Prosecutor DUI - When Worlds Collide

December 2, 2011

If you are facing a DUI in Seattle, Island County, Oak Harbor, or within the Greater Western Washington area, you are not alone. You may appear in court alongside a prosecutor...also facing DUI.

Prosecutors are not infallible. They are human.

Recently the Washington State Patrol arrested an individual in Yakima for DUI. However, the arrestee happened to be the Yakima County Prosecutor. Read the Yakima Herald article here.

A Selah police officer made contact with the prosecutor and discovered the prosecutor had alcohol on his breath and swayed slightly. Thereafter, the prosecutor actually performed field sobriety tests. This is surprising.

A prosecutor should know that field sobriety tests (FSTs) are completely voluntary in Washington State. Drivers who are pulled over for DUI have no obligation to perform field sobriety tests. The Supreme Court of Washington has clearly stated, "it is undisputed that in Washington, FSTs are voluntary and a Driving Under the Influence suspect has no legal obligation to perform an FST." City of Seattle v. Stalsbroten, 138 Wash.2d 227, 237, 978 P.2d 1059, 1064 (1999)(citing City of Seattle v. Personeus, 63 Wash.App. 461, 819 P.2d 821 (1991)).

Therefore, regardless of whether a driver is completely sober, a driver should respectfully decline an officer's request to perform FSTs. This is especially true since many independent scientific studies show that a high percentage of police officers conclude that individuals performing FSTs are impaired when, in fact, such individuals are absolutely and completely sober.

Here, after the Prosecutor performed the field sobriety tests, state troopers concluded that the Prosecutor's performance was indicative of impairment. Thereafter, the Prosecutor agreed to take a portable breath test (PBT). Again this is surprising.

Like the FSTs, the PBT is voluntary. The officer may only use the PBT to confirm or dispel his suspicion as to whether a driver is impaired. The PBT is merely a tool that may provide the officer with the probable cause necessary to make an arrest. Moreover, the PBT should still be inadmissible at trial pursuant to both WAC 448-15-020 and State v. Smith.

After the Prosecutor was arrested, he was initially taken to a Washington State Patrol facility for the evidential breath test.
RCW 46.61.506(4) requires strict compliance with certain standards before an evidential breath test will be deemed admissible in court. This includes the requirement that temperature of the simulator solution as measured by a thermometer approved of by the state toxicologist is thirty-four degrees centigrade plus or minus .3 degrees centigrade.

Here the Prosecutor lucked out. Apparently the breath test machine was not warm enough. Therefore, the Troopers had to take the Prosecutor down to Yakima County jail--thereby giving the Prosecutor more time to sober up. This increased lapse of time between the arrest and the breath test may have provided the Prosecutor with more time to burn off alcohol and therefore may have permitted him to avoid harsher sentencing guidelines.

The Troopers then arrived at the Yakima County Jail with the Prosecutor still in custody. Finally, the prosecutor made the right move by not refusing to take the breath test at the jail.

A person who operates a motor vehicle in Washington gives their implied consent to a breath or blood test for the purpose of determining the presence of alcohol or drugs. A refusal can result in greater consequences including sentencing conditions and DOL action. For instance, if the DOL determines that a driver arrested for DUI knowingly, intelligently, and voluntarily refused to take a breath or blood test, then the DOL will suspend the driver's license for 1 year automatically. Thus, as a general rule, it is usually wise to take the test down at the station and attempt to fight against it at a later time.

After making the mistake of submitting the FSTs, PBT, and then blowing .106 and .109, and being cited for DUI, the prosecutor appears to be back at work.

DUI happens. Even the most law-abiding citizens can be accused of having too much before getting behind the wheel. Best of luck to the Prosecutor and defense counsel on this case--this is truly a situation where different worlds collide.

The DUI attorneys at Platt & Buescher have been providing those accused of Driving while intoxicated with experienced defense since 1990. Contact Platt & Buescher today about your DUI charges at (360) 678-6777.