Politics play role in latest WA Court of Appeals decision

If you read this blog with any regularity then you know that the DUI laws and policies in Washington State and in particular King County have greatly changed in the past 2 years.  First occurred with the sweeping changes to current DUI laws by the State legislature in response to some horrific DUI vehicular homicides in the Seattle area.  Secondly the King County Prosecutors Office completely changed their negotiating policy when it came to DUI cases.  And now lastly we are seeing these changes in opinions from the higher courts.  With the latest coming in the case of State v. Mecham published today.

I have previously blogged about this case.  And I suspect it is far from over considering the ramifications it carries.  But this case came down to two issues as decided by the WA Court of Appeals Division 1 when it comes to DUI laws.  First the Court held that a field sobriety test is an exception to the warrant requirement pursuant to a Terry stop and therefore it is a reasonable search and a warrant is not required.  Secondly because a warrant is not required it is not protected by the 4th amendment and therefore a Prosecutor can comment on a defendant’s refusal to perform the field sobriety tests because there is no constitutional right to refuse the test.

So how does this affect DUI cases you ask.  Well as a DUI Attorney in Seattle my advice has always been to politely decline any field sobriety tests if a police officer asks you do to them.  This was for a couple of reasons.  First these tests are designed for you to fail.  No matter how well you perform the arresting officer will always find a way to say something was done incorrectly and use that as justification for a DUI arrest.  Secondly by doing these tests you are just incriminating yourself.

Prior to this ruling some Courts would suppress the refusal of field sobriety tests as irrelevant and prejudicial at trial.  However now if you decline these tests a Prosecutor will try and use that against you in a DUI trial.  For example they will say a driver declined the field sobriety tests because they knew they were going to fail, or they were trying to impede the investigation because they had something to hide.

In my opinion this is just another example of how the tables of turned on those charged with DUI.  It seems more and more constitutional rights are being trampled on and taken away because politics are getting in the way.  Yes drunk driving is a problem.  And yes those vehicular homicides that occurred in Seattle last year were horrific incidents.  But taking away constitutional rights because of this is wrong.  I don’t agree with this decision and it hopes it goes all the way to the WA Supreme Court, although I’m worried about what would happen there.

Now my advice is still the same.  If you find yourself facing a DUI arrest in Seattle or anywhere in WA State for that matter.  Ask to speak with a DUI lawyer before you answer any questions or do any tests.  If you can’t get a hold one just tell the arresting officer you don’t feel comfortable answering any questions or doing any field sobriety tests without first speaking to a lawyer.  This may soften the blow a little when it comes to a trial, and I believe it still gives the driver some legal maneuvering to keep the Prosecutor from using the refusal as evidence.

If you’re interested in the opinion of the State v. Mecham case here you go.

About the author:  Matthew Leyba is a DUI lawyer in Seattle.  He has been repeatedly recognized as a Super Lawyer Rising Star by the Seattle Met Magazine in the area of DUI Defense.  Additionally he is rated a perfect 10 out of 10 by Avvo.com