DUI Case Summaries
Case Summaries: DUI Charges Dropped; Swayed by the Defense; Two Priors and a Beer for Breakfast; Body of the Crime – Corpus Delicti; Aiding and Abetting a DUI; Tequila Shots and a Guilty Conscience; Over the Limit But Not a Felony Crime; Turning the Tables on the Prosecution; Innovative Defense Theory
DUI Charges Dropped Due to BAC Test Errors
City of Lynwood vs P. Howe*
How can you prevent DUI charges being filed against a client who breathed a .21 during a blood alcohol test at the police station? Just ask attorney John Kannin.
Mr. Kannin’s client Mr. Brown had spent the evening at a friend’s house in Redmond, where he allegedly drank about five beers. He was driving home and was in the city limits of Lynwood when he was pulled over by a police officer from Mountlake Terrace police department. Brown pulled into a Jack in the Box parking lot, where he had to wait for 20 minutes until the Lynwood DUI police squad arrived.
After failing the sobriety tests given on the side of the road, Brown was arrested for DUI and taken to the police station for a blood alcohol concentration (BAC) test. Brown breathed a .214 and a .185, respectively, both well over the legal limit of .08.
According to Washington State Administrative Code (WAC) 448-16, a code that has force of law and lays out the state toxicologist’s standards for analysis of blood samples for alcohol, the police are required take two BAC readings within minutes of each other in order to have a valid breath test, and both results must be over the legal limit of .08 for proof of DUI. An additional requirement stipulated by WAC 448-16-060 is that in order for the two breath samples to be valid, the mean of a calculation involving the upper and lower parameters of accuracy for each reading must fall within acceptable discrepancy limits (see WAC 448-16-060 for the exact language determining agreement of duplicate breath samples). From previous cases, Kannin was aware of this margin of error for the machines. He asked the prosecution to secure a copy of the uncertainty measurements for the BAC machine from the State police and give it to him.
Kannin discovered that applying the WAC calculation to Brown’s two breath tests showed the mean of the two readings lay barely within the acceptable parameters for a valid test.
When Kannin subsequently used the uncertainty measurement chart to factor the margin of error for the original readings into his calculations, he discovered that the final number was no longer within the accepted discrepancy parameters. This meant that the BAC reading was unreliable.
Kannin told the prosecution that their case didn’t follow the WAC requirements and that the BAC test readings could not be used as evidence in proving the prosecution’s DUI charges against Brown.
The prosecution agreed to reduce the DUI greater than .21 BAC charge to negligent driving with no jail time and an $800 fine. The maximum sentence for negligent driving is 90 days in jail and a $1,000 fine. The DUI charge – a gross misdemeanor – would have resulted in a minimum sentence for Brown of two days in jail, a $2,000 fine, loss of driving privileges for one year and the required use of an ignition interlock device on his car for a year at a cost of $100/month.
Swayed by the Defense
On September 24, 2011, Phillip Howe* was driving home after attending a high school football game at Memorial Stadium in Seattle when he grew tired, parked his car on a city street, and fell asleep.
An unknown concerned citizen saw Howe slumped over his steering wheel with the engine running and called 911. Seattle Police Department DUI Squad Officer John Velliquette was dispatched to the scene.
Officer Velliquette woke Howe and spoke with him to make sure that there was no medical emergency. Claiming to notice an odor of alcohol, he asked Howe to get out of the car and conduct a series of voluntary roadside coordination tests. Howe declined to do so. Howe also declined to take the alcohol breath test at the side of the road. Officer Velliquette arrested Howe for DUI and took him to the police station. Howe refused to take the BAC DataMaster breath alcohol test at the station. He was charged with DUI and criminal and DOL civil proceedings were filed against him.
Howe hired Kannin Law Firm P.S. to conduct his criminal defense. He entered a plea of ‘not guilty’ to the charges against him. Defense counsel John Kannin argued that the police officer did not have sufficient probable cause to arrest Howe for DUI because no one had seen Howe driving and there was no empirical evidence that he was intoxicated or impaired by alcohol.
A video tape provided to Kannin Law Firm P.S. by the Seattle Police Department during discovery appeared to contradict Officer Velliquette’s police report, in which he wrote that Howe was swaying when he got out of his vehicle. Velliquette had claimed this was evidence of Howe’s intoxication. However, after reviewing the tape Mr. Kannin saw no evidence of the sway that Officer Velliquette claimed to observe.
While conducting research, Mr. Kannin discovered a June 2011 Memorandum issued by the Seattle Police Department’s Office of Police Accountability (OPA) (http://s3.documentcloud.org/documents/239117/opa-disposition-dui-squad-stamp-investigation-06.pdf) that brought up concerns regarding Officer Velliquette’s honesty and adherence to correct policies and procedures during DUI investigations and arrests. The Memorandum documented an investigation by OPA that resulted in SPD Deputy Chief Metz’s decision to recommend supervisory intervention for Officer Velliquette and two other officers. An excerpt from the memorandum states: The Traffic Section Commander conducted an audit of his DUI Unit and discovered . . . Officer Velliquette’s practice of adding a written statement in his reports indicating that his sergeant had screened his arrests, even thought the sergeant had never actually reviewed the arrests or reports involved.
Mr. Kannin filed a motion to suppress the evidence against Howe. The motion was heard by Seattle Municipal Court Judge Karen Donohue. During the hearing, Mr. Kannin cross-examined Officer Velliquette and showed the videotape of the DUI arrest.
Following the hearing, Judge Donohue issued a Finding of Fact and Conclusions of Law brief in which she determined that “probable cause to arrest requires more than a suspicion of criminal activity,” and that “the odor of alcohol alone is not sufficient grounds for probable cause.” She also contradicted Officer Velliquette’s statement that Howe exhibited a ‘steady sway’ when he got out of his vehicle immediately prior to being arrested, by noting that the court did not observe the defendant exhibit any obvious sway in the videotape of the arrest.
In Febraury 2012, Judge Donohue signed an order granting the defense’s motion to dismiss the City of Seattle’s criminal case against Howe.
After the dismissal order in the criminal case came through, Mr. Kannin obtained a dismissal of the Department of Licensing’s civil case against Howe and its proposed three-year revocation of his driver’s license was thereby cancelled.
*name has been changed
Two Priors and a Beer for Breakfast
D.S., a 58-year-old woman who immigrated to the United States from Vietnam in 1975, hired Kannin Law Firm to represent her after she was arrested for DUI by a state trooper in Eastern King County. Prior to her arrival in the U.S., D.S. was injured in a Viet Cong rocket attack on her village when she was 14. Her leg was almost severed near the knee.
D.S. was pulled over by a state trooper after making a “California stop” at a rural intersection. The trooper claimed that he noticed an odor of alcohol on her breath and administered the Standardized Field Sobriety Tests, which D.S. failed. This was due most likely to the fact that the tests took place on a gravel slope, and that D.S. has had coordination problems due to multiple serious leg injuries. The trooper arrested D.S. for DUI and gave her a breath test at the police station. Her BAC (Blood Alcohol Concentration) was found to be .07, which is under the legal limit of .08. However, D.S. was still charged with DUI because the trooper maintained that her driving had been impaired by alcohol consumption.
Mr. Kannin was able to have the BAC breath test evidence suppressed on the grounds that it did not conform to WA State Standards for a valid breath test. Prior to the trial date, he met with the prosecuting attorneys and pointed out the weaknesses in their case. Mr. Kannin asked the prosecution to dismiss the case or, failing that, to agree to a lesser charge. The prosecutors refused to consider either option, so Mr. Kannin prepared the case for trial. On August 16, 2011 the case went to trial before a jury in King County District Court.
While under cross-examination, the state trooper conceded that D.S.’s injuries may have been responsible for her lack of coordination on the sobriety tests. D.S. testified, explaining her movements during the day and the injuries she suffered in Vietnam and after her arrival in the United States. D.S. showed her injuries to the jury.
The prosecutors emphasized as particularly damning the fact that D.S. had told the police that she drank beer at nine a.m. on the morning prior to her arrest. “What kind of person has a beer for breakfast?” they repeatedly asked.
In his closing arguments, Mr. Kannin turned this offensive move into a strong defense. He told the jury that D.S., who works the night shift doing inventory and comes home hungry and ready for bed after a hard night’s work, is exactly the “kind of person who has a pizza and beer for breakfast.” Mr. Kannin also used D.S.’s two prior DUI convictions to the defendant’s advantage by pointing out that on both of the prior occasions, D.S. plead guilty to DUI, but in this, the “world’s weakest DUI case,” she was insisting on her innocence because she was not guilty of the charges against her. He also told the jury that the troopers’ proof – a rolling stop and the odor of alcohol – was not evidence beyond a reasonable doubt that D.S. was under the influence and should be convicted of DUI.
After the closing arguments, the jury deliberated for half a day before returning a verdict of not guilty.
Body of the Crime – Corpus Delicti
In the spring of 2010, the King County Sherriff’s Department responded to reports that four intoxicated teens had crashed their car outside a private residence on Maplewild Drive in Burien.
When police arrived on the scene in the early hours of the morning, they found a silver Jeep Wrangler crashed into some trees at the end of a driveway, with both front airbags deployed. Mr. Walker*, who was standing next to the car, admitted that he had been driving home from a party and had offered to give a ride to three passengers, none of whom he knew, who had already left the scene of the accident. Walker admitted he been drinking but declined to take the field sobriety tests.
Walker was charged with DUI, evaluated by medics, handcuffed, and processed at the Burien police department, where his BAC was found to be .222, over ten times the legal limit for people under the age of 18.
The case was forwarded to the City of Burien prosecutors, who charged Walker with DUI. Walker and his mother hired John Kannin to help solve his legal problem. Kannin analyzed the seemingly hopeless case and found a flaw; the investigating officer failed to comply with the Washington state corpus delicti rule, which states that police must have proof that a crime has been committed before charging a person with a crime. In this case, Kannin used the rule to argue that the police required additional evidence beyond Walker’s admission that he was the one driving the vehicle.
Other than Walker’s confession, there was no proof that he was the driver. The passengers could not be found, and the vehicle was not registered to Walker.
During a pretrial hearing, Kannin presented his argument to the prosecuting attorney, who agreed that the case could not be won. The parties jointly moved to dismiss the DUI case against Walker. The Court granted the motion and dismissed the case.
*name has been changed
Aiding and Abetting a DUI: A Case of Legal Fencing
(State of WA v. Ms. S., San Juan County District Court) Ms. S. and her boyfriend, Paul*, were visiting the city of Friday Harbor on San Juan Island for the weekend. They had dinner with family and friends at a local restaurant, then left the restaurant in Ms. S.’s Ford Focus to return to their hotel. As they left the restaurant, Paul backed the car into a metal railing outside the restaurant, cracking the car’s taillight and scraping the paint. Paul was unaware of the damage to the car. As they drove down the main street of Friday Harbor, someone called the police to report that Paul’s driving was erratic. The Friday Harbor police responded immediately. Noting that the car’s wheels crossed the center line, an officer pulled Paul over and arrested him for DUI. Ms. S. accompanied Paul to the police station, where the police learned the car was registered to her and her mother. The State of Washington subsequently charged Ms. S with aiding and abetting Paul’s DUI, on the grounds that because she owned the car and was in the car with him when he was pulled over, she must have been aware that he was too drunk to drive. The penalties for aiding and abetting DUI are the same as those for DUI itself, which in this case would be a minimum of two days in jail, a $1,500 fine, one-year loss of driver’s license, and five years’ probation. Ms. S. retained Mr. Kannin to represent her.
In Mr. Kannin’s first legal challenge to this charge, he argued before a judge that Ms. S. did not commit a crime because there was no proof she knew Paul was drunk when he used her car. The prosecution argued that given Paul’s erratic driving, she must have known he was impaired. Mr. Kannin countered that in the State of Washington, there is no law that a person has an affirmative duty to stop other people from committing crimes (typically known as a Good Samaritan law).
The judge ruled that there was sufficient evidence to infer that Ms. S. may have been aware of Paul’s impaired state, and that therefore the case should be brought before a jury to decide.
Mr. Kannin returned to Court with a second legal challenge, based on the state law that if you are a victim of a crime, you cannot be prosecuted for assisting another person to commit the crime. According to the Revised Code of Washington (RCW), a victim is one who suffers injury to their person or property. In Ms. S.’s case, Mr. Kannin argued that she was a victim because Paul, the drunk driver, damaged her car. Over the prosecution’s vigorous objections, the judge agreed with Mr. Kannin’s argument. He found that Ms. S. was a victim of Paul’s DUI-crime. He ruled for the defense and dismissed the State’s DUI case against Ms. S.
*Name has been changed.
Tequila Shots and a Guilty Conscience
Mr. M. worked as a waiter at a popular 24-hour restaurant in downtown Seattle. Driving home from work one night in the fall of 2007, he noticed a promotional event for a national alcohol vendor taking place at a rented building on Fairview Ave. and offering free food and tequila. Mr. M went in to the building, ate some food and had a few drinks on the house. He then got back into his SUV and entered the I-5 at the Mercer Street on-ramp to go home. Instead, he crashed into the retaining wall. His head hit the windshield, which shattered. The airbags deployed and the SUV was totaled. Mr. M. suffered a head injury in addition to cuts and abrasions.
A trooper from the Washington State Patrol responded to a 911 call and arrived at the scene. Mr. M was arrested for driving under the influence and taken to the police station for a breath test. At the station, the police officer claimed that Mr. M. refused to take the breath test. The officer drove Mr. M. to a deserted bus stop in the University District and dropped him off at around 3 a.m. Mr. M. called a family member to pick him up. On seeing his condition, the family member took Mr. M. to the Emergency Room at Overlake Hospital in Bellevue, where he was treated for a closed head injury (concussion) as well as the other abrasions he suffered during the accident.
Mr. M. claimed that he was in and out of consciousness at the police station and was therefore unable to respond to the officer’s requests to take the breath test. However, the trooper reported Mr. M.’s arrest as a DUI refusal, a gross misdemeanor offense that is considered much more serious than a straight DUI and incurs much heavier penalties. The penalty for DUI refusal in the criminal case is mandatory license revocation for one year from DOL, a mandatory alcohol dependency evaluation, two days in jail, five years probation and a $1,500 fine. The Department of Licensing also pursued a civil action against Mr. M. to revoke his driver’s license for an additional 90 days.
Mr. M. hired Mr. Kannin to represent him in both his civil and criminal cases. In defense of the civil action, Mr. Kannin was able to retain Mr. M.’s license and the case was dismissed. In the criminal case, the defense litigated the issue of whether Mr. M.’s inability to take the breath test was a conscious refusal. At a contested hearing, the trooper testified that Mr. M. refused the breath test due to a guilty conscience on the basis of State v. Long, which states that refusal to take a breath test indicates a guilty conscience and is admissible evidence against a person arrested for DUI.
The Revised Code of Washington allows a person with a lawful excuse for not taking a breath test to offer this as a rebuttal to the charge of a guilty conscience. Mr. Kannin was able to use the RCW law effectively in Mr. M.’s case by providing medical evidence to show that Mr. M. was suffering from a concussion at the time of his arrest and was therefore incapable of refusing or complying with the breath test request. The judge sided with the defense and ruled that the evidence of a refusal should be suppressed and could not be used against Mr. M. in his DUI case. As a result of this key piece of evidence being denied to the prosecution, the state made a reasonable settlement offer which Mr. M. accepted, thereby avoiding a DUI conviction, jail time, and loss of driver’s license. He was charged instead with reckless driving and given a deferred sentence. At the end of the deferral period the case will be dismissed and struck from Mr. M.’s record.
Over the Limit But Not a Felony Crime
(State of Washington v. J.L.J., King County Superior Court Seattle) Returning home one rainy night, the client’s van collided with a vehicle parked on the I-5 freeway Ship Canal Bridge, severely injuring another man who had stopped to help a disabled driver. When police arrived they found wrecked vehicles, broken bodies, and alcoholic beverage containers on the freeway. Instead of a breath test the Washington State trooper used a blood test to determine that the client’s driving was impaired by alcohol. Rather than charging him with a DUI, however, the man was charged with vehicular assault, a class B felony. This young man faced serious jail time and life as a convicted felon. Criminal defense lawyer John Kannin recognized that while his client may have been over the limit for our State’s implied consent law, he was not responsible for causing the injury accident, thus not guilty of vehicular assault. Nonetheless the State refused to accept a negotiated plea to DUI, a gross misdemeanor. After a contentious 14-day jury trial, the jury returned a verdict of Not Guilty to vehicular assault and agreed that the man’s only crime was DUI.
Turning the Tables on the Prosecution
In City of Seattle vs. G.B. the prosecution presented an incriminating video showing a highly inebriated client being arrested in front of her house in Seattle. The defendant was charged with DUI and causing a motor vehicle accident. John Kannin was able to turn this allegedly incriminating evidence, in conjunction with the case timeline, to his client’s benefit. Mr. Kannin used the video as a defense tool to elicit sympathy from the jury and to show reasonable doubt as to the sequence of events. As a result, the jury returned with a not-guilty verdict.
Innovative Defense Theory:
(City of Shoreline v. D.E.) During this DUI trial lawyer John Kannin presented a novel defense using an alternative theory of intoxication. Mr. Kannin argued that his client’s high BAC reading was due to intoxication by paint fumes rather than alcohol. The jury returned a verdict of not guilty.
*names have been changed