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What Does a DUI Officer Need to Stop and Sniff?

Posted by Kevin Trombold DUI Defense Attorney | Nov 18, 2013 | 0 Comments

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Washington State DUI Officers
One question we hear repeatedly is what does an officer need to observe to stop a car and sniff for alcohol.  Because once a sniff is done people feel that they are going to the station regardless.

Division Three of the Court of Appeals reversed a Superior Court decision throwing out a DUI conviction.  The Case was thrown out by Superior Court because the Washington State Patrol Trooper, in this case Richard Thompson, stopped the driver illegally under what's called a pretext stop.  A pretext stop is when a police officer uses a minor traffic infraction to stop and interrogate citizens for the purpose of arresting them for a crime.

Here's a shortened version of the facts from the Court's opinion:

Around midnight on August 18, 2010, Trooper Richard Thompson of the Washington State Patrol was traveling westbound on State Route 500 in Clark County. Ahead of Trooper Thompson was a car driven by Charles McLean; no other vehicles were present.Trooper Thompson had training and experience in identifying impaired drivers.  Trooper Thompson convinced the Court that this training and experience, he knew that alcohol causes delayed reactions that can result in a driver's drifting through the lane of travel and alcohol impairs a person's ability to simultaneously perform multiple tasks such as maintaining the speed limit, staying within a lane, and using turn signals. Trooper Thompson impressed the Court with his history of DUI stops: that in 2010 he stopped about 400 drivers for lane travel violations and he made over 200 arrests for driving under the influence.

Trooper Thompson's testified that because the drivers car was weaving from side to side within the left lane. The car was driving the speed limit yet McLean's weaving made Trooper Thompson suspect that McLean might have been impaired. Trooper Thompson followed McLean's car and saw it cross the fog line three times. Trooper Thompson then activated his lights and initiated a traffic stop.

After the stop was made Trooper Thompson simply gathered more information before arresting, which included the field sobriety tests.  He approached and advised that he stopped McLean for driving in the left lane without passing, weaving through the lane, and discarding a lit cigarette after Trooper Thompson activated his emergency lights. Trooper Thompson  smelled an odor of intoxicants coming from the vehicle.

At the station the driver refused to provide a breath sample to measure his breath alcohol content. McLean argued that Trooper Thompson did not have a reasonable suspicion that McLean was driving under the influence. The district court held a hearing and denied McLean's motion.

During a jury trial, the State elicited testimony about Trooper Thompson's training and experience in identifying impaired drivers. The State asked Trooper Thompson why he stops some drivers on suspicion of driving under the influence without ultimately arresting them. Trooper Thompson replied that he arrests drivers for driving under the influence only if he believes they are impaired by alcohol or drugs. McLean's counsel did not object to this testimony.

McLean appealed to the superior court, arguing that (1) the district court erred by denying his motion to suppress because the traffic stop was pre textual.  The superior court agreed and remanded for dismissal with prejudice. The State then sought discretionary review in this court, which our commissioner granted and then reinstated the conviction.

Here's how the Court of Appeals decided this case:

A traffic stop is pretextual if it is conducted not to enforce a violation of the traffic code but to investigate some other crime, unrelated to driving, for which reasonable suspicion and a warrant are lacking. Ladson, 138 Wn.2d at 349.[5]  McLean claims (1) Trooper Thompson had a reasonable suspicion only of McLean's driving in the left lane without passing, and (2) Trooper Thompson lacked a reasonable suspicion of driving under the influence. But as we have explained above, Trooper Thompson had a reasonable suspicion that McLean was driving under the influence, and he conducted this traffic stop to investigate that crime. Therefore this traffic stop was not pretextual. McLean's argument fails.

Unpublished Opinion - STATE OF WASHINGTON, Appellant,v.CHARLES WAYNE McLEAN, Respondent.No. 43522-5-II.Court of Appeals of Washington, Division Two.Filed: October 22, 2013.

About the Author

Kevin Trombold DUI Defense Attorney

Highly rated by former clients, who praise his warm, knowledgeable courtside manner and his fierce determination to reduce or eliminate charges. An accomplished speaker, author, and leader in DUI defense statewide Kevin is well respected by judges, prosecutors, and other attorneys across the State of Washington for his expertise, integrity, and knowledge in the complicated forensic science area of impaired driving allegations.

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