To preserve your right to drive in Washington, you must request a hearing within 30 days after your license has been taken from you by an officer or within the time set by the Department of Licensing in a revocation letter. A hearing must be initially scheduled within 60 days of your arrest for DUI. If you had a valid license when stopped, you are free to drive until the hearing. You will be mailed a notice of the hearing about three weeks after your request. You can plan on at least 60 days of driving. If you lose at the hearing, you can not drive after the hearing, however, you may be eligible for an occupational license. Additionally, if you are considering a Deferred Prosecution (see the section entitled "Deferred Prosecution," below), you may "stay" the Motor Vehicle Hearing and get an extension of your eligibility to drive.

The arraignment is your first appearance in court, in front of a judge. It typically occurs the next business day after your arrest. It is Mandatory that you appear in court. The first appearance is primarily for the advisement of rights, and your opportunity to declare "not guilty." If you have an attorney, he will advise you of the proper procedures.

Your attorney will discuss your case with the District Attorney and negotiate the best possible plea bargain. It will happen about 6 weeks after arraignment. This is usually after the Motor Vehicle Hearing. The date is set by the Court and your attorney on his calendar.

The Court may suppress some or all of the evidence against you if your constitutional rights have been violated. Your attorney will file motions to suppress. It occurs anywhere 6 weeks to 3 months after the pre-trial conference.

Almost always a trial to a jury of six. Trial must be held within 90 days after the arraignment (60 days if you are incarcerated), unless you waive your "speedy trial rights" and extend your right to a trial.

Deferred prosecution is a program that allows a person suffering from an alcohol problem (alcoholism), a drug problem (addiction), or a mental health problem to seek permission of the court to go through an intensive treatment program in lieu of being prosecuted. Successful completion of the treatment program, and continued lawful conduct will result in dismissal of the charge and may avoid a suspension of driver's license by the Department of Licensing.

Despite the best efforts of MADD and other similar interest groups, an enlightened Washington legislature has recognized that some people run afoul of the law not because they are criminals, but because they can't help it. The lawmakers have recognized that the most effective way to keep the alcoholic from driving drunk is to get him or her to stop drinking. From this inspiration was born the deferred prosecution statute.

The law allows a defendant to request the court for deferral or postponement of their case for five years while he or she seeks treatment for their disease. If the request is granted the advantages are clear: defendants retain their license, do not go to jail, keep the DUI off their record for most purposes, are not required to pay for high risk insurance, avoid being fined, and, except for cases of blood or breath refusal, avoid administrative license suspensions. Most importantly, they are given an opportunity to sober up and regain control of their lives. Washington is unique in this statutory alternative. Deferred prosecution is not limited to alcoholics, but may be granted where the defendant is suffering from drug addiction or mental health problems. It is not uncommon to find people suffering from symptoms of all three illnesses.

In order to qualify for deferred prosecution, the defendant must obtain an evaluation from a state approved treatment agency. The agency will conduct an assessment and if it concludes that the criminal conduct for which deferred prosecution is sought occurred as a result of alcoholism, drug addiction or mental health problems and that the defendant is amenable to treatment, meaning they are willing to be treated, the person is eligible for deferred prosecution as long as they have never been granted a deferred prosecution before.

In DUI cases, of course, the most frequent reason a deferred prosecution is sought is because of a drinking problem, and the required two-year treatment program is quite rigorous and occurs in three phases. The first phase is typically three or four nights a week for the first two or three months (seventy -two hours of treatment in the first 90 days) or can involve an inpatientprogram. Phase two entails weekly counseling for six months. Phase three requires counseling once a month for the balance of the two-year program. Additionally, two Alcoholics Anonymous or other self-help meetings per week are required for the full two years. Usually the defendant is also placed on supervised probation, which means that he or she may be required to meet on a regular basis with a probation officer and to pay for those services. Additionally, if the blood or breath test is a .15 or above or there was a test refusal, an ignition interlock device (IID) will be required for at least one year. If the test result was under a .15, the IID is discretionary with the court. If a blood or breath test is taken, a deferred prosecution will stay, or hold in abeyance most administrative license suspensions. However, in the case of a test refusal, the administrative action is unaffected.

Three years after the completion of the treatment program, the charge is dismissed. What the defendant is required to do during the three years after treatment ends and the case is dismissed, other than not re-offend, is up to the judge. Typically, continued attendance at AA is all that is required, along with no new offenses.

Entry into a deferred prosecution program should not be undertaken lightly. It is a rigorous program, and the court usually requires strict compliance. While it is a wonderful way to deal with both a significant health problem and a serious legal problem at the same time, recovery is not easy. It requires strong commitment and the consequences of failing to successfully complete the program are usually severe.

Revocation of a deferred prosecution invariably results in a conviction for the DUI, and any other criminal charge that may have accompanied it. The penalties imposed may be harsher than if the defendant had merely pleaded guilty in the first place, and will almost always require completion of the treatment program originally undertaken as a part of the deferred prosecution.

Furthermore, a person is only entitled to one deferred prosecution in a lifetime. So if a person is not totally committed to recovery, entering into a deferred prosecution could be very foolhardy.

Finally, a deferred prosecution counts as a prior offense if the person is convicted for a subsequent DUI within seven years of the DUI for which deferred prosecution was sought, and will be used to substantially enhance the mandatory minimum penalties to be imposed on the subsequent DUI.

Successful completion of the deferred prosecution, however, has significant rewards, both personal and legal, and should be examined in any case in which alcohol, drug or mental health problems may exist. It is recommended that an alcohol assessment from a qualified and appropriate agency be obtained in every case well before final disposition. div class="DocTitle">DUI Questions and Answers

Questions

If I am stopped by a police officer and he asks me if I've been drinking, what should I say?

Do I have to take the "field sobriety tests?"

HGN
One Leg Stand
Heel-to-Toe

Do I have to take a portable breath test (PBT)?

Does the officer have to read me my rights? What if he/she doesn't? Do I have the right to talk to a lawyer?

Do I have to take a breath test at the police station?

Answers

If I am stopped by a police officer and he asks me if I've been drinking, what should I say?

You are not required to answer potentially incriminating questions. A polite "I would like to speak with a lawyer before I answer questions" is a good reply. On the other hand, if the truth is that you consumed two beers over the past three hours, that kind of admission will not hurt you and may explain the odor of alcohol on your breath.

The most important thing is never lie about anything! It will only damage your credibility when you go to court. If you feel the officer's questions are becoming overbearing or accusatory, or his tone of voice or behavior becomes intimidating, ask to speak to a lawyer, and do not make any further statements until you have had the opportunity to do so.

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Do I have to take the "field sobriety tests?"

Unlike blood and breath testing, submitting to "field sobriety tests" is strictly voluntary, although few police officers will tell you so. In many respects, these tests are designed for failure and of the several tests the officer might ask you to take, only three have been shown to have any relevance to proving legal intoxication. The alphabet test, the finger-to-nose test, the finger-count test and the standing balance (usually administered along with the finger-to-nose test) are scientifically proven to not correlate to legal intoxication.

According to the National Highway Traffic Safety Administration (NHTSA), the only tests that have been shown to have some relevance to establishing legal intoxication are the One Leg Stand, the Walk and Turn and the Horizontal Gaze Nystagmus (HGN).

HGN - In this test the officer has you follow a penlight (or finger or pencil) and attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation). If this occurs before 45 degrees, it theoretically indicates a blood alcohol concentration over .05%. The smoothness of the eye's tracking is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This test has been shown to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset, and make what amounts to a medical diagnosis that is best left to neurologists and ophthalmologists. Even under laboratory conditions, this test has only been established of be accurate in predicting a blood alcohol content above .10% 77% of the time.

One Leg Stand - In this test you will be asked to stand on one foot for approximately 30 seconds, while the officer looks for four things:

Do you sway while balancing?
Do you use your arms to balance?
Do you hop?
Do you put your foot down?

According to NHTSA if you are unable to satisfactorily perform this test by doing two or more of the above, there is a 65% probability that you have a blood alcohol concentration of .10% or more.

Heel-to-Toe - In this test the officer is required to find a visible line. You will be asked to stand on this line in a heel-to-toe position while receiving instructions. The officer will have you walk on this line for nine steps, heel to toe, turn in a specified manner, and walk nine steps back. The officer will be looking for eight things:

Can you balance during the instruction phase?
Do you start the test too soon?
Do you stop while walking?
Do you touch heel-to-toe each step?
Do you step off of the line?
Do you use your arms for balance?
Do you lose your balance on the turn, or do you turn incorrectly?
Do you take the wrong number of steps?

An additional test that is frequently requested is a preliminary or portable breath test (PBT). That test is discussed elsewhere in this section of the web site

A driver who refuses to take the "field sobriety tests" forces the officer to make the decision to arrest based upon whatever evidence the officer has obtained prior to the point the tests were refused. The reality is officers have usually made up their mind to arrest before they give the FSTs; the tests are simply additional evidence to use against you in court. While an arrest may be avoided if the tests are taken and successfully completed, the tests are so subjective (what appears to be "swaying" to one officer may not be to another) that the best action may well be to politely decline until you have had the opportunity to talk to a lawyer.

There are two caveats. One is that refusing the tests will definitely heighten the officer's suspicion and may result in an immediate arrest. Second, a prosecutor may be allowed to argue that your refusal evidences a consciousness of guilt. Regardless, if you have been drinking, submitting to "field sobriety tests" is a momentous decision that will likely affect your case adversely.

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Do I have to take a portable breath test (PBT)?

A PBT is a hand held breath-testing device that is carried by most police officers in their patrol car. It is given at roadside along with other "field sobriety tests" for the stated purpose of assisting the officer in deciding whether or not to make an arrest. Occasionally the officer will use the results to exclude alcohol intoxication where the officer suspects drugs. The results of the PBT are not admissible in trial, but, if presented properly by the prosecutor, may be used in certain preliminary hearings held to establish whether or not the officer had legal cause to arrest.

Submitting to the PBT is strictly voluntary, although the driver is rarely informed of that. Refusal to submit to the test will usually result in an arrest for DUI. But the fact of a refusal is not admissible at trial, and you will not lose your license or suffer any other sanctions for refusing.

Accordingly, there is a critical difference between the PBT and the "official" breath test that will be requested after arrest at the police station, known as the BAC Verifier DataMaster II. Do not confuse the two tests! You do not have to submit to the PBT on the street. But if you refuse to take the test on the DataMaster at the police station you will face at least a one-year license revocation.

Some people think that because they took a breath test on the street that they don't need to take another one at the police station because the difference is not adequately explained to them. Don't make the same mistake! If arrested for DUI, ask to speak to a lawyer immediately.

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Does the officer have to read me my rights? What if he/she doesn't? Do I have the right to talk to a lawyer?

Almost everyone is familiar with the "Miranda rights" that are read to a person who has been arrested. But when those rights must be read depends upon the facts and circumstances of each case. Originally, the Miranda rule was intended to insure that citizens were aware of their rights before being questioned by the police. But the application of the rule, and the consequences for the police violating it, has been expanded and further defined by statutes, court rules and subsequent court decisions.

Generally speaking, the officer must read you your rights when you are arrested. If the officer fails to do so, the prosecution cannot use any statements you make in response to questions, no matter how important the information is to the prosecutor's case. An exception can occur if, at your trial, you testify to facts different from what you told the officer. Then the prosecutor may be able to ask the officer what you said on the night of your arrest.

In Washington, the rule has been expanded from the original Miranda rule, which simply provided that a suspect has the right to remain silent and not answer questions until talking with a lawyer. As a result of a court rule adopted by the Washington State Supreme Court, an arrested person has the right to talk to an attorney for any purpose, not just to find out whether or not to answer questions. This is particularly important in DUI cases, because it means an arrested person can talk to an attorney to find out whether or not to take a breath test, as well as other things he or she should or should not do while in custody, or after release.

Failure to advise a person of the Miranda rights typically does not result in dismissal of the case. The remedy is suppression or exclusion of evidence obtained after the violation of the suspect's rights has occurred up to the point in time that the officer complies with the rule by advising the person of the Miranda rights.

It is a fact of life that most people do waive their rights and agree to talk to the officer. That is usually based on a mistaken belief that being cooperative will help their case. In questioning a suspect, a police officer is doing his or her job and looking for evidence that will incriminate the suspect. Innocent statements can be taken out of context, or be misinterpreted in such a manner that they can be devastating to an otherwise defensible case.

Since you have the absolute right to decline police questioning, your silence cannot be used against you in court as showing some consciousness of guilt, nor can the fact that you ask to speak to a lawyer.

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Do I have to take a breath test at the police station?

You do have the right to refuse to take the official breath test, but the consequences can be severe, and you can, and probably will, still be prosecuted for DUI. In Washington, there are three official sanctions:

Your driver's license can be suspended for a minimum of one year, or substantially longer if you have prior DUI convictions, or alcohol related administrative license suspensions.
The fact of refusal can be introduced into evidence as "consciousness of guilt." In other words, the prosecutor will claim that you refused because you knew you would flunk the test.
A test refusal will increase the mandatory minimum sentence that the judge must impose if you are found guilty.

If you refuse the test the Department of Licensing (DOL) will revoke your license for at least one year. Prior DUIs can increase the revocation to two years. While an Occupational License may be available after 90 days (one year if a second administrative action), an Ignition Interlock Device will be required and you will be required to carry high risk insurance for three years following reinstatement of your license.

You are entitled to a hearing before DOL revokes your license, but only if you request it by way of a hearing request form provided by the officer within 30 days of the date of arrest, and pay $200, which can be waived if you are indigent. If you did not received the form, or if you lose it, go to a DOL licensing station and request a hearing request form. You may download the hearing request form at the following link: Hearing Request Form. You may also call The Cowan Smith Kirk Gaston Law Firm, and we will provide you with one, without obligation.

Refusals increase the mandatory minimum sentence that must be imposed in the event of a conviction. In fact, the courts treat a test refusal the same as if the test result was over a .15 alcohol concentration! The fine will increase, the jail time will increase, and the additional license suspension resulting from a conviction will increase.

The DOL's license revocation will stand if you are unsuccessful in the administrative hearing regardless of the outcome of the criminal prosecution. Even if you are found not guilty, you will still lose your license for refusing the test!

It is usually easier to deal with a breath test in trial result than to successfully contest the revocation, so in most circumstances it is advisable to take the test. However, you should always call a lawyer if you are arrested for DUI.

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