New DUI law tossed out by judges across state

Washington's 2004 statute on DUI evidence has met with varied reactions in the lower courts, generally negative. Now the Washington Supreme Court has agreed to hear a challenge. New DUI law tossed out by judges across state, Seattle PI, Aug. 5, 2005.

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."
* * *
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.

The law is Laws of 2004, ch. 68. The part about making inferences in favor of the prosecution is in section 4(4)(b), codified at RCW 46.61.606:

(b) 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 it in a light most favorable to the prosecution or department.

The case, City of Fircrest v. Jensen, has not yet been set for argument.