Forty Years of DUI Legal Precedent Erased?
November 29th, 2008
I read somewhere recently the phrase: “The law is supposed to serve as an anchor under shifting political seas.” This comment struck me as profound in light of the published opinion of the Court of Appeals, Division II. As lawyers, we rely on established legal precedent to advance the cause of our respective clients. Obviously, we need stable and long-standing principles of law to assess and resolve legal disputes. A judicial system without established legal precedent is not worth having. Many have posit the importance of continuity in the law and the necessity of respect for precedent if we are to remain a society of laws and not of men. I could just imagine how we would run amok if we did not have stability in court-made law. DUI practitioners are now engaged in a brewing controversy over the impact of State v. Donahue, 105 Wn. App. 67, ___ P.2d ____ (2001). Everyone is asking: did Donahue reverse 40 years of legal precedent? Prosecutors in delight are saying, of course it did. One trial court, thus far, agrees with the prosecution. The majority does not know what to make of Donahue. Defense attorneys in the meantime are in shock, wondering if it no longer matters whether the State follows the administrative regulations and protocols governing the proper administration of breath and blood tests for alcohol content. On July 11, 1997, James Donahue collided with a vehicle driven by Li Sheng Chiu. The collision occurred in Washington. Mr. Chiu died in the collision and his passenger was injured. Donahue was also seriously injured and was taken to a hospital in Portland, Oregon for medical treatment. The hospital drew Donahue’s blood for medical purposes. His blood was tested for alcohol using an Ektachem machine. This machine runs tests by spectrophotometry methods. In Washington, the only approved method for testing blood samples for alcohol content is by Gas Chromatography. The result of Donahue’s blood test showed that his alcohol concentration was .241, three times the legal limit. The hospital then released the results of the blood test to Washington authorities. Thereafter, Donahue was charged and convicted of vehicular homicide. At trial, Donahue argued without success that the results of the blood test should have been suppressed because the test of his blood was not performed according to the methods and procedures approved by the Washington State Toxicologist, which were codified in the administrative code. WAC 448-14 et. seq. The Court of Appeals affirmed the trial court and held that the blood test was properly admitted in evidence against Donahue. The Court of Appeals’ decision dropped like a bomb, sending fearful shock waves across the defense community. Until now, no one had heard of a breath or blood test being allowed in evidence when the test was not performed in accordance with the administrative code. In 1960, the Washington Supreme Court addressed for the first time the foundational requirements for admission of evidential breath tests in Washington. State v. Baker, 56 Wn.2d 846, 355 P.2d 806 (1960). The Supreme Court held that in order to gain admission of breath test evidence the State must show the machine was properly checked and in proper working order at the time the breath test was performed. Since then, the courts have said it time and time again that admissibility of breath and blood tests is governed by the administrative requirements of the Washington Administrative Code enacted by the State Toxicologist. For example, in State v. Watson, 51 Wn. App. 947, 950 (1988), the court held that compliance with the Washington Administrative Code was a prerequisite to admissibility. Quoting from State v. Ford, 110 Wn.2d 827, 829 (1988), the Watson court reaffirmed the long standing principle that: To be valid, an analysis of breath shall have been performed according to methods approved by the state toxicologist.’ [citations omitted] Among the regulations adopted by the State Toxicologist is WAC 448-12-015. Thus, by statute, a Breathalyzer test is valid only if the machine is maintained in accordance with this regulation. In State v. Ryan, 43Wn.App.488 (1986), the court observed that in order for the Baker requirement to be satisfied, a maintenance operator must follow the directives of WAC 448-12-015’. Ryan, at 490. Compliance with WAC 448-12-015 is the exclusive method of establishing admissibility of breath test results. (at 950, emphasis by the Court). And in State v. Straka, 116 Wn.2d 859 (1991), the Washington Supreme Court once again held that the burden is on the prosecution to establish the breath test machine was in proper working order by proving both the protocols and administrative code provisions were followed: This follows from this court’s long-standing requirement that when relying on results of machine tests for breath alcohol, the State must establish that the machine was in proper working order, that if chemicals were used in testing they were correct and correctly used, that the operator was qualified and performed the test correctly, and the results are accurate. This foundational requirement was first set out in State v Baker [citation]. See State v. Brayman, 110 Wn.2d 183,191-92, (1988) (reaffirming foundational requirement and describing WAC’s where these requirements have been set forth). If the State satisfies its initial burden, the test results are admissible. (at 870). One case, like Donahue, could change the legal landscape. But the question remains, did it do so? The answer is simple: no it did not. At first brush, Donahue appears to change everything, but a close reading of the opinion reveals that our fear was greater than the import of Donahue. I do not want to mislead you, Donahue is important, but not as significant as we thought it was. Donahue never addressed the admissibility of evidence obtained and tested in Washington pursuant to Washington’s implied consent law. In fact, nowhere in the opinion is there a reference to Washington’s implied consent law. James Donahue provided a blood sample for medical purposes and was not asked to submit to a legal blood draw. A legal blood draw is taken at the direction of a Washington police officer that is acting under the authority of Washington’s implied consent law. See RCW 46.20.308. Thus, Donahue dealt only with the admissibility of a voluntary blood draw, otherwise known as a “medical draw.” Because a voluntary medical blood draw is not taken subject to Washington’s implied consent law, there is no requirement under Washington law that it be analyzed under the methods and procedures established by the State Toxicologist. Washington’s implied consent law makes it only a requirement for legal blood or breath tests to be performed according to RCW 46.61.506. In turn, RCW 46.61.506(3) states in relevant part: Analysis of the person’s blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. Clearly, a legal or forensic test, which is taken under the power of the implied consent law, must be performed according to the methods and procedures adopted by the Washington State Toxicologist. The same is not true of a medical blood draw. This is a distinction duly noted by the Donahue court. In fact, the Court of Appeals criticized James Donahue for failing to recognize the difference between the two, stating: Donahue does not distinguish between what is known as a “medical draw,” which is used for treatment at the hospital, and a “legal draw,” which is normally used in referring to a blood draw done according to the Washington State Toxicologist’s methods. If Donahue’s position were correct, evidence of a medical blood draw would never be admissible, even in a civil case. (Emphasis added). The Court of Appeals reasoned that Donahue’s argument was inconsistent with the foundational requirements for admissibility of a medical blood draw. A voluntary medical blood draw is subject to ER 702, ER 703, and the Supreme Court’s decisions concerning admissibility of scientific evidence. Unlike a legal or forensic blood test, a medical blood draw is admissible if it meets the general Frye standard, that: (1) the theory or principle must have achieved general acceptance in the relevant scientific community; (2) the witness must qualify as an expert; and (3) the testimony must be helpful to the trier of fact. State v. Baity, 140 Wn.2d. 1, 10, 991 P.2d 1151 (2000). Therefore, the foundational requirements for a medical blood draw are less stringent than the foundational requirements for a legal blood test. In addition, it is worth noting that the prosecution was able to secure the results of the voluntary blood test because in Oregon the patient-physician privilege does not apply to criminal cases. This means that privileged communication between a physician and his patient, who is a criminal defendant, is not protected under Oregon law. As a result, there was no prohibition against the dissemination of Donahue’s blood test results to Washington authorities. The blood sample was obtained, tested and released in Oregon. A very unique fact that is likely to distinguish Donahue from your typical Washington case. In summary, Donahue did not hold that a legal breath or blood test, one that is subject to the administrative code and the implied consent law, might be offered in evidence regardless of whether or not the prosecution met the administrative requirements adopted by the State Toxicologist. Rather, Donahue stands for the proposition that a voluntary medical draw is other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug. Under Donahue, the phrase “other competent evidence”, refers to any relevant evidence other than a legal blood draw or legal breath test. See RCW 46.61.506. Even Donahue acknowledged that a legal blood draw must be performed according to the methods and procedures adopted by the State Toxicologist. Therefore, it is wrong to suggest or maintain that Donahue would permit the admissibility of a legal blood or breath test--which did not comport with the state toxicologist’s methods and procedures--to prove any prong of the DUI statute. Similarly, State v. Curran, 116 Wn.2d 174, 804 P.2d 558 (1991), does not stand for the proposition that an invalid legal blood test may be offered in evidence as other competent evidence bearing upon the question of whether the person was under the influence of intoxicating liquor or an drug. To the contrary, a close reading of the opinion reveals that Curran held that a valid legal blood draw may be used in evidence to prove intoxication when the DUI statute, due to a drafting error, did not include the per se prong for legal blood draws. In other words, a legal blood draw, meaning a test that followed the state toxicologist’s methods and procedures, may be used in evidence to prove intoxication under the affected-by prong. The Curran court never held that an INVALID legal blood test is admissible to prove intoxication under the affected-by prong. Furthermore, the Curran court suppressed the results of the medical blood draw because they were obtained in violation of Washington’s implied consent law. If the Legislature had wanted a legal blood or breath test to come in evidence--irrespective of whether or not the tests were performed according to the methods and procedures adopted by the State Toxicologist--the Legislature would have never made it requirement for a legal blood or breath test to be performed according to the method and procedures approved by the State Toxicologist. In other words, if Donahue applies in all cases, then the administrative requirements as codified in the code are meaningless and superfluous. There is no purpose served by the administrative code because any test, whether a legal or medical breath tests, would be admissible at trial although the approved methods for testing were not followed. Clearly, this was not the result intended by the Donahue court. Donahue controls only the admissibility of voluntary medical blood test and not legal blood draws. Therefore, we need to proceed with caution and not read too broadly the Court of Appeals’ holding in State v. Donahue, supra. Otherwise, we run the risk of undoing 40 years of history and jurisprudence in one fell swoop. Since State v. Baker, 56 Wn.2d 852 (1960), Washington courts have suppressed legal blood or breath tests for both prongs of the DUI statute when the administration of said tests failed to comply with the methods and procedures adopted by the State Toxicologist. This has not changed. Stare Decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law. Without the stabilizing effect of this doctrine, law could become subject to incautious action or the whims of current holders of judicial office. This is the danger we run today.  A plain reading of the language used in RCW 46.61.506 shows that the term other competent evidence is referring to any competent evidence other than the legal or forensic breath test done according to the state toxicologist’s methods and procedures.