What's the very minimum treatment requirement on my DUI case?

THE DUISEATTLE.COM BLOG : What's the very minimum treatment requirement on my DUI case? THE DUISEATTLE.COM BLOG Your Community Resource for DUI and Criminal Traffic Defense in Washington State. Writings of Seattle DUI Lawyer and Seattle Criminal Lawyer W. James Kotlowski. A Discussion of Washington State DUI, Physical Control, Reckless Driving, Negligent Driving, Deferred Prosecution, Department of Licensing and Criminal Traffic Law Issues. 20 years of experience. Call or Text - 206.335.2422 for a Free Consultation. HomeArchivesProfileSubscribe Lawyer Walter Kotlowski | Top Attorney DUI What's the very minimum treatment requirement on my DUI case?Where can I do my DUI Jail time?What's the maximum jail sentence on a Washington State DUI?Is a Deferred Prosecution recorded as a conviction?What are common DUI reductions in Washington State?How long will my DUI case last?Will I be required to appear at the 5-year hearing on a deferred prosecution? Will a Fourth DUI be a felony in Washington State?How many days do I have to request a DOL Hearing?Will a DUI probation violation suspend my license? Search OFFICEContact Information
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March 07, 2015 What's the very minimum treatment requirement on my DUI case?The very minimum alcohol/drug treatment required in every DUI case - whether reduced/amended or not - is the 8-hour alcohol drug information school (ADIS) and the 1-2 hour DUI Victim's panel. An alcohol/drug evaluation is also required with every DUI case. 

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The History of the Consent Exception to the Fourth Amendment Warrant Requirement

Home > Fourth Amendment > The History of the Consent Exception to the Fourth Amendment Warrant RequirementPosted on January 23, 2015 by Chuck Ramsay

The Constitution didn't come with built-in exceptions; courts have created them. It wasn't until 1921, in Amos v. United States, that the United States Supreme Court first recognized the possibility of a consent exception to the Fourth Amendment Warrant Requirement. It took another 25 years, in Zap v. United States, for the Court to turn the possibility into a reality. Before 1946, you couldn't waive your right to a warrant even if you wanted to; every search had to be authorized by a warrant issued by a neutral magistrate based on probable cause. The writers of our Constitution knew all-too-well the danger posed to personal liberty by unchecked, unilateral action by one branch of government. Hence, the Fourth Amendment Warrant Requirement.

Given our nation’s belief in individual freedom, it makes sense that a warrantless search is reasonable when it is conducted with the permission of the person searched. In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. When police officers ask an individual for consent to search, it reinforces the rule of law for the individual to actually consent (or refuse to consent), and for the police to act in accordance, by executing the consensual search (or getting a warrant). That's why, when the Court created the consent search exception in the 1946 Zap case, the Court relied on actual consent; an individual had to give an intentional, knowing, and voluntary waiver of his or her Fourth Amendment rights before a search would be considered consensual. Only the truly voluntary relinquishment of the right to a warrant could support the constitutionality of a warrantless search.

Actual consent – “Yes, I give you permission to search” or “No, come back with a warrant” – remained the benchmark for about 50 years. Then, in 1973, the Court issued its decision in Schneckloth v. Bustamonte. In that case, the Court developed a new approach to the consent search doctrine by shifting the criteria for consent from actual, express consent given freely and intentionally, to "consent" as determined by the court's application of a “voluntariness” test to "the totality of the circumstances."

The significance of this shift cannot be overstated; after Bustamonte, actual, express consent (or refusal to consent) was no longer determinative. Even when there was no actual, express consent, the courts began to find "consent" by asking not whether an individual consented, but rather whether a reasonable officer would have construed the individual's actions as consent. As of 1976, courts could find "consent" as a matter of law even when there was no actual, express, voluntary consent as a matter of fact.

In Bustamonte, the Court separated consent search analysis from the original characteristics that made consent searches reasonable. Instead of focusing on the individual’s actual consent to forego a constitutional protection as the basis for the doctrine, the Court emphasized the balance between law enforcement officials’ interest in conducting searches and the private citizen’s fear of coercion. This new focus on law enforcement interests moved the doctrine of the consent search exception away from an objective standard, which focused on a particular person’s actual waiver of his or her constitutional right, to a subjective standard, which assessed whether a law enforcement officer’s actions coerced the suspect into permitting a warrantless search. "Consent" was determined by the one asking for it, not the one giving it.

Law enforcement has no complaints about this shift, but for individuals, the consent search situation has only gone downhill since Bustamonte. Subsequent court decisions have further distanced the consent search exception from its original justification by shifting the focus of consent analysis entirely away from the objective, actual manifestation of an individual’s consent to the court's interpretation of the facts from the officer’s perspective in the absence of express consent. In a recent case here in Minnesota, the Court of Appeals found free and voluntary consent from a 21-year veteran of our U.S. Navy, even when the veteran told the officer who arrested him “I guess I will take your test, but I am not consenting.” This approach goes far beyond cases that have come before, and appears to be ushering in a new consent calculation: submission to a search automatically equals consent to that search.

This plays out in a dangerous way in the context of warrantless DWI searches: the Minnesota Implied Consent Advisory says "Minnesota law requires you to submit to a chemical test" and "refusal to submit is a crime." The Advisory doesn't mention the fact that if a driver refuses, no test will be performed against his will. And law enforcement is not required to clarify that a driver can (and must) submit to a warrantless search to obey the law without giving free and voluntary consent to that warrantless search.

What if the Implied Consent Advisory said "Minnesota law requires you to submit to a haircut" and "refusing to submit to a haircut is a crime"? You'd submit to the haircut to avoid the crime, even if you didn't want a haircut, right? You might even say, "I’ll submit to this haircut because it's the only way I can avoid committing a crime, but I am not consenting to this haircut.” And it logically follows that you'd refuse to submit to a haircut if you could do so without committing a crime. Well, according to Minnesota law, in that situation you freely and voluntarily consented to the haircut.

Keep checking back - up next in this six part series we'll explore the continuing evolution of the "consent search" doctrine.

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Exceptions to IID Installation Requirement

If you are convicted of any DUI-related offense in California a judge can order you to install an Interlock Ignition Device (IID) onto your vehicle. IID’s are essentially mini-breathalyzer instruments installed onto your vehicle that prevent your vehicle from operating unless they are given an alcohol-free¬ breath sample.

As of July 2010, every individual convicted of a DUI offense in Los Angeles County is required to install an IID device to their vehicle for a minimum of five months to a maximum of three years.

However, there are certain exceptions to the blanket IID requirement for a DUI conviction in Los Angeles County.

The California State Legislature considers the following valid grounds for granting an exception to the IID requirement:
Defendant is an out of state resident and installing an IID would cause undue hardship on the defendant or his or her family;
At the time of sentencing, the defendant lives 50 miles or more from the nearest interlock service facility and installing an IID would create an undue hardship on defendant or his or her family;
Defendant is sole proprietor of a business that requires two or more vehicles be registered in defendant’s name, in which case an IID need only be installed on one of the vehicles;
Defendant provides proof that the vehicle registered in defendant’s name is inoperable and defendant is unable to transfer title of the vehicle;
Defendant is required to operate an employer-owned vehicle in the course and scope of his or her employment and thus may operate the vehicle without the installation of an IID. (For example: A UPS delivery truck driver would not be required to install an IID device on the UPS owned delivery truck); and/or
The Court determines that the hardship imposed by the installation of the device will far outweigh the likelihood that the defendant will drink and drive again while on court-ordered probation.

While these exceptions do exist, judges are extremely hesitant in relieving those convicted of DUI related offense from the IID requirement. Thus, it is important to consult with an experienced DUI attorney to help you determine whether you qualify under one of the specified exceptions.

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Exceptions to IID Installation Requirement

If you are convicted of any DUI-related offense in California a judge can order you to install an Interlock Ignition Device (IID) onto your vehicle. IID’s are essentially mini-breathalyzer instruments installed onto your vehicle that prevent your vehicle from operating unless they are given an alcohol-free¬ breath sample.

As of July 2010, every individual convicted of a DUI offense in Los Angeles County is required to install an IID device to their vehicle for a minimum of five months to a maximum of three years.

However, there are certain exceptions to the blanket IID requirement for a DUI conviction in Los Angeles County.

The California State Legislature considers the following valid grounds for granting an exception to the IID requirement:
Defendant is an out of state resident and installing an IID would cause undue hardship on the defendant or his or her family;
At the time of sentencing, the defendant lives 50 miles or more from the nearest interlock service facility and installing an IID would create an undue hardship on defendant or his or her family;
Defendant is sole proprietor of a business that requires two or more vehicles be registered in defendant’s name, in which case an IID need only be installed on one of the vehicles;
Defendant provides proof that the vehicle registered in defendant’s name is inoperable and defendant is unable to transfer title of the vehicle;
Defendant is required to operate an employer-owned vehicle in the course and scope of his or her employment and thus may operate the vehicle without the installation of an IID. (For example: A UPS delivery truck driver would not be required to install an IID device on the UPS owned delivery truck); and/or
The Court determines that the hardship imposed by the installation of the device will far outweigh the likelihood that the defendant will drink and drive again while on court-ordered probation.

While these exceptions do exist, judges are extremely hesitant in relieving those convicted of DUI related offense from the IID requirement. Thus, it is important to consult with an experienced DUI attorney to help you determine whether you qualify under one of the specified exceptions.

View the original article here

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