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Case Results

State v. C.C. No Probable Cause to Arrest

January 2012

Charge: DUI

Maximum Penalty: up to 364 days incarceration, up to a maximum $5,000 fine, driver's license suspension, ignition interlock device per DOL, 5 years probation, court ordered alcohol and drug assessment and completion of any recommended treatment.

Summary: A Trooper observed a vehicle in front of him in the right lane that was drifting side to side within its lane of travel. The Trooper observed that the vehicle had a defective brake light on the passenger side of the truck so the Trooper activated his emergency lights to conduct a stop. The vehicle slowed and pulled to the right and came to a stop. The Trooper could smell the odor of alcohol coming from the vehicle and ask the driver when his last drink was. The driver replied that his last drink was about a half hour ago. The Trooper asked the driver if he would be willing to do some voluntary standardized  field sobriety tests (SFST) and the driver agreed. Because the driver had a serious foot injury, the only SFST that was conducted was the Horizontal Gaze Nystagmus (HGN).  When performing the HGN, the Trooper observed equal tracking, equal pupils and no resting nystagmus.  The Trooper also indicated he observed a lack of smooth pursuit, distinct and sustain nystagmus at maximum deviation in both eyes with an angel of onset prior to 45 degrees. The Trooper's pre-arrest observations of the driver indicated that he was cooperative, had fair coordination, orderly clothes, bloodshot eyes, normal face color, strong order of intoxicants and slurred speech.

Attorney Pewitt argued that the Trooper lacked probable cause to arrest the driver for DUI.   An odor of intoxicants, bloodshot eyes, alleged slurred speech, and HGN is insufficient to establish probable cause to arrest for DUI.  Given the absence of impairment indicators, the Trooper relied heavily of the HGN test.  However, HGN is admitted to prove consumption only.  A witness may testify that an HGN test can show the presence of alcohol but not the specific levels of intoxicants.” State v. Baity, 140 Wash.2d 1, 10 (2000); State v. Koch, 126 Wn. App. 589, 597 (2005).  The Trooper's inability to conduct additional SFTS due to physical impairments does not lower the standard required for probable cause to arrest.  In fact, there were many indicators that suggest that the driver was not impaired. The Trooper did not indicate that the driver:

  • had any difficulty responding to his requests
  • had any problems providing his driver's license
  • had any difficultly responding to the emergency lights
  • had any difficulty getting out of his truck and walking to the back of the truck to perform the SFST

The Trooper observed that the driver's coordination was fair, facial color was normal, clothes were orderly and that he was cooperative. The Trooper provided nothing more than evidence that Mr. C had something to drink.  As Division 2 held in the Gillenwater case, in cases of Driving Under the Influence of Intoxicants [DUI], evidence that a person has had “something to drink” is insufficient to convict, and likely insufficient to establish probable cause to arrest.   See State v. Gillenwater, 96 Wash.App. 667, 671 (1999).

Legal Issue Raised:  Attorney Pewitt filed a motion to dismiss the DUI charge on the grounds that the Trooper did not have a reasonable belief that the driver was under the influence of alcohol at the time of his arrest.  Attorney Pewitt argued that even if the court accepts all of the information written in the Trooper's report as true, there was still insufficient probable cause for arrest.  Without probable cause to arrest, all subsequent evidence must be suppressed and the case dismissed.   The court agreed and the defense motion to suppress and dismiss was granted.

Result: Case Dismissed

Sheri Pewitt

A former public defender for Snohomish County, Ms. Pewitt has a reputation for successfully handling all aspects of a criminal defense case, including the arraignment, legal motions, negotiation, trial, and sentencing.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.