A Prosecutor’s Perspective On Traffic Cases

A Prosecutor’s Perspective On Traffic Cases Kitsap County Chief DPA Jeffrey J. Jahns

Topic 1SFST & FST Admissibility

Kitsap Defense Challenge to SFST and FST Admissibility • Kitsap County District Court ruled en banc on April 25, 2007 that… • (1) SFSTs and FSTs are admissible in prosecutor’s case, • (2) Defense may cross examine officer concerning any discrepancies from training manual(s) in how officer administered a test, and • (3) The jury will decide what weight to give the officer’s opinion of the defendant’s SFST and FST performance, and the impact of any training manual discrepancies in administration of the tests • State v. Shines, et al., Kitsap County District Court No. 16802901… • 12 consolidated DUI defendants • Port Orchard v. Jason Bricks, No. 11408403, pending • Motion to suppress SFSTs and FSTs will be coming to your court!

Kitsap En Banc Hearing • All four Kitsap District Court judges attended hearing • Hearing conducted March 19-22, 2007 • Prosecutor briefing-160 pages plus attachments • Defense briefing-110 pages plus attachments • Prosecutor paid for court reporter and 554 page transcript • Previous testimony by officer • Defense witnesses… • Dr. Joseph Citron, MD, Ophthalmologist and NHTSA SFST instructor, Georgia • Michael Hlastala, PhD, UW professor of physiology/biophysics • Robert La Pier, former Idaho police officer, NHTSA SFST instructor • Hundreds of pages of exhibits

Why Challenge SFSTs & FSTs? • Washington DUI defense bar very organized… • Washington DUI laws are tough! • Perhaps only capital punishment defense bar more organized • For over a decade, DUI defense has focused on trying to suppress breath test results • RCW 46.61.506(4) amended June 10, 2004… • Statute greatly streamlined breath test admissibility requirements • Fircrest v. Jensen, 158 Wn.2d 384 (Oct. 5, 2006). Supreme Court approved constitutionality of RCW 46.61.506(4). Huge win! • Breath test results are coming into evidence! • Since breath tests are finally admissible, defense forced to actually start trying DUI cases… • Defense recognizes SFSTs and FSTs hurt defendant’s chances • So, better challenge the evidence and try to keep it from juries

What Is This All About-101 Level? • NHTSA DWI Detection and Standardized Field Sobriety Testing Student Manual… • Session (Chapter) VIII-Concepts and Principles of the Standardized Field Sobriety Tests • Very specific procedures… • HGN pages VIII-6 through VIII-8 • Walk and Turn pages VIII-9 through 11 • One Leg Stand pages VIII-12 through 14 • Defense argues that any deviation from manual compromises test’s scientific validity, and… • Concludes that test must not be admitted into evidence

NHTSA Manual Page VIII-19 • The Defense’s “proof” in support of keeping SFST evidence from the jury, page VIII-19… “IT IS NECESSARY TO EMPHASIZE THIS VALIDATION APPLIES ONLY WHEN: • THE TESTS ARE ADMINISTERED IN THE PRESCRIBED, STANDARDIZED MANNER • THE STANDARDIZED CLUES ARE USED TO ASSESS THE SUSPECT’S PERFORMANCE • THE STANDARDIZED CRITERIA ARE EMPLOYED TO INTERPRET THAT PERFORMANCE. IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED.”

What Does Page VIII-19 Mean? • The Defense equates scientific validity with admissibility • But what exactly did NHTSA validate? • Mid-1970s, NHTSA determined that way too many over .10 BAC drivers were being let go by officers • Why? Conditioned drinkers could perform relatively well on psychomotor skill tests. • NHTSA concluded that officers needed some way to reliably predict BAC level based upon field tests • So, in 1977 NHTSA looked at 16 FSTs towards the goal of developing a battery of tests to predict BACs • 16 way too many, so NHTSA reduced the number to 6, and eventually to 3…HGN, WAT, OLS

The Scientific Method • The scientific method demands creating a hypothesis, conducting a series of experiments to test the hypothesis (all conducted in the same manner), and then analyzing the results… • Obviously, the 3 chosen SFSTs would have to be conducted in the same manner to test the officer’s ability to predict .10 or higher BAC levels • NHTSA developed a standardized protocol for administering SFSTs so that they could be scientifically studied • Many studies done over the next decade • Results clear…Officers had high degree of accuracy in making roadside decisions to arrest or release subject based upon SFST performance • In practice, many more over BAC limit suspects are arrested

SFSTs Are Really Accurate Predictors of 0.12+ BACs • Defense witness Michael Hlastala helped the prosecution… • Hlastala examined the NHTSA 1998 California study • Using the 1998 data, Hlastala concluded that SFSTs were 100% accurate at predicting 0.08 or higher BAC levels when the reading was 0.12 or higher • Hlastala also concluded that SFSTs were much less accurate when predicting BACs below 0.12… • However, Hlastala admitted that the 1998 study relied solely on the BAC level obtained some time after driving and did not use retrograde extrapolation, nor did the study consider a suspect’s use of drugs or BAC refusal

But Be Careful With Science • NHTSA has successfully shown that SFSTs are scientifically valid in predicting over limit BAC levels, but… • All NHTSA studies use the word “impairment” to mean over limit BAC levels. • Two ways to prove alcohol DUI in Washington… • Alcohol concentration .08 or more within 2 hours of driving, OR • At the time of driving, suspect was under the influence of or affected by intoxicating liquor • NHTSA did not study FSTs and whether a suspect was under the influence, i.e. whether the suspect’s “ability to drive a motor vehicle is lessened in any appreciable degree” • Defense witness Michael Hlastala testified on cross examination that it would be virtually impossible to develop a standardized methodology to scientifically test such an imprecise standard

What Was Really Validated? • NHTSA validated the use of SFSTs in assisting officers in determining probable cause to arrest for over limit BACs… • NHTSA did not study the use of SFSTs, or any other FST, in determining whether the suspect was under the influence beyond a reasonable doubt • NHTSA did not study the impact of deviation from its SFST administration protocol… • E.g. 8 steps instead of 9 on walk and turn, or • Stimulus 16 inches instead of 12 to 15 inches on HGN, or • Telling the subject to raise foot 5 inches instead of six, or to point toe instead of keeping the foot parallel to the ground on the one leg stand

SFST Deviation Goes To Weight, Not Admissibility • The prosecution is not required to “prove” the scientific validity of its evidence… • Defense confuses the reason for NHTSA’s scientific studies to establish probable cause to arrest with the evidence rules • The prosecution is not trying to admit SFST evidence to “prove” the defendant had an alcohol concentration of 0.08 or higher • Case law clearly would not permit such testimony/prediction. Only a breath test result obtained from a DataMaster or DataMaster CDM is admissible in Washington. • The prosecution is seeking to admit SFST evidence to prove the defendant was under the influence beyond a reasonable doubt… • A defendant’s physical condition is a critical element of DUI, including FSTs, other tests, observations, odor, balance, driving, etc. State v. Donohue, 105 Wn.App. 67 (Div. 2 2001).

NHTSA Recognized That SFST Deviation Will Occur • The Preface to NHTSA’s Student Manual says… “The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e. the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.”

The Bottom Line On WAT & OLS • If the NHTSA Student Manual, Session VIII, is followed, SFST evidence is admissible • If an officer deviates from the Student Manual when administering SFSTs… • The SFSTs are still admissible, but… • The defense may force a 3 day hearing with hundreds of pages of prosecutor briefing necessary • The defense will cross examine the officer about the deviations, forcing the prosecutor to try to convince the jury that the officer’s opinion of intoxication based on the improperly administered SFSTs is still valid • The more deviation, the worse it will be for the officer and the less likely a defendant will be convicted of DUI… • The defense will argue…“Had the officer bothered to follow the training manual, my client might well have passed the test. That is a reasonable doubt, ladies and gentleman. We will never know because the officer did not do it right.”

The Bottom Line On HGN • Unlike the WAT and OLS where anyone can observe a defendant’s performance and conclude sober or intoxicated, HGN requires specialized knowledge, training and experience to interpret… • Lack of smooth pursuit • Distinct and sustained nystagmus at maximum deviation, and • Onset of nystagmus prior to 45 degrees • Courts will remain reluctant to admit HGN evidence when an officer deviates from the NHTSA Student Manual… • HGN is scientific evidence, so an officer needs to administer the test in accordance with NHTSA scientifically validated protocols

More Thoughts About FSTs • NHTSA does not “certify” or “approve” SFSTs… • Training is done by law enforcement agencies. Officer may get a certificate showing a class was attended, but NHTSA does not “certify” anything. • FSTs show sobriety, and officer should testify that FSTs have been used to release a sober driver… • Officer should include this fact in the officer’s narrative report

SFSTs Are Not Enough! • Officers should administer more than just SFSTs… • SFSTs were created to develop PC to arrest for over limit BACs. • All FSTs, including SFSTs, are persuasive evidence towards showing beyond a reasonable doubt that the suspect was under the influence • Why limit the evidence to SFSTs? • Officer should administer the alphabet, balance, finger dexterity and finger to nose supplemental tests on the WSP DUI Arrest Report Sobriety Tests at page 5 • Especially the alphabet. It is very difficult for the defense to explain the poor results (especially if the officer asks about the defendant’s education). • An officer’s job is to gather evidence. Limiting the “gathering” to SFSTs is a mistake… • The defense will surely ask the officer why these other tests were not performed, and ask the officer whether it is possible the defendant could have passed the unperformed tests

“Obviously Intoxicated” • Case law permits an officer to testify that based upon the officer’s training, experience, and observations, including a defendant’s SFST and FST performance,… • “The defendant was obviously intoxicated.” • “The defendant could not drive a vehicle in a safe manner.” • “The defendant had too much to drink to drive, and was under the influence.” • “I felt the defendant was obviously intoxicated.” • See State v. Heatley, 70 Wn.App. 573 (Div. 1 1993), and State v. Lewellyn, 78 Wn.App. 788 (Div. 3 1995). • Officer should include such statements in the officer’s narrative report when applicable

Topic 2A Traffic Stop Primer 2007

A Traffic Stop Primer August 2007 • Co-author Pamela Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys • A 48-page “cheat sheet” of traffic stop law… • Terry detentions • Custodial warrantless arrests • Warrantless searches incident to lawful custodial arrest • Plain view warrantless searches • Open view warrantless searches • Impound and inventory warrantless searches • Mendez passenger control checklist • Terry stop and search checklist

Terry Traffic Infraction Stop –PC Is Not Required To Stop • Officers only need Terry reasonable suspicion, not probable cause, to stop a vehicle in order to investigate whether a driver committed a traffic infraction or other traffic offense… • State v. Duncan, 146 Wn.2d 166 (2002) • Older cases often cited by defense saying probable cause is required do not survive Duncan • Why does this matter? • Prosecutors do not need to prove the infraction occurred to justify the stop • E.g. For a radar speed stop ending up in a DUI charge, prosecutors do not need radar certificate/testimony to prove speeding infraction occurred, only that officer relied on radar and had a reasonable suspicion based upon training/experience that speeding occurred. • Officers do need PC, however, to issue a traffic infraction. • State v. Cole, 73 Wn.App. 844 (Div. 3 1994)

Cracked Windshield • A vehicle may be sopped if a windshield is cracked and is in such an unsafe condition as to endanger any person… • State v. Wayman-Burks, 114 Wn.App. 109 (Div. 3 2002) • But, to justify the stop, officer better carefully document why the cracked windshield is so unsafe as to endanger someone

Recognize Suspended Driver • A vehicle may be stopped when an officer recognizes the driver as someone whose license is suspended… • State v. Marcum, 116 Wn.App. 526 (Div. 3 2003) (4 day old information that driver’s license was suspended based on previous stop of defendant sufficient basis to subsequently stop driver) • 4 days based on previous stop OK. How about 7? 30? Tough to predict. • Must document previous contact, and document that officer recognized the driver (not only vehicle) • Contact DOL for current license status before stop and avoid entire issue

Weaving Within Lane • A Terry stop may not be made of a vehicle that weaves within the driver’s lane of travel unless… • The weaving is observed over a lengthy period of time and occurs repeatedly, or • The officer identifies some additional conduct associated with drunk drivers based on training and experience • No direct Washington cases… • Other state/federal cases put a high burden on the officer to explain reason for stop • Without more, weaving within lane is not a traffic offense

Crossing Fog Line or Center Line • A Terry stop may not be made of a vehicle that crosses the fog line or center line unless.. • The crossing is pronounced, and • Is observed over a lengthy period of time, and • Occurs repeatedly • No direct Washington cases… • If center line crossed, and on-coming traffic, stop should be OK because of the danger of a head-on crash • If no on-coming traffic, see above

Failure To Transfer Title • A Terry stop may not be made of a vehicle to investigate a misdemeanor failure to transfer title offense, RCW 46.12.101(6), unless… • The stop is made on the 46th day after the vehicle was sold • State v. Walker, 129 Wn.App. 572 (Div. 3 2005) • State v. Green, 150 Wn.2d 740 (2004) (RCW 46.12.101(6) is not a continuing offense, so violation only occurs on day 46 after vehicle sold) • Must document exact date of sale in report, and count 46 days later • Not an infraction for first 45 days, or day 47 or later… • RCW 46.12.101 mandates increased penalties the buyer/owner must pay, but those penalties are not defined as infractions justifying a stop of the vehicle

Private Property Traffic Infractions • Washington’s traffic infraction statutes in Title 46 RCW generally only apply to actions taken on public roadways… • See RCW 46.04 for definitions of “highway” and “roadway” • State v. Brown, 119 Wn.App. 483 (Div. 2 2003) (RCW 46.61.305(1)’s requirement to signal before turning does not apply to private property) • One notable exception is parking in a disabled parking space without a permit… • RCW 46.16.381(9)

Private Property Traffic Crimes • Some criminal traffic offenses may be committed anywhere in the state, while others only on public roadways… • Officers should take care when contacting a suspect believed to have committed a criminal traffic offense on private property to verify that the criminal statute applies to private property actions • Private property traffic crimes which may be prosecuted include… • Reckless driving, RCW 46.61.500 • First degree negligent driving, RCW 46.61.5249 • Driving while license suspended, RCW 46.61.342(1) • Minor driving after consuming, RCW 46.61.503 • DUI and physical control, RCW 46.61.502, 46.61.504 • But see State v. Day, 96 Wn.2d 646 (1981) (DUI statute does not apply to intoxicated driver rapidly driving in circles in private field owned by parents where driver not on or near a public road and public had no right to be in field)

Questioning Unrelated To Reason For Traffic Stop - Art. 1, § 7 • Washington const. art. 1, § 7 prohibits questions unrelated to the reason for a traffic stop unless… • The officer has an independent lawful basis for the questioning… • State v. Allen, 138 Wn.App. 463 (Div. 2 2007) • Asking for driver’s license, vehicle registration and insurance to verify identity, driver’s license status, and check for outstanding warrants is OK • Officer must document in report the information known prior to the unrelated questioning which justified the unrelated questions… • Terry “reasonable suspicion” standard • Failure to do so will result in evidence suppression!!!

Questioning Unrelated To Reason For Traffic Stop – 4th Amendment • The Fourth Amendment permits questioning unrelated to the reason for a traffic stop so long as… • The duration of the detention is not “prolonged” • United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007) • Washington’s constitution provides greater individual privacy protection than the federal constitution… • So, the 4th Amendment and United States v. Mendez do not apply in Washington

Lying To An Officer • When a Terry detainee provides a false name, false date of birth, false address, or says he had no alcohol to drink (yet is clearly intoxicated)… • Always consider the gross misdemeanor crime of false statement to public servant, RCW 9A.76.175 • Report must include discussion why the information is “reasonably likely” to be relied upon by a public servant • State v. Godsey, 131 Wn.App. 278 (Div. 3 200) • False statement is a crime of dishonesty under Evidence Rule 609(a), which means a jury will hear about a false statement conviction the next time (and every time) the defendant testifies in court… • Obstructing a law enforcement officer, RCW 9A.76.020, only applies to a suspect’s actions, not words • State v. Spartacus Williamson, 84 Wn.App. 37 (Div. 2 1996) • Obstructing is not a crime of dishonesty

Pretext Traffic Stops Prohibited In Washington - Art. 1, § 7 • Officers may not use Washington’s traffic laws as a pretext for stopping a vehicle for other investigative purposes… • State v. Ladson, 138 Wn.2d 343 (1999)… • Lacey officer and Thurston County detective on proactive gang patrol did not make routine traffic stops but did use traffic infractions as a means to pull people over to initiate contact and questioning • Stopped driver and Ladson (passenger) after following vehicle for awhile based upon 5 day old expired tabs • Officers aware that driver “rumored” to be involved in drug dealing. Found drugs, and arrested driver and Ladson. • Held that the existence of an objective traffic law violation may not be used as a pretext for stopping vehicle for other investigative purposes

Traffic Stop By Officer On Duty To Enforce Traffic Laws Not Pretextual • Much pretextual litigation has occurred since Ladson • Cases are clear that traffic emphasis patrols and enforcement of traffic laws by officer in the normal course of officer’s duties are not pretextual unless… • There is evidence that the officer was engaged in gang, drug, or another specific kind of investigation rather than on routine patrol… • State v. Nichols, 162 P.3d 1122 (S.Ct. July 19, 2007) • Officer’s knowledge or belief that drug transaction might have occurred does not make traffic stop pretextual if officer is on traffic patrol and the officer’s actions upon stopping the vehicle are consistent with actions generally taken by patrol officer… • State v. Hoang, 101 Wn.App. 732 (Div. 1 2000)

Opening Containers Seized During Terry Frisk For Weapons • An officer lacks a lawful basis to open a cigarette package seized from a passenger during a Terry pat-down weapons frisk… • State v. Horton, 136 Wn.App. 29 (Div. 3 2006)… • Opening a cigarette package not justified once officer determines the package is not a weapon… • Officer may withdraw an object from a suspect if the object feels like it might be a weapon • But officer may not open object unless officer documents particularized circumstances in support of belief that suspect had weapon in package… • Generalized belief package “could” contain a razor blade or other weapon not enough absent explanation why detainee might have and use such weapons • Officer can be protected by tossing the pack out of reach

How Broad Is Horton? • We interpret Horton as restricting officers from opening any container during a Terry weapons frisk that is only large enough to hold a “miniature” weapon • Horton does not overrule other cases that permit officers to open containers that are large enough to contain a full-size or small weapon… • But officers must document the reasons for opening any container seized during a Terry weapons frisk • Washington appellate courts will likely take years to clarify the parameters of Horton

Possession Of Drug Paraphernalia Is Not A State Crime • Mere possession of drug paraphernalia does not provide probable cause for arrest under state law because possession of drug paraphernalia is not a crime under RCW 69.50.412(1)… • The statute requires evidence that the drug paraphernalia was used “to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pace, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.” • State v. O’Neill, 148 Wn.2d 564 (2003)

What Is Needed For Use Of Drug Paraphernalia? • Officer must document the specific controlled substance… • “Green leafy vegetable matter” is not enough because green vegetable matter is not a controlled substance • If it is marijuana, officer must say so • Officer must explain how officer came to conclusion the substance was controlled… • Training, experience, on-site drug test, etc. • The presence of drug residue may provide PC to arrest… • If the officer documents the specific controlled substance and how the officer knows the residue is a controlled substance

Possession Of Drug Paraphernalia City Ordinances? • Some cities have local ordinances making possession of drug paraphernalia a crime… • We have concern about the constitutionality of such an ordinance when the definition of “paraphernalia” is broad enough to cover pretty much everything • Due process vagueness principles… • arbitrary enforcement by law enforcement, or • public unable to determine what is permitted and prohibited by ordinance • Speak with your city attorney

A Prosecutor’s Perspective On Traffic Cases Kitsap County Chief DPA Jeffrey J. Jahns

Topic 3DUI Arrest Reports

“Thorough Factual Investigation” • RCW 9.94A.411(2)(b)(i) discusses the requirement for a thorough factual investigation before a prosecutor makes a charging decision… “A prosecuting attorney is dependent upon law enforcement agencies to conduct the necessary factual investigation which must precede the decision to prosecute. The prosecuting attorney shall ensure that a thorough factual investigation has been conducted before a decision to prosecute is made. In ordinary circumstances the investigation should include the following: (a) The interviewing of all material witnesses, together with the obtaining of written statements whenever possible; (b) The completion of necessary laboratory tests; and (c) The obtaining, in accordance with constitutional requirements, of the suspect’s version of the events.”

Follow-up Investigation • RCW 9.94A.411(2)(b)(i) continues with a requirement for follow-up investigation… “If the initial investigation is incomplete, a prosecuting attorney should insist upon further investigation before a decision to prosecute is made, and specify what the investigation needs to include.”

Exceptions • RCW 9.94A.411(2)(b)(ii) discusses exceptions to the “thorough factual investigation” standard… “In certain situations, a prosecuting attorney may authorize filing of a criminal complaint before the investigation is complete if: (a) Probable cause exists to believe the suspect is guilty; (b) The suspect presents a danger to the community or is likely to flee if not apprehended; or (c) The arrest of the suspect is necessary to complete the investigation of the crime. In the event that the exception to the standard is applied, the prosecuting attorney shall obtain a commitment from the law enforcement agency involved to complete the investigation in a timely manner. If the subsequent investigation does not produce sufficient evidence to meet the normal charging standard, the complaint should be dismissed.”

Why A Thorough Police Report? • A thorough and well-written police report has many effective uses… • Documents what occurred to help refresh officer’s memory at a perhaps much later court hearing • Provides PC in support of the filing of each criminal charge • Provides info to prosecutor to assist in assessing aggravating and mitigating circumstances in support of plea offer • Permits a court to find PC in support of the charge(s), and to set bail • Provides info to defense attorney to convince client to plead guilty • Provides info to defendant to convince defendant he/she is guilty • Provides info to court to assist in imposing proper sentence • Provides info to probation to assist in proper monitoring of defendant • Provides info to treatment providers to assist in proper treatment of defendant

Convincing The Defense Attorney? • A defense attorney who believes the evidence will convict a client has no reason to reject a plea offer and go to trial, because… • The risk of conviction is high • The defendant if convicted will probably receive a sentence with more jail than the initial plea offer • Defense attorneys have enough work to do without going through suppression or dismissal hearings with no hope of success • Defense attorneys respect a well-written and detailed report because it is difficult to convince a jury that the officer is biased, or lazy, or incompetent, or unfair to the defendant… • Especially when the officer lists items favorable to the defendant (the defendant was cooperative), but concludes for example that the defendant was obviously too intoxicated to drive • A prosecutor’s argument to the jury: “The officer was unfair to the defendant? Why then list items to help the defendant’s case? The officer was professional and unbiased. You should believe the officer’s conclusion that the defendant was intoxicated.” • No attorney likes to lose!

New Prosecutors • District and Municipal Court prosecutors are typically the newest and least experienced prosecutors in the office… • The DUI defense bar is often very experienced, and files lengthy and complicated DUI motions • These new prosecutors have huge caseloads, and should not “go to bat” for an officer who refuses to provide the prosecutor with good work product… • Why should I as a supervising prosecutor “support” shoddy police work? • It is much easier to triage poorly handled cases, and work hard on the cases where the officer also worked hard • Prosecutors, like the defense and courts, know who are the “good” and “bad” officers

What Does An Officer Never Going To Court Really Mean? • Does an officer never going to court mean the reports are so well written that… • The defendants all plead guilty because the defense attorney believes the case is a lost cause? • Or does it mean that the officer provides shoddy work product and… • The cases are all compromised by the prosecutor? • Or does it mean that the prosecutor is SOT (scared of trial), is not following office plea negotiation standards and is improperly compromising cases? • A supervising prosecutor should be constantly monitoring new prosecutors for SOT • If the new prosecutor is taking cases to jury trial, then an officer never going to court is option 1 or 2 above

Two Ways To Prove Alcohol DUI • RCW 46.61.502 (DUI) and RCW 46.61.504 (physical control) provide two different methods of proving the crime… • Within 2 hours of driving/physical control, the person had an alcohol concentration of 0.08 or higher as shown by an accurate and reliable test of the person’s breath/blood, or • At the time of driving, the person was under the influence of or affected by intoxicating liquor • In breath test cases, prosecutors typically submit evidence to cover both methods • In refusal cases, prosecutors obviously do not have a breath test so the “under the influence” method is the only option

Definition Of “Under The Influence” • “A person is under the influence of or affected by the use of intoxicating liquor if the person’s ability to drive a motor vehicle is lessened in any appreciable degree.” • Washington Pattern Jury Instructions Criminal 92.10 • An officer’s opinion of intoxication must focus on why the defendant’s ability to drive was “lessened in any appreciable degree”… • The officer’s report must document why the officer came to that opinion • How was the defendant’s driving ability lessened when compared to a sober driver?

A Prosecutor’s Perspective On Traffic Cases