New DUI law tossed out by judges across state

By TRACY JOHNSON
SEATTLE POST-INTELLIGENCER REPORTER

Friday, August 5, 2005

Judges around the state are throwing out a new law that was supposed to make Washington tougher on drunken driving and breath-test results more difficult to keep out of court.

Since the law took effect just over a year ago, judges have handed down conflicting rulings on the question of whether lawmakers went too far -- and if so, what it should mean for the people facing drunken-driving charges in their courtrooms.

Three Seattle Municipal Court judges said the law is fine; three others said parts of it are unconstitutional. At least five King County District Court judges tossed out the entire law -- along with the breath-test results of accused drunken drivers.

The state Supreme Court has now agreed to decide whether the law, which the 2004 Legislature passed unanimously, should stand. Justices are expected to hear arguments this fall.

So far, some accused drunken drivers have been allowed to plead guilty to less serious charges when their judges have rejected the new law completely. In other courtrooms, judges upheld the law or struck down just part of it, still allowing the breath-test evidence to be heard in court.

Defense attorneys say judges have kept hundreds, if not thousands, of breath tests out of court because of the flaws.

One potential problem with the new law is that it tells judges to "assume the truth" of the prosecutor's evidence -- often police officers' testimony -- and look at it "in a light most favorable to the prosecution or the department" in deciding whether breath-test results can be used in trial.

"What the Legislature is doing is essentially telling the judge who to believe in the courtroom," said attorney Ken Fornabai, who has challenged the laws in many suburban courts and will do so this month in King County District Court in Seattle. "It's sort of like having a crooked referee."

Callahan said all kinds of things can make a person's breath give a falsely high reading for alcohol, including having diabetes or even following the Atkins diet. In a spontaneous experiment on her own machine, she said, she once blew a 0.08 -- the legal limit for driving -- after eating a banana.

She contends that judges have a better understanding than jurors might about the history and potential problems with the machines and the procedures for using them.

"It's 'guilt by machine,' " she said. "A person has to be able to challenge that machine."

But Pamela Loginsky of the Washington Association of Prosecuting Attorneys, who will defend the law at the Supreme Court, said Washington has more stringent procedures than most states to make sure breath-test results are accurate, including a requirement to have the driver blow into the machine twice.

She said the new law simply makes it so that breath tests are treated the same way as other scientific evidence, such as DNA or fingerprints, in court.

Loginsky said it makes sense to let juries hear how the driver did on a breath test, then decide for themselves whether the results are worth believing, instead of simply keeping the evidence out of court.

Seattle City Attorney Tom Carr said that before the new law, drunken drivers were often getting off easy because of highly technical issues -- such as whether a breath-test machine's thermometer had been certified according to highly detailed state codes -- even when no one was claiming the results were wrong.

"When you're losing valuable evidence of a crime that affects public safety for technical reasons that had nothing to do with the test, you should fix it," Carr said. "And I think (the law) fixed it in a fair and reasonable way. It leveled the playing field."

Last year prosecutors in Washington filed more than 43,000 charges of driving or having control of a vehicle while under the influence of alcohol.

More than 9,000 people were arrested in King County, according to the Washington Traffic Safety Commission.

Another reason some judges -- including judges in Seattle, Kent and Lynnwood Municipal Courts -- are finding the law unconstitutional is that it tackled more than one subject.

The state Constitution says that can't happen -- mainly to make sure everyone knows what's being proposed and ensure that provisions about something else can't be sneaked into the legislation.

The same "single-subject rule" was the downfall of anti-tax measures in recent years, including one that would have lowered car-tab fees to $30 and required voter approval for all tax increases.

Defense attorneys have argued that the 2004 "Act Relating to the admissibility of DUI tests" delves into unrelated things, such as when the Department of Licensing can suspend someone's driver's license and how breath tests are handled in other crimes.

Some judges have ruled that those subjects are related closely enough.

Lawmakers approved the new laws last year "to ensure swift and certain consequences to those who drink and drive."

The Supreme Court will consider the new laws in a case from Fircrest Municipal Court, where a judge upheld them. In that case, Theo Jensen, 19, is appealing his case after being convicted of driving after drinking while being under 21. In two breath tests, he blew a 0.04.

WEIGHING DUI LAW

One part of the breath-test law that some judges have found unconstitutional is in a section about the procedures police officers must use -- and often testify about later in court -- in giving the tests:

"For purposes of this section, 'prima facie evidence' is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. 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 in a light most favorable to the prosecution or department."

P-I reporter Tracy Johnson can be reached at 206-448-8169 or tracyjohnson@seattlepi.com.