Legal paradox (wa)

[JLZesbaugh]

What is the name of your state (only U.S. law)? Washington

So I got stopped for a DUI, while on probation. They showed me the Implied consent, and I asked for a lawyer(not knowing if there was a probation effect). The officer interpreted my request for a lawyer as a "refusal". Problem is later I found out the mandatory effect, required by past rulings, State v. Whitman county dist court, Gonzolez v. DOL. All mandatory effects, seemingly civil and criminal have to be listed. So here I am going in for this "refusal" on a mandatory civil probation effect that was not listed on the implied consent. I didn't refuse, just asked for info on the missing effect.

"I'm on probation what happens?"

"I interpreted that as a refusal"

(This forces the unknown unlisted effect)

Court ruled it's evidence against me, and that I refused.

So great, police report show I did not actually refuse. Asked for a lawyer.
Now it's shown a mandatory effect, and penalty is not listed on the warning was given. Rulings: state the mandatory probation effect of probation should probably be listed in the statute. because its not a Knowing decision if I DON'T KNOW THAT'S GOING TO HAPPEN.

So wham I get convicted on two (dui and refusal) based on the evidence of the refusal. They said asking for a lawyer was an "avoidance tactic". I can clearly show there is an unlisted mandatory effect. It's not an avoidance tactic!

Anywho....

Here is the paradox. The second the refusal is now convicted. It causes the unlisted mandatory probation effect.

Which now makes that evidence suppressible, and the refusal conviction impossible.

The result of the trial itself creates new evidence by triggering the mandatory unlisted effect in another court. Negating all effects of the "interpritation". Because it was not "knowing and intelligent".

Does anyone out there understand what I'm saying.

I want to feel like I'm not crazy.

My lawyer won't listen to me, or tell me why this is wrong, they just ignore it.

 

[justalayman]

well, I don't know about being crazy but your post is confusing and circular in it's argument.

asking for an attorney rather than complying with the request to blow is a refusal to blow.



Now, if you had asked if you have a right to have an attorney, I would argue that in itself is not a refusal but regardless, the cop is not allowed to give legal advice either so he cannot actually answer the question either.

and as to special circumstances for being on probation; it is your duty to know the rules that apply to you. It isn't the officers duty to act as your attorney and explain your rights to you.

 

[JLZesbaugh]

Makes a bit of sense.

That does make some sense. He had previously told me I had the right to an attorney.

I do get that part though, I guess where I see the oddity, is in the rulings.

Gonzales v. Department of Licensing, 112 Wash.2d 890, 897, 774 P.2d 1187 (1989)

"Before administering the Breathalyzer test, a law enforcement officer must inform the driver of his or her rights concerning the taking of this test as well as of the consequences of a refusal."

So what happened at least in my view is a consequence was not told to me.

""as to special circumstances for being on probation; it is your duty to know the rules that apply to you. ""

I mean if you look at the statue, we have contractual contingency considerations for CDL, is it their duty to know as well? They also have a special effect.

State v. Whitman Cy. Dist. Court, 105 Wn.2d 278, 714 P.2d 1183 (1986)

“The "obvious purpose" of the statutory warning "is to provide [the operator] the opportunity of exercising an intelligent judgment ..." The warning here did not provide Welch with the opportunity to exercise the intelligent judgment which the mandatory language of the statute requires.””

“Our holding is that the opportunity to exercise intelligent judgment requires that the operator be advised of the mandatory effect of a refusal to be tested.”

So yah, I see what you are saying, and it seems right. But that would imply no implied consent warning is needed at all, as a driver it's your contractual duty to know.

 

[justalayman]

washington does have some special requirements not required in other states. I need to digest them. You seem to have a point but I need to research before knowing enough to say much.

 

[Zigner]

...as a driver it's your contractual duty to know.

It has NOTHING to do with ANY "contractual" issues.

 

[JLZesbaugh]

Contractual issues

My misinterpretation is that probation violations are done under "civil" burdens of proof.

I guess I looked at probation as having "elements" of a contract. That coupled with the civil burden of proof used in probation hearings. A tit is being traded for a tat, reduced sentence or Y in exchange for X or behavioral & obligation conditions. There is an exchange, and contingency , and remedies built in.

I would wonder if someone could say No to probation and accept a full term, thus refusing the "deal". Not that any sane person would. It's interesting but aside from the point. Excuse that error on my part please.
You see in Washington DUI the probation is mandatory, and no one that I know of has challenged that. However there is some logic that probation is in lue of incarceration, and if they took the full incarceration term probation could not legally be applied.

That aside, if you find anything interesting on my point regarding Washington unique views on implied consent, I'd be curious to know. I'm pretty new to legal research, so prone to make mistakes (see above).

I'm actually looking for the ruling or anything that disproves this, but so far there are none I can find.