cost and time of a jury trial.

So a person has decided that for whatever reason, a bench trial makes more sense. Does the person have a right to a bench trial? If the charge is DUI, the answer is most likely no! The reason is that for misdemeanor offenses filed in District Court, there is a court rule that allows a prosecutor to demand a jury trial. That rule is CrRLJ 6.1.1(b). For whatever reasons, prosecutors in King County and other jurisdictions routinely demand a jury trial on a DUI charge, and sometimes, on all charges. I have never quite understood why the prosecutors demand a jury trial on DUI charges, or any charge for that matter. A bench trial is shorter and therefore costs the taxpayers less money. I would think the government would be excited that a defendant wants a less costly trial? It is possible that prosecutors believe defense attorneys will get the trial set with a particularly sympathetic judge. Ironically, on more serious felony charges, the prosecutor does not have the ability to demand a jury trial on the case. CrR 6.1, the Superior Court equivalent of CrRLJ 6.1.1, requires the defendant to file a written waiver of the right to a jury trial, and leaves it up to the trial court whether to allow a bench trial on a particular case.

What do you mean I can’t have a copy of my own police report?

You’ve been charged with a crime, hire an attorney, and make an appointment to go over the police reports with that attorney. At the conclusion of the meeting, you ask the attorney if you can have a copy of the police report to share with your friends, family, employer, or whoever else you think should have an opportunity to read the police reports. The answer your attorney is ethically required to give to you is, “due to court rule CrRLJ 4.7(g)(3), I am prohibited from giving you a copy of the discovery, i.e. the police report in this case.” Huh? Yes, there is a court rule that says your attorney cannot give you a copy of the police reports, assuming they received the police reports from the prosecutor as discovery in the case. The rule makes sense for serious felony cases like murder and sex offenses. In a murder case, the discovery may contain the address and phone numbers for the witnesses and the court doesn’t want the defendant to go whack all the witnesses. In a sex offense, the discovery may contain something illegal (like child porn) and the court doesn’t want the defendant to have a further opportunity to exploit the victim. But in more simple criminal cases, like a DUI, this rule makes no sense. The good news is there are some easy ways to get around this rule. First off, the rule itself says your attorney can give you a copy of the discovery if the prosecutor and court agree to it. So you can always make the request to the judge. Also, the defendant (or any person for that matter) can make a public records request to the law enforcement agency requesting the police report. If your attorney obtained the report via a public records request or a DOL hearing on a DUI case, your attorney can provide the report to you without violating the court rule, since the court rule only applies to “discovery” provided by the prosecutor. And finally, while the rule says the attorney must maintain “exclusive custody” of the material, you can always read the police report in your attorney’s office, and take very detailed notes about the police report.

Ignition Interlock Devices and work vehicles

There are multiple laws that require a person convicted of DUI to install an Ignition Interlock Device (IID) on their personal vehicle. There are also situations where a person who has been arrested for DUI, but not yet convicted of DUI, is required to install an IID on their personal vehicle. But what if the person has to drive a vehicle as part of their employment? What if the person drives a taxi for a living or a delivery vehicle? Does the person have to install an IID on their work vehicle or just quit their job?

The short answer to this question is if the person has a prior DUI conviction for DUI, they likely will have to quit their job (or convince their boss to allow them to install an IID on their work vehicle). This is true even if the prior DUI arrest was reduced to a lesser charge (such as Negligent Driving in the First Degree or Reckless Driving).

RCW 10.21.055, which is a relatively new law, requires a judge to order an IID in the situation above at the first court hearing, before the person has even been convicted of DUI. The law does not make any exception for a person’s work vehicle.

Ironically, there is a work vehicle exemption found in the law. RCW 46.20.720 states that once the person is convicted of DUI, and ordered to have an IID, they may be eligible for a work vehicle exemption to the IID requirement. Keep in mind, even if the person is eligible for the work vehicle exemption, they still must have an IID on their personal vehicle. There is also a 30 day (or 365 day) wait period before the person can take advantage of the work vehicle exemption.

Let me demonstrate how nonsensical these statutes are in a real word hypothetical. Lets say DUI Donny gets charged with a DUI as a teenager in the 1970s. In the case, DUI Donny has a BAC under the legal limit of .08 so he ends up having his DUI reduced to Negligent Driving in the First Degree (which is a prior DUI under RCW 10.21.055). Fast forward to 2015, DUI Donny gets stopped again for DUI, and again has a BAC under .08 (lets say .07, and yes people routinely do get charged with DUI even if their BAC is under .08). DUI Donny is employed as a delivery truck driver and is the sole income earner in his family. At DUI Donny’s first court appearance, RCW 10.21.055 requires the court to order DUI Donny to have an IID on all vehicles he drives. It will take DUI Donny several months before his case is resolved (most likely with a reduced charge, based on the below .08 BAC). However, DUI Donny will likely have to quit his job because the law does not allow any exception to the IID requirement for DUI Donny’s delivery truck he drives at work. This means that unless DUI Donny’s employer allows him to install an IID on his work vehicle, he is out of a job.

Good time in jail? A 33% reduction

Most have heard of “good time” off for keeping out of trouble in jail, but do you know how much off people normally get? For the majority of jail sentences, the inmate will get one-third off in good time. That means that when you read in the paper that a person received a sentence of 20 months, in reality, that person may only be doing about 14 months or so. This is true on essentially all misdemeanor offenses and on a good portion of felony offenses. Some felonies, like murder, get less than a third off for good time (10-15% depending on what charge the person was convicted of). And then there are felony enhancements, like the firearm enhancement, where a person does straight time (no good time) on the enhancement portion of the sentence (which can be 5 years). Pretty much all misdemeanor sentences are eligible for work release in King County. And even on felonies, the Department of Corrections (DOC) often kicks the prisoner out for the last six months of the sentence to serve that portion of his or her sentence as work release. So, a felon looking at 20 months on a felony DUI will actually only serve 8 months in jail, then serve 6 months on work release (for a total sentence of 14 months, with the good time off). And a portion of that 8 months of jail may include electronic home detention that the person served pre-trial, prior to sentencing. This is not nearly as bad as the 20 month sentence that you may see quoted in the paper.

RCW 9.94A.729, the good time statute, leaves it up to the county jail to determine the good time amount. Jails are constantly looking for creative ways to get people out of jail in order to save money, so most jails set the good time amount as high as possible. Another quirk in the system is the good time off only kicks in after a specific minimum number of days (set by each individual jail). This number can vary from jail to jail but 5 is a typical number. So, for instance, on a sentence of 4 days, a person actually serves 4 days. But for a sentence of 6 days, the person actually serves 4 days (because of the one third off for good time). Figuring out how much good time a person is likely to receive is easy enough for misdemeanor sentences, and for felonies that do not involve prison time. But for a person heading to the DOC, the calculation can become much more complicated. So contact an attorney to find out how much good time should be given on a particular sentence.