DUI tests frequently tossed out; 2004 law backfired

Hundreds of people accused of drunken driving have had the results of their breath-alcohol tests tossed out of court over the past year, foiling state legislators' efforts to make the tests more lawyer-proof.

In one high-profile case, Seattle Sonics forward Rashard Lewis, whose breath-alcohol level measured 0.13 (the legal limit is 0.08) after he was stopped Oct. 1 on Mercer Island, successfully argued Monday that a 2004 law governing breath tests is unconstitutional. His argument, like that of hundreds of other defendants, is that legislators overstepped their authority in writing the law, leaving judges without as much discretion.

Lewis pleaded not guilty to driving under the influence. Despite the setback, prosecutors say they still have a case against him.

The state Supreme Court heard arguments on the law's constitutionality in October, and its decision is expected to take several months. In the meantime, nearly every judge in King County who has considered the issue, in addition to judges in about half of the state's other counties, have ruled that the law is unconstitutional, according to Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys. The remainder have allowed the test results into evidence.

The problem lies in the wording of the law, SHB 3055, which took effect in June 2004 and says breath-alcohol test results "shall be admissible at trial" as long as certain basic steps are followed. For example, the person who administers the test must be authorized to do so and the chemical solution in the machine must show a certain temperature reading, an indicator that it's working. The law also says the court "is to assume the truth of the prosecution's ... evidence" in deciding whether to admit the results of the test.

Previously, the judge would hold a hearing and weigh the arguments on each side before deciding whether to admit the breath-test results.

Defense lawyers immediately attacked the new law. By requiring judges to admit breath-test results into evidence, the Legislature overreached, they argued. That's a violation of the separation of powers, said attorney Steve Hayne, who is representing Lewis. "The Legislature cannot overrule judicial discretion in admitting evidence," Hayne said.

The 2004 law came in response to several years of successful challenges to the breath-testing process. None of the challenges cast doubt on the general reliability of the test itself, which measures the concentration of alcohol in a person's breath. Law enforcement uses these readings, along with field sobriety tests, to gauge a driver's level of impairment. Breath alcohol is related to blood alcohol, but breath-alcohol tests do not require the drawing of blood.

Instead, defense lawyers had tried to find flaws in the process, however minor, to convince a judge the breath-alcohol test results should not be admitted into evidence.

They were successful in thousands of cases, in which judges refused to allow evidence of breath-test results.

It hasn't worked as planned. Many judges agreed with defense lawyers' argument that the law is unconstitutional. Some rejected breath-test results altogether, while others required the prosecution to prove their reliability at a pretrial hearing — essentially reverting to the old rules.

At the state Supreme Court, defense lawyers also argued that the new law tips the scales in favor of the prosecution.

Washington, they pointed out, is what's known as a "per se" state. That means if your breath-alcohol content measures 0.08 or greater, you're guilty of DUI. So if the judge is required to admit breath-test results into evidence, it's up to the defendant to prove his innocence. That is at odds with federal law, which says you're innocent until proved guilty.

Prosecutors, however, argue that's not what SHB 3055 says at all. Defendants are free to challenge the reliability of the breath-test results in front of a jury. For example, a defense lawyer might try in cross-examination to raise questions about the machine or the police officer's actions.

"It's up to the jury to decide what weight to give this evidence," said Maggie Nave, a senior deputy King County prosecutor who oversees DUI prosecutions.

In addition, prosecutors point out that other types of scientific tests, such as DNA, are admitted into evidence without prosecutors having to jump through the sort of hoops DUI defense lawyers seem to be advocating. "There's no reason breath tests should be treated any differently than the other scientific evidence we use," said Loginsky, with the prosecuting attorneys group.

The lack of breath-test results doesn't necessarily ruin the prosecution's case. Prosecutors have relied instead on the testimony of arresting officers, who can describe how the defendant did on field sobriety tests.

Maureen O'Hagan: 206-464-2562