Washington State DUI Law Awaiting High Court Ruling
November 29th, 2008
A constitutional battle now in the hands of the Washington Supreme Court erupted across the state in the courts of limited jurisdiction over the use of breath-test results in DUI trials. In 2004, the Legislature directed the courts to assume the truth of the government’s case when considering the admissibility of breath-test evidence. Until the new 2004 law was enacted, DUI defendants were allowed to challenge on equal footing the admissibility of breath-test evidence for lack of foundation. Whenever the foundational requirements for admissibility were not met, the breath test was suppressed and the government was precluded from using it at trial against a DUI defendant. The Legislature, however, decided to radically alter the DUI landscape by attempting to eliminate foundational challenges to the use of forensic breath tests. The Legislature abandoned the principles of foundation and admissibility and told the courts to simply assume the truth of the prosecution’s case. For many DUI defendants, the volcano of perceived injustice was lit. Here is a hypothetical to illustrate the point: Assume for the moment that Sally is sporting her new Mini Cooper down I-90, setting her cruise control right at the speed limit. After an hour of fun in the sun, she is heading home from Snoqualmie Pass, content as a butterfly in a field of fragrant orchids. Sally looks in her rearview mirror and sees a high-flying patrol car with blazing lights and siren on her tail. She pulls over and a young-looking trooper claims that she was traveling at 82 mph in a 70-mph zone. Sally argues back, claiming that something is wrong with the trooper’s radar because she had her cruise control set at the speed limit. With a speeding ticket in hand, Sally sees the trooper swagger back to his patrol car through her side view mirror, whispering under her breath that she will see the trooper in court. A few months later in traffic court, Sally presents a convincing case and waits for vindication from the court on her wrongful speeding ticket. The judge, ready to announce her verdict, solemnly reminds everyone in the courtroom that her hands are tied. To the astonishment of those present, she reveals that the Legislature passed a new law, which requires her to assume the truth of the government’s case. Although the judge agreed with Sally that the trooper’s radar had not been properly calibrated, she rules against Sally and imposes the hefty statutory fine. Even the staunchest prosecutor would see the injustice in Sally’s case. However, in DUI prosecutions, the Legislature announced that it apparently is okay to predispose the admissibility of the breath test in favor of the government regardless of the merits. There is no difference between the hypothetical above and the reality today in DUI cases. Irrebuttable presumptions in favor of one litigant over the other are offensive in American jurisprudence. Furthermore, it is inappropriate, just the same, for one branch of government to encroach on the province of another. The backdrop to this constitutional battle dates back to late 1999. My partners and I had just attended the Washington State Patrol’s training class for breath-test technicians, otherwise known as “BAC techs.” The BAC techs are well trained, highly qualified troopers who maintain, repair and calibrate the breath-test machines used across the state. We learned a great deal about Washington’s breath-test program in the three-week course, including some of the inherent flaws with the administration of breath testing. At the same time, a former BAC tech was retiring from the Washington State Patrol and we hired him as an expert consultant in breath testing. In short order, we developed a comprehensive challenge to the admissibility of forensic breath tests, taking our legal challenge on tour around the courts of the state. We successfully alleged that the breath tests were not performed according to the methods approved by the state toxicologist, which the courts consistently held were the exclusive means of establishing admissibility. Hundreds of forensic breath tests were suppressed by the end of 2000.The state toxicologist could not sit idle in view of the mass suppression of breath tests around the state. He felt he had to do something about it and, while he had several options to pursue, he decided to fix the problem by modifying his own rules governing the administration of the breath-test program. Although the state toxicologist meant well, his new rules did not do the job. Instead, he created a new set of requirements that were never met and could not be met by those who administered the breath tests. Again, this led to courts around the state tossing out breath tests for the government’s failure to comply with the rules for admissibility. This is how it went for the next four years until June 10, 2004, when the Legislature’s new bill on breath-test evidence (known as SHB 3055) went into effect. Therein the Legislature wrote: “In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution’s or department’s evidence and all reasonable inferences from it in a light most favorable to the prosecution or department.” Clearly, this bill was the result of four years of frustration from successful legal challenges by the defense. The Legislature’s approach to the problem was to exercise the DUI nuclear option to decimate all pretrial legal defenses to the use of forensic breath tests. The resulting law, however, faced immediate constitutional challenge. The Legislature had directed the courts to open the gate to breath-test results without consideration of the credibility, reliability or admissibility of evidence presented by the prosecution. The law dictates the answer to a question of admissibility rather than leaving it in the hands of the court, where state constitutional provisions concerning the role of the judiciary place it. It compromises the independence of the judiciary, questions the integrity of the judicial process and invades a unique function of the courts, namely, to act as gatekeeper for the admission of evidence. The question is now before the Washington Supreme Court and there is nothing more to do but to wait for the court’s opinion. Every Thursday morning defense attorneys and prosecutors turn to the advance sheets to see if the court has rendered an opinion on the constitutionality of SHB 3055. The citizens of this state remain largely unaware of this ongoing battle. Little do they know that their attempts to maintain safety on the roadways have resulted in efforts by their elected legislators that circumvent the rights guaranteed to us all in the Constitution. Until the Supreme Court issues its ruling, the constitutional battle will continue on a case-by-case basis. Author’s Postcript Note: On October 5, 2006, the Washington Supreme Court issued its decision in the case of the City of Fircrest v. Jensen, 158 Wn.2d 384, 143 P.3d 776 (2006), holding that SHB 3055 was constitutional. A close reading of the Supreme Court’s decision reveals that the Court skirted around the crux of the issue. The Court failed to directly address the offending language which requires the courts and administrative tribunals to assume the truth of the government’s case.