“Counsel, I’m going to strike your request for a 3.6 hearing.” The dreaded words enter the ears of DUI defense attorneys across the State of Washington. The DUI defendant looses their right to challenge the admission all evidence found in the car following the arrest for DUI.
The warrantless search that was supposedly “incident to arrest” now provides the prosecutor with the fruit of the crime charged. Worst of all, the DUI defendant will likely fail on appeal to show that the defense attorney was “ineffective” as counsel because there will be no factual basis to succeed on appeal. At least thats what State v. Fenwick tells us.
Division II addresses an issue common the high volume DUI practitioners in district and municipal courts around the State – failure of counsel to raise search and seizure issues. Here Mr. Fenwick had a very arguable issue, which was not raised by trial counsel. The search of the vehicle following the arrest for DUI provided the gun and drugs – known to attorneys as Gant and Afana issues.
DUI defense counsel have a difficult balancing act when it comes to writing motions to suppress evidence. Do they write a lengthy brief on the issue or not? If they brief the issue they preserve the right to litigate the issue, a hearing happens and the issue is preserved for appeal, which is likely because the brief itself is the recipe for the prosecutor to fix their case. The brief does two things: 1) it preserves the issue for appeal and 2) betrays the obligation to the client of zealous representation.
Mr. Fenwick was arrested for DUI and then police officers found a loaded gun, drugs, and needles in his car. A brief summary of limited facts show that the DUI was skinny on impairment facts:
Around 1:00 am on December 12, 2009, Washington State Patrol Trooper Joshua Valek was on patrol when he observed a car drifting between lanes on the roadway. Trooper Valek stopped the car and contacted the driver, who he later identified as Fenwick. Notably, a passenger was also in the car.
Trooper Valek explained to Fenwick the reason for the stop; Fenwick acknowledged that he was all over the roadway and added that he had not slept in five days. While talking to Fenwick, Trooper Valek observed that he appeared nervous; he was rocking back and forth and making jerky movements with his hands. Fenwick also had slurred speech and bloodshot eyes.
Believing Fenwick to be under the influence, Trooper Valek asked Fenwick to perform voluntary sobriety tests. Fenwick agreed to perform the tests and turned off his car, but he did not immediately exit the car. Instead he sat in his car, looking around in a nervous manner. Trooper Valek again asked Fenwick to exit his car. Rather than complying, Fenwick started his car, put it in gear, and it began to move forward slowly. At this point, Trooper Valek pulled out his taser and ordered Fenwick to stop and turn off his car; Fenwick complied. Trooper Valek called for backup and ordered Fenwick to remain in his car.
Interestingly Mr. Fenwick had a motion to suppress statements, which easily could have incorporated a motion to suppress the evidence in the car or the probable cause to arrest issue. Neither happened and Mr. Fenwick has no recourse as the conviction was upheld.
The case holds a good discussion on the definition of Manifest Error. Manifest Error must be constitutional and prejudicial. The only way to determine the actual prejudice is to have a good record in the trial court.
So if you hear those horrible words from the judge, “counsel, I’m going to strike your request for a suppression hearing,” then fight hard to make a record of what will not be decided in that lower court.
Rule of Fenwick – Trial counsel must raise constitutional issues or they are waived unless Manifest Error. To show Manifest Error there must be a good record showing actual prejudice.
State v. Thomas Melvin Fenwick, Court of Appeals, Division II, No. 40542-3-II, October 18, 2011.