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."
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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.

Admissibility of out-of-state medical marijuana card

[CASE] At her trial for possession and manufacture of marijuana, the defendant was not allowed to introduce evidence of her California medical marijuana card. Division 2 affirmed.

First the court noted that the defendant had not included the California authorization in the appellate record and thus upheld the trial court's determination.

The appellate court nonetheless addressed whether a California doctor certification could meet the requirements of the Washington medical marijuana statute (RCW 69.51A.010). Answer? No -- so a Washington defendant could not be a "qualifying patient" under Washington law even if the California card had been admitted.

State v. Tracy, 115 P.3d 381 (Wash. App. July 12, 2005), Find Result - 2005 WL 1620315.

Is absence of criminal record admissible character evidence?

[CASE] A passenger's dispute with a bus driver led to police involvement, during which the passenger cursed and struck an officer. She was convicted of third-degree assault, obstructing a police officer, and resisting arrest. On appeal, she argued that the trial judge erred in excluding evidence that she had no criminal history. Division 2 affirmed. State v. Mercer-Drummer, --- P.3d ---, 2005 WL 1743891 (Wash. App. July 26, 2005) (published in part), Find Result - 2005 WL 1743891.

Rather than offering testimony from another witness that she was a "law abiding citizen," Mercer-Drummer attempted to testify herself to the absence of an arrest record. ER 405(a) requires the proof be by evidence of reputation. The trial court correctly excluded Mercer-Drummer's testimony based on this clear requirement.

In the unpublished part of the decision, the court addressed an argument that the officer who testified impermissibly expressed an opinion as to Mercer-Drummer's guilt. In describing the incident, the officer testified "That's when I was assaulted" and, later, "we're just trying to get her in cuffs, in custody, basically - for one, I was just assaulted." The court concluded that the officer's use of the word "assault" was merely descriptive and did not constitute an opinion as to the defendant's guilt with respect to the charge of "assault."

Judge Bridgewater dissented:

I respectfully dissent. The majority follows the opinion in State v. O'Neill, 58 Wash.App. 367, 793 P.2d 977 (1990), in upholding the trial court's decision to exclude the testimony by the defendant as to her good character. I would follow the well-reasoned dissent in O'Neill because I agree that "the character of being law abiding is pertinent to rebut any criminal charge." * * * I agree that a "criminal defendant has a constitutional right to testify in his own defense as to his character for law abidingness as incident to his Sixth Amendment rights under the United States Constitution and article 1, section 22 of our constitution." * * * I would reverse and remand for a new trial.

Ressam judge decries U.S. tactics

[NEWS] Last week, Judge John Coughenour sentenced Ahmed Ressam, the man convicted of attempting to bomb LAX, to 22 years in prison. Judge Coughenour commented that the trial showed the the U.S. legal system can try terrorist -- contrary to those who argue for secret tribunals, prolonged detention, and so on. The Seattle Times: Ressam judge decries U.S. tactics

Judge Coughenour said:

I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

I would suggest that the message to the world from today's sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused
fundamental constitutional protections.

Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens.

Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.

The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism. Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.

It is my sworn duty, and as long as there is breath in my body I'll perform it, to support and defend the Constitution of the United States.

Transcript (on Seattle Times website). For a profile of Judge Coughenour, see Seattle Times: Maverick who speaks his mind.