DUI and Retrograde Extrapolation

Delayed Blood-Alcohol Estimates Draw Criticism in Cases.

The way prosecutors saw it, the Defendant was driving while intoxicated when he raced own a Long Island freeway at 100mph this summer and slammed into a car carrying a family home from church. The fiery wreck killed a father and his two children. The defendant’s blood-alcohol reading, taken Retrograde Extrapolationabout four hours later, was 0.06 which is below the legal limit of 0.08. The Defendant was still charged with Driving under the influence and vehicular homicide because a forensic technique estimated that his blood-alcohol level at the time of the crash was actually 0.12.

This technique is known as retrograde extrapolation and has been used to win convictions in DUI cases nationwide for decades, but has increasingly come under scrutiny by drunken-driving experts as an unreliable measure of a person’s intoxication. Some defense attorneys have even labeled it junk science. A former prosecutor who is representing the Defendant stated that, “Retrograde extrapolation is about as scientifically reliable as astrology. It relies on the assumption that a person’s blood-alcohol content peaked prior to the arrest without any basis to prove that.”

While there are no national statistics to document the use of retrograde extrapolation, prosecutors in many states have offered evidence of estimated intoxication levels at trial, whereas, courts in other states have severely restricted its use requiring prosecutors to use only blood-alcohol readings taken at the time of arrest. Prosecutors who have used retrograde extrapolation swear by it as a proven technique that doesn’t reward DUI suspects for fleeing the scene and avoiding immediate blood-alcohol testing. Experts say the intoxicating effects of alcohol are not experienced until it is absorbed into the blood stream. After a person stops drinking, the blood-alcohol level peaks when the most alcohol has been absorbed and the least amount of alcohol has been eliminated. Defense attorneys argue that alcohol absorption and elimination rates vary widely depending on a person’s gender, drinking habits, the type of beverage, what a person ate and how much, and whether a person had experienced trauma, which sometimes slows the rate.

Don’t trust the junk science. If the police “expert” says a person was drunk, you need to hire an experienced DUI attorney who knows how to attack drunk driving, and DWI, charges. The experienced DUI attorneys at Durflinger Oliver & Associates will meet with you for free and explain your options. Call today, and ask about our convenient payment plans and military discount – 253-683-4180.

Criminal Attorney

Racing Can Be Fun

Racing Attorney

Reckless Driving Racing?

Synopsis ~

Reckless Driving Racing is fun…and illegal.

RCW 46.61.530  states that “No person or persons may race any motor vehicle or motor vehicles upon any public highway of this state. Racing is willfully comparing or contesting relative speeds by operation of one or more motor vehicles, whether or not the speed is in excess of the maximum speed prescribed by law. WPIC 95.04 

Speeding alone is not Reckless Driving, or Reckless Driving Racing. A racing conviction can result in up to 364 days in custody, a 30 day licensing suspension, SR22 requirements, and a fine of up to $5,000.00.

Racing is illegal, but even if you think that you were caught red handed, the prosecutor may not have enough evidence to convict you. Admit nothing and immediately contact an experienced Reckless Driving/Racing attorney, or criminal attorney.

What is Racing?

Any Reckless Driving Racing attorney with a fast car or bike will tell you that comparing speeds with a friend is great fun. But what happens when Johnny Law breaks up the party, impounds your whip and throws you in jail? Should you just plead guilty? Take a plea bargain? Take it to trial? This article will attempt to answer those questions.


What is Reckless Driving Racing in Washington State?

Reckless Driving Racing is a criminal traffic gross misdemeanor, in addition to being major moving violation traffic offense in Washington State.

When a person tries to compare or contest speed by the operation of a motor vehicle, he is guilty of Racing. The penalty for a conviction of this gross misdemeanor can include up to 364 days in jail, a fine of no more than $5,000, and license suspension of no less than 30 days (RCW 46.61.500).

A Motor Vehicle is defined in RCW 46.04.320 as “every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. “Motor vehicle” includes a neighborhood electric vehicle as defined in RCW 46.04.357. “Motor vehicle” includes a medium-speed electric vehicle as defined in RCW 46.04.295. An electric personal assistive mobility device is not considered a motor vehicle. A power wheelchair is not considered a motor vehicle. A golf cart is not considered a motor vehicle, except for the purposes of chapter 46.61 RCW.

We recently represented a motorcyclist who was riding with his Tacoma MC club on the Westbound 512. A WSP aircraft recorded a bunch of riders driving awfully fast and weaving in and out of traffic to be the first to a Mexican restaurant on South Tacoma Way. The video apparently showed quite a few guys racing with each other. The pilot filmed riders individually and as a group, and called troopers on the ground to meet the riders at the Restaurant.

My client was parked and standing next to his bike when the trooper arrived. The pilot, circling in the air about 800’ over the scene positively Identified by client and his friends as the riders he witnessed racing on the 512. The ground Trooper wasn’t so confident, so he didn’t arrest everyone, but he did write up everyone there for Reckless Driving Racing.

The court case was a circus. The Trooper’s video did appear to show very, very small motorcycles moving faster than the cars around them. What you couldn’t make out was the license plate number, make, model, or even colors of the bikes. Furthermore, there were huge breaks in the video where the pilot pointed the camera at other riders ¼ mile from my client and his friends. The case was an absolute cluster and we got a dismissal.

Cops love writing people for Reckless Driving Racing whenever they see someone driving a lowered import with their friends at a speed that even suggests racing. We’ve also seen racing charges where a couple of buddies were simply trying to get home in time to see their favorite show. If you’re stopped for racing, don’t argue with the cop, but more importantly, don’t say anything. Cops stopped hyou because they thought you were breaking the law. No matter what you say, the cops are going to hear you admit to racing. Don’t help them. Don’t say anything. Call an experienced traffic lawyer.

We offer free consultations, military discounts, and clear communications. Call us today to discuss how we can help you fight these criminal charges. You can trust us to give you the truth; the whole story, good, or bad. Call today.

Traffic Lawyer ~ James E. Oliver, Esq.

Traffic Lawyer ~ James E. Oliver, Esq.


James Edmund Oliver, Jr. is a Traffic attorney with over 15 years of experience representing defendants against major moving violation charges. Some of the more common charges he defends against are reckless driving, negligent driving, speeding and speed unsafe for conditions. After serving six years in the Army Reserves, James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as well respected and zealous advocate for a wide variety of clients.

Weed and Driving Okay?

DUI Stoned Driver

False Advertising?

If you want to avoid a car crash, trade a joint for that glass of wine. A study from the National Highway Traffic Safety Administration (NHTSA) found that drivers who used marijuana were at a significantly lower risk for a crash than drivers who used alcohol. After adjusting for age, gender, race and alcohol use, drivers with marijuana in their system were at about the same level of accident risk as those who had not used any drugs or alcohol prior to driving. Apparently, weed and driving are okay.

Interestingly enough antidepressants, pain killers, stimulants and quite a few other legal and illegal drugs do not significantly increase the risk of being in a crash. Alcohol use greatly increases the likelihood of an accident even at modest blood concentrations. In fact, a blood alcohol concentration over 0.05 increases your odds of a wreck nearly seven fold.

The study’s findings underscore an important point: The measurable presence of THC (marijuana’s primary active ingredient) in a person’s system doesn’t correlate with impairment in the same way that blood alcohol concentration does.

The NHTSA study points out that “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.” There are many reasons why detectable drug presence doesn’t indicate impairment the way it does with alcohol. Most psychoactive drugs are chemically complex molecules whose absorption, action and elimination from the body are difficult to predict. Also, there are considerable differences that exist between individuals with regard to the rates with which these processes occur. Alcohol is more predictable. In heavy marijuana users, measurable amount of THC can be detected in the body days and even weeks after the last use, and long after any psychoactive effects remain. Washington Initiative 502, passed in 2012, set a legal limit at which the driver is automatically determined to be impaired at 5 of nanograms of active THC per milliliter of blood. However, this number tells us nothing about whether a person is impaired or fit to drive.

DUI Basics

DUI, DWI, Drunk DRiving, Physical Control

Call today for your free consultation.

For many people, a first time DUI raises a lot of questions. What does “under the influence mean”? What happens to my license? What happens in court? What is “Mandatory Minimums Jail Time” (Man Mins)? What is EHM? What is an Ignition Interlock Device? What is probation?

Under the Influence

In the State of Washington, you are considered to be Driving Under the Influence (DUI), if your Blood Alcohol Concentration, or Breath Alcohol Concentration is .08 or greater, or if the THC concentration is greater than 5 nanograms per milliliter of blood.

Even if the alcohol or THC in your blood is below the above limits, you may still be “under the influence of drugs or alcohol if your driving was substantially impaired by the effects the marijuana or alcohol.

An experienced DUI attorney can help you understand the numbers and attack the way the testing was done, so that you get the best result possible.

What Happens to My License

There are several ways to lose your license following a DUI arrest. One way is to lose the administrative hearing, which you have to request and pay for. If you don’t request the DOL hearing, you will automatically lose you license. Another way to lose your license is if you’re convicted of DUI, or reckless driving. A drunk/drugged driving conviction will lose you your license for between 90-365 days. A reckless driving conviction will cost you your license for 30 days. Of course, both of these scenarios assume that you are not a Habitual Traffic Offender.

You may be eligible for an Ignition Interlock License (IIL), or an occupational license. With either license you must get SR-22 insurance and pay an application fee to the DOL. The also requires installation of an Ignition Interlock Device that randomly tests the driver for alcohol. An experienced DUI defense attorney is your best chance at keeping your license, or getting it back.

What Happens in Court

Your first hearing is called the Arraignment. This is your chance to plead not-guilty. The judge or commissioner will then order conditions of release. These conditions address the following: Consume no alcohol/drugs without a valid prescription; drive only with valid license and insurance; don’t refuse breath or blood tests; Don’t drive with BAC above .00; obey all laws; appear for all court appearances.

The judge can also order bail, EHM, and Ignition Interlock Device.

Your next hearing is the Pre Trial Conference (PTC), which is your defense attorney’s opportunity to negotiate your case with the prosecutor. You may have several PTC’s before settling the case, or proceeding to trial.

What is “Mandatory Minimums Jail Time” (Man Mins)?

A first DUI with a BAC below .15 requires 1 day in jail, or 15 days EHM, a $950 fine, and cost recovery for the arresting officer’s time. If the BAC was above .15, then the Man Min is two days in custody, or 30 days EHM.

The Maximum Term and Fine is 364 days in custody, and a $5,000 fine. The maximum is very rarely given.

What is EHM?

Electronic Home Monitoring is frequently referred to as “house arrest”. EHM is considered an alternative to confinement, which means the person is still considered to be in custody, but not in jail. While on EHM, the person must wear a monitoring “bracelet” on their ankle. The bracelet reports where they are. Although, people on EHM can go to work, doctor’s appointments, and do some other chores outside the house, all of these activities require prior approval.

You are frequently required to pay for EHM. Costs range from $9 – $20 per day, so it can be very expensive.

What is an Ignition Interlock Device

As mentioned above, an Ignition Interlock Device (IID), also referred to as a “blow and go”, is installed in your car and will only allow the driver to start and continue to operate the vehicle after performing alcohol free breath tests. The driver is required to pay for the device, if required. Costs range from as low as $80 per month, to as high as $150.

What is probation?

There are two types of probation: Formal, and Bench. Formal probation requires meeting with an assigned probation officer as often as he or she wants to meet with you. Bench probation simply means that your name is loaded into a computer and stays there unless you get into new trouble. At that point, the computer tells the court to call you in to explain why you are in trouble again. Probation generally last five years, but people are rarely on formal probation for the entire five years. If you violate the terms of your probation, you could find yourself in custody for 30 days.


DUI, DV, Defense Attorney

Natalie Durflinger, Criminal Attorney

Natalie Lynn Durflinger is a criminal defense attorney with over 7 years of experience representing defendants in DUI, Criminal Traffic, and misdemeanor cases. Some of the more common charges she defends against are drugs, firearms, assault, DV, and theft. Natalie completed her legal studies at Gonzaga University School of Law where she was a Thomas More Scholar before graduating with Honors in 2007. Natalie is respected by judges, law enforcement officers and deputy prosecutors across the Puget Sound.

DUI Investigation

DUI Drunk Driving

DUI Investigation

If a cop thinks you’ve broken the law, he can pull you over. Once he pulls you over, he can demand your license, registration, and proof of insurance. He can also run your name to find any outstanding warrants, and to see if your license is current. If, however, he wants to do much more than write you a ticket and send you on your way, then he needs reasonable suspicion that you were involved in criminal behavior.

So how does a cop get to pull you out of your car? The answer is found in State v. Allen, 138 Wn.App. 463,471 (2007). The Allen Court held that an officer can remove a driver from a vehicle stopped for an infraction for two different reasons: (1) Removal is within in the scope of the original traffic stop, or (2) the officer has acquired a lawful, reasonable suspicion that justifies further investigation. Id. At 471. The Allen Court held that an officer’s removal of a driver from a vehicle was not within the scope of traffic stop for a license plate violation, when the driver was questioned regarding the passenger’s identity. The court called the officer’s interrogation of the driver a “fishing expedition”. Id. at 471 (citing State v. Reding, 199 Wn.2d 685 (1992)).

Once the traffic-related purpose of the stop was fulfilled, further detention without a reasonable suspicion of criminal activity was improper. State v. Armenta, 134 Wn.2d 1, 15-16 (1997). If the officer isn’t justified in taking you out of your car, then your attorney might be able to convince a court to suppress any negative evidence that the officer discovered after you got out of the car. See State v. O’Neill, 148 Wa.2d 564, 583 (2003). When “an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.” State v. Kennedy, 107 Wn.2d 1 (1986).

You can trust the former prosecutors and experienced defense attorneys at Durflinger Oliver & Associates to do everything possible to defend you and protect your future. Call today to schedule your free consultation, and ask us about a military discount and easy payment plans.



James E. Oliver, Esq.

James E. Oliver, Esq.

 

James Edmund Oliver, Jr. is a criminal attorney with over 15 years of experience representing defendants in serious criminal cases. Some of the more common charges he defends against are drugs, firearms, assault, and theft. James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as respected and zealous advocate for a wide variety of clients.

Relax, it’s legal to Drink and Drive

DUI/DWI

It’s okay to drink and drive.

Cops, prosecutors and jurors have forgotten that it’s legal to drink and drive. It is only illegal if you are driving under the influence of alcohol, drugs or a combination the two. So go on and have that glass of wine with dinner.

The prevailing attitude begs the question of why everyone is acting like you can’t enjoy a glass of wine with dinner? Police are arresting and prosecutors are charging anyone with DUI who even merely has alcohol on their breath (or the odor of marijuana) whether they are actually impaired or not.

Unfortunately, cops can basically create their own reality with a little help from the Standardized Field Sobriety Tests (SFST). Any mistakes made while performing these tests will arm the prosecutor with all the evidence he needs to try and prove that you were impaired, regardless of your BAC. And good luck finding a jury that understands or actually believes that it is legal in Washington State to consume alcohol and drive.

Our office is seeing more and more people charged with DUIs that are well under the legal limit of .08. I have seen BACs as low as .02 being charged as a DUI, with the prosecutor arguing that the individual, who was over the age of 21, was impaired based on bad driving and poor performance on the SFSTs.

I recently represented a Hispanic client who was charged with DUI even though his BAC was only .05. The prosecutor pointed to the fact that he performed the SFTS poorly as proof of impairment. Unfortunately, the client didn’t speak english and could have followed the cops instructions even though he wanted to. Of course, the cop didn’t put the language problems in his report.

Officers routinely go through the SFSTs in court to show how easy they are to perform. What they don’t tell the jury is that they have performed these tests many times and have muscle memory which allows them to perform them well. The average driver has never performed these tests, will be nervous, and will be performing them on the side of the road with varying conditions, all of which will affect performance. I can’t do the SFSTs completely sober. A lot of people have problems with them, but all cops see is a drunk.

DUI patrols are in full force and they are looking for ANY reason to pull you over if you are on the road after 9:00 pm. If a cop pulls you over for an equipment infraction (taillight out) and you refuse to perform the field sobriety tests, it would be very had to charge you with any crime. If you do choose to perform the field sobriety tests, it will be up to the officer to decide whether he thinks you performed poorly. He’s having you do the tests because he thinks you’re drunk. Guess how he’s gonna see you do the tests? I watch in-dash video every day where officers claim that a defendant swayed, lifted his arms for balance or had difficulty walking a straight line, and yet the video shows the opposite. If a cop asks you to do the tests, you need to immediately demand an attorney.

I typically advise my clients to take the BAC at the station but it is important to speak to your attorney prior to taking this test. You have a right to speak with an attorney at this point and you should exercise that right. If you do not have an attorney that you can reach after hours, you can request to speak with a public defender.

You can depend on the experienced former prosecutors and experienced criminal attorneys at Durflinger Oliver to fight to defend you. Call today for your free consultation and ask about our military discount and easy payment plans.

~ Natalie Durflinger, Partner

Cops’ Flawed Tests Create DUI

SFST KlingonIf you’re pulled over for driving under the influence, don’t trust the cop’s tests. Too many people think that the cops and the machines they use are perfect. The fact is they’re not.

Any Tacoma DUI attorney will tell you that the Preliminary Breath Test cops “offer” in the field isn’t even allowed in trial for proof of DUI. It gets even better with the Datamaster machine, which went out of production in the late 1980s. Over the years, there have been numerous problems with Datamasters and the people who certify them. One thing even the cops have to agree with is that there is a margin of error in every test. That means that the number the machine spits out about your blood alcohol concentration (BAC) is really only an estimate.

Cops and State experts also have to agree that the machines can give bogus numbers indicating a driver is drunk even if he isn’t. That’s why it’s important to have an experienced DUI lawyer defend you.

These false results are frequently caused by residual alcohol in the mouth of the person being tested. Even if the driver’s BAC is under the legal limit, residual alcohol can cause an exaggerated BAC reading. Residual alcohol can be caused by everything from belching to using mouth wash.

For this reason, the State of Washington requires that officers remove all foreign objects from the driver’s mouth and observe him/her for at least 15 minutes before administering the BAC test. Removing foreign objects (food, dip, studs, gum) prevents alcohol from “hiding” in these items and causing a false high reading. The 15 minute observation period allows the residual alcohol to evaporate off. Of course, officers do not always follow these requirements and this can lead to an inaccurate result.

Don’t Trust Cop Tests

Tacoma DUI Tests

If a cop has you do a test, he already thinks your drunk. Guess what his test will show?

If you’re pulled over for driving under the influence, don’t trust the cop’s tests. Too many people think that the cops and the machines they use are perfect. The fact is they’re not even close to great much less perfect.

Any Tacoma DUI attorney will tell you that the Preliminary Breath Test cops “offer” in the field isn’t even allowed in trial for proof of DUI. It gets even better with the Datamaster machine, which went out of production in the late 1980s and is no longer warranteed to accurately test for blood alcohol concentration (BAC). Over the years, there have been numerous problems with Datamasters and the people who certify them. One thing even the cops have to agree with is that there is a margin of error in every test. That means that the number the machine spits out about your blood alcohol concentration is really only an estimate.

Cops and State experts also have to agree that the machines can give bogus numbers indicating a driver is drunk even if he isn’t. That’s why it’s important to have an experienced DUI lawyer defend you. In fact, before you take any test, you can ask to speak with a lawyer to be safe from false test results.

These false results are frequently caused by residual alcohol in the mouth of the person being tested. Even if the driver’s BAC is under the legal limit, residual alcohol can cause an exaggerated BAC reading. Residual alcohol can be caused by everything from belching to using mouth wash to booze soaked food stuck in a cavity or dental work.

For this reason, the State of Washington requires that officers remove all foreign objects from the driver’s mouth and observe him/her for at least 15 minutes before administering the BAC test. Removing foreign objects (food, dip, studs, gum) prevents alcohol from “hiding” in these items and causing a false high reading. The 15 minute observation period allows the residual alcohol to evaporate off. Of course, officers do not always follow these requirements and this can lead to an inaccurate result.

If you have been charged with driving under the influence in Tacoma, Puyallup, Fife, Fircrest, Lakewood, Seattle, or any other puget sound court, an experienced DUI attorney at Durflinger Oliver & Associates is ready to help. Call today for a free consultation.

Weed DUI Breath Test On The Horizon

Weed Preliminary Breath Test

Researchers are close to fielding a new breath tester for Marijuana – The new device is not shown above.

Research at WSU has led to the development of a portable breath test to detect marijuana DUI. Drivers under the influence of marijuana have become an increased concern since Washington voters legalized the recreational use of marijuana in 2012. A quarter of blood samples taken from drivers in 2013, the first full year the initiative was in effect, came back positive for marijuana.

WSU chemistry professor Herbert Hill and WSU doctoral student Jessica Tufariello are working on a handheld device that uses a technique called ion mobility spectrometry to detect THC, the psychoactive component of marijuana, on a person’s breath. Currently, officers and prosecutors rely on a blood test to determine the amount of THC present in a driver’s blood. These blood results are not immediately available to patrol officers who suspect a person of driving while impaired. An experienced Tacoma DUI Attorney can attack weed dui breath tests when they become available.

Initiative 502 set 5 nanograms of active THC per milliliter of blood as the legal limit at which a driver is automatically determined to be impaired. Initially, the marijuana breath test under development at WSU probably won’t be able to pinpoint the level of THC in the body; it will only tell officers that some THC is present. It is believed that this would be a helpful tool to officers as they decide whether to arrest a suspected impaired driver. However, since no numerical value is obtained with this test, a positive result is sure to result in an arrest.