When you are stopped for DUI two separate proceedings begin. One is an administrative proceeding that will be conducted through the Department of Licensing. The Department of Licensing only has the power to suspend your driver’s license. The criminal law process is the one that people tend to have the greatest concerns over. Below is a brief description of how most DUI charges travel through the criminal justice system from start to finish. Of course, each case is unique and yours may be settled very quickly without trial or may follow each step over the course of several months
After arresting someone on suspicion of DUI, most law enforcement officers will follow a very similar pattern of procedure from the time of arrest to the eventual release or booking. Review the different processing events below. Compare them with what happened in your case. Though the order may change somewhat, most if not all of them should have occurred in your case. If the officer in your case did not follow all of these steps, make a note of it. It may be important in the defense of your case.
Miranda rights
Shortly, if not immediately after arrest, the officer will normally advise the individual of the constitutional rights the arrested person has. In many cases, the officer will make an oral advisement right after the arrest, while still in the “field”, and a written advisement once back at the station. The advisement, among other things, provides notice of the right to remain silent and the right to an attorney. If these rights were not provided after the time of the arrest, it could result in the suppression of any statements the officer has attributed to you as well as the suppression of other evidence, including the results of any breath test or alleged refusal to take a breath test.
Implied Consent Warnings
After advising the arrested person the arrested person of his “Miranda” rights, most officers will then review what are known as implied consent warnings. These warnings put the person on notice that the officer will be asking for a breath or blood sample and that while there is a right to refuse the request, certain consequences would attach to that refusal. They also warn of the consequences that would occur if there is a BAC result at or above the legal limit of .08. They are called “implied consent” warnings because every person who drives in the State of Washington impliedly consents to give a breath or blood sample if requested by an officer after a lawful arrest. It is required by law that before any breath or blood sample can be extracted, these warnings must be given, either orally or in writing. Failure to provide these warning would result in the suppression of any BAC results or a refusal.
Mouth Check
A condition precedent to the admissibility of any breath test, either in court or during a DOL hearing, is that the officer checked the mouth of the arrested person to make sure that it was free from any foreign matter. The officer must then keep the individual under direct observation for at least 15 minutes to ensure that the arrestee does not put anything into his mouth or belch or vomit. Failure by the officer to do so, if proven, would result in the suppression of the breath test. Different officers will follow this step at different times during the process. Some don’t follow it at all. From your perspective, note if the mouth check occurred, at what point during the process and if the arresting officer ever left your sight after the mouth check.
DUI Questionnaire
Unless a person invokes his right to remain silent, the arresting officer will attempt to ask a series of questions, some of which are mundane, others of which might be used against the arrestee at a later date. These questions are uniform in every case. Examples of the ones met to trick the person are, “What is the date?” “Without looking, what time is it?” “In what direction were you traveling prior to the stop?” It is important to know that answering these questions is completely voluntary and most, if not all, DUI attorneys will advise you not to answer them.
BAC
Toward the end of the processing, the officer will ask for a breath sample or in some cases a blood sample. If the person refuses, the officer will make a note of it and proceed to the final steps. If the person agrees to blow into the BAC machine, he will be required to give two separate samples. Despite agreeing to “blow”, if the officer believes the person is purposely not blowing hard enough or if he only gives one of the two requested samples, he can still write it up as a refusal.
Release or booking
Once the officer has concluded his investigation and obtained all of the evidence that has been provided, a decision will be made on whether to release the arrestee or book him directly into jail. In the majority of cases, the person will be released and either called a cab, driven to a late night diner (Denny’s is very popular) or in some cases, driven home by the officer. In some instances, the person will be booked directly into jail and forced to either bail out or see a judge. It is in the discretion of the officer whether to book or release but in some jurisdictions, booking is either mandatory or the usual course of action. See our Where Were You Arrested? section for more information.
Provision of DOL/Court Information
Finally, after the person has been released he will be provided with a notice from the Washington Department of Licensing about requesting a hearing to contest any license suspension, a temporary driver’s license (in cases of a BAC over .08 or a refusal) and potentially notice of the first court appearance. The request for the DOL hearing must be made within 20 days of arrest or is deemed waived, meaning the license will automatically be suspended. Even if the officer forgets or even intentionally fails to provide this information, the DOL will still be expecting the person to make a hearing request. If you were not provided a hearing request notice, contact a Washington DUI attorney immediately. See our DOL section for more information.
Whether or not the arresting officer provides a notice of court date is a little more hit and miss. In some jurisdictions, the officer will give notice of arraignment upon release. In many others, the court will mail notice of arraignment once the prosecutor in your jurisdiction files a DUI charge. If it is provided by the arresting officer, it is likely that the arraignment will be within 24-72 hours. A mailed notice of arraignment could take up to several months to receive. See Where Were You Arrested? for more information.
Regardless, there are several issues that you should discuss with a DUI lawyer immediately. Contact one of our Washington DUI attorneys for a free consultation.