No seizure where no “show of authority” by police officer on foot towards pedestrian

State v. Harrington, Washington Court of Appeals, Division III, Docket No. 25497-6, filed May 13, 2008

A police officer in patrol observed Mr. Harrington walking at 11:00 PM and parked in a driveway ahead of him. The police officer got out of his car and asked to speak to Mr. Harrington. Mr. Harrington agreed and the officer told him that he was not under arrest. The officer asked what Mr. Harrington was doing and observed several items in Mr. Harrington’s pockets. Mr. Harrington first said that he had visited his sister, but when asked where she lived, he said he didn’t know. Mr. Harrington kept putting his hands in his pockets, despite the officer’s requests to not do so. The police officer asked to check Mr. Harrington’s pockets and he agreed. The officer did a pat down of the outside of the pocket and felt a hard cylindrical object. Mr. Harrington said it was a meth pipe. The officer told Mr. Harrington that he was under arrest. A small amount of methamphetamine was discovered during the search incident to arrest.

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Seizure of “suspicious” suspect at bus shelter unlawful; no evidence of criminal activity

State v. Gatewood, Washington Supreme Court, Docket No. 79992-0, filed May 1, 2008

Shortly after midnight, police in a patrol vehicle drove past Mr. Gatewood seated at a bus shelter on Rainier Avenue in Seattle and saw that his eyes got big when he saw them. Police observed Mr. Gatewood twist his body as though he were trying to hide something. Police circled back to the bus shelter to contact Mr. Gatewood, but he had left the bus shelter and was walking away. The police car followed Mr. Gatewood, pulled in front of him blocking his path, and an officer told him, “Stop. I want to talk to you.” Mr. Gatewood turned and walked away. When he got to some bushes, he bent over, reached into his waistband, took something out, and threw it in the bushes. Police ordered him to show his hands. He complied and was handcuffed. The police found a loaded handgun in the bushes. Police also found marijuana on Mr. Gatewood and found cocaine back at the bus shelter.

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If drug activity is suspected, police can seize personal property

If you are caught with drugs, police can seize your personal property under civil forfeiture law and can keep it if it can be linked to drug activity. Police will seize anything they think could possibly be linked to drug activity, especially any cash they find, computers, your car, expensive electronics equipment, even the house that you live in. NPR has a great article about police tactics in asset forfeiture.

You have the right to a hearing before your personal property is forfeited. You have to act quickly if your personal property is seized after an arrest where drugs are found. You have to request a hearing within a certain amount of days from the time of the seizure or your personal property will not be returned and you will not have a hearing.

An experienced criminal defense attorney can assist with requesting a hearing and ensuring that your rights are protected and that any property not linked to drug activity is returned.

New Ignition Interlock Driver’s License may let you keep driving after DUI arrest

Coming this January, you can keep your license after a DUI arrest if you agree to have an ignition interlock device in your car. Governor Christine Gregoire signed House Bill 3254 into law in April. While the new section creating the “Ignition Interlock Driver’s license” went into effect today, June 12, 2008, the rest of the changes won’t be effective until January 1, 2009.

After notification that your license will be suspended for a DUI, you will be able to apply to the Washington State Department of Licensing (DOL) for an Ignition Interlock Driver’s License for the period of the suspension. You will have to submit an application fee of $100, show that you have installed an operating ignition interlock device in your vehicle, and file proof that you have current SR-22 insurance. You will also have to agree to waive your right to a hearing to challenge the driver’s license suspension.

This is a big change in the law and will allow many people to keep working and supporting themselves and their families immediately after a DUI arrest. Currently, only an Occupational/Restricted License is available as an option after your license is suspended. But, it is not available to everyone and there can be a waiting period of up to 3 months. Also, you have to get your employer or other qualified person to certify that you need to drive.

Consult with an experienced criminal defense attorney if you have questions about whether you qualify now for an Occupational/Restricted License or how to get your license back after it was suspended for a DUI.

Will the breath test in my DUI case be used against me in court?

Well, the short answer is: it depends.

If you took a breathalyzer test when you were arrested for DUI, the police officer will forward the results of the breath test to the prosecuting attorney. The prosecuting attorney will review your case and make a determination whether to charge you with DUI or a lesser charge. The prosecuting attorney will then file your case with the court that has jurisdiction. This will depend on which officer arrested you and where you were arrested. For example, if you were stopped by a Washington State Trooper for DUI in King County, then your case will be filed in a King County District Court. If you were stopped by a Seattle Police Officer for DUI in the City of Seattle, then your case will be filed in the Seattle Municipal Court.

Recently, some courts have been refusing to allow the prosecutors to use the breath tests in court because of mistakes made by the Washington State Toxicology Laboratory, the agency responsible for breath testing.

King County District Court judges are refusing breath tests until the tox lab can prove that all of the errors have been corrected at the tox lab.

A few Seattle Municipal Court judges are refusing to allow breath tests up to a certain date when they feel the problems were corrected.

Some Snohomish County District Court judges are also refusing to allow some breath tests up to a certain date.

Some prosecutors are also just agreeing not to try to present the breath test evidence to the jury.

You should consult with an attorney experienced in DUI defense for more specific information for your case.