The first challenge to be made in a Washington State DUI is the unlawful stop by the officer of the car.
In a case, relevant to those stopped for drinking and driving, the Division One of the Court of Appeals just reminded all criminal lawyers of the high level of evidence to be found before the police can stop a citizen.
There are several levels of evidence that must be known to the police before they can do certain things. For the initial detention of people we look for "reasonable suspicion," which is the lowest amount of proof. I won't go into all the different levels here.
The interesting thing about this case, State v. Smith, is that the Court of Appeals reminds us that the burden of proof the prosecutor must have in court (to show that small belief in the officer's mind) is "clear and convincing" evidence, a much higher level. Its confusing for non lawyers but we are talking about how much proof the prosecutor has in court of what they say happened on the street in the officers mind. What the officer needed to have to stop (not arrest) a person and ask them questions is what they must prove in court. But the amount of evidence to prove that small bit of belief that the officer had is much higher, in comparison.
Think of it this way. The level of proof the prosecutor must have in a criminal motions hearing is the same as the level of proof that Congress must have to impeach the President.
Maybe the Court's language will be clearer than mine:
A Terry stop requires a well-founded suspicion that the defendant has committed or is about to commit a crime. The State has the burden to show by clear and convincing evidence that under the totality of the circumstances, a Terry investigatory stop is justified.
As noted above, a Terry stop requires a well-founded suspicion that the defendant has committed or is about to commit a crime. "The officers' actions must be justified at their inception." "[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant that intrusion.'"The State has the burden to show by clear and convincing evidence that under the totality of the circumstances, the Terry stop was justified.
Here is the Courts summary of the facts:
King County Sheriff's Deputy Benjamin Callahan observed Smith riding his bike without a helmet while the deputy was patrolling an area in the city of Shoreline. The deputy was aware of recent reports of car prowling in a nearby area. As Smith rode along the sidewalk, he peered into the windows of the cars parked along the street. Deputy Callahan testified at the suppression hearing that after Smith passed him on his bike, he turned his car around to follow Smith. He did so both to conduct an investigatory stop based on Smith's conduct and because of his failure to wear a bike helmet. Deputy Callahan attempted to talk to Smith, who ignored him.
The deputy then turned on his patrol car's lights and told Smith to "stop." Smith ignored this command and continued to bike toward his house. Deputy Callahan ran after Smith and physically seized him. In a search incident to arrest, the deputy discovered a gun in the fanny pack around Smith's waist. Following Miranda warnings, Smith admitted that he was not supposed to have a firearm because of his felony convictions. He claimed he needed the gun to protect his family.
The Court found this was enough evidence to detain but reminded us of the hight burden the prosecutor has in motions hearings.
The name of the case is State v. Smith, No. 68709-3-I. Court of Appeals of Washington, Division One.Filed: August 26, 2013. Its an unpublished opinion.