Washington DUI Center

Kevin Trombold 206.382.9200

Adam Liptak, of the New York Times, reports today on the conservative shift of the U.S. Supreme Court in the last five years since the 55 year old Roberts court began its reign.  The article, a first in a series on the Supreme Court, reports that while the Roberts Court might not be the most “activist” court in history, the decisions made during the five years since he took the seat as Chief Justice, are very conservative in ideology.

In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.

The Most Conservative Court In History?

But what about the Rehnquist Court you say?  Nope.  Liptak notes a unanimous opinion of political scientists that shows a conservative move during the first five-year mark of this new court.  But don’t take my word for it.  Read this interesting article yourself and enjoy the always-impressive graphical displays that New York Times offers.

Kevin Trombold 206.382.9200

On July 1, 2010, in State v. Afana, the Washington Supreme Court again followed the authority of the U.S. Supreme Court’s decision in Arizona v. Gant by finding that police officers may not search a car just because they are arresting an occupant of the the car.  The decision is the third in a series that mark a new era in what officers may or may not do to those stopped or arrested for Driving Under the Influence.

First of all, in April of 2009, the U.S. Supreme Court stunned the criminal defense community by authoring Arizona v. Gant, which ended a long era of intellectual dishonesty.  For many years the absurd reasoning of the courts was that officers searched peoples cars for their own safety after securing the arrested person in the squad car in handcuffs.  The cynical defense bar breathed new life and optimism as the U.S. Supremes held:

Arizona v. Gant:  Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

Secondly,  to the Washington State prosecutors, who still lived in denial that Gant was their new reality, the Washington Supreme Court produced a series of cases, all following the authority of the U.S. Supremes in Gant:  Patton, Buelna Valdez, and now Afana.

Patton laid the initial groundwork:

the search of a vehicle incident to the arrest of a recent occupant is unlawful absent a reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and that these concerns exist at the time of the search.

Buelna Vista then followed:

when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.

Supreme Court Restricts Officers

Afana, in short, stands for the proposition that the police may not search a car because they arrested someone unless they believe that the person possess a danger to the officer and danger of destruction of evidence of the crime of the arrest.  The important facts of Afana were that the driver and passenger were not detained by the officer at the time he discovered a warrant existed for the passenger (not Afana).  After arresting the passenger and placing her in the squad car, the officer discovered a bag with methamphetamine and paraphrenalia in the car when searching incident to arrest.

Afana provides a hidden gem though.  It also stands for the idea that the Washington Constitution, which provides more protection of the citizens than the U.S. Constitution because of the privacy clause, does not allow a “good faith” exception to the warrant requirement.  So in Washington State, an officers mistaken belief about the state of the law doesn’t allow them to invade the privacy of Washingtonians.

This may be too much legal talk for the non-lawyer, but it marks a new era for those involved in the justice system and affects everyone stopped for DUI on the road.

Kevin Trombold 206.382.9200

The National Academy of Sciences (NAS) tell us in a recent report titled Strengthening Forensic Science in the United States:  A Path Forward that all scientific evidence is subject to a variety of sources of error.  A key task for the Washington State DUI Toxicology Lab is to identify as many sources of error as possible and to estimate the magnitude of remaining errors so that the conclusions drawn from the test are valid.  Known as uncertainty of measurement or confidence intervals, the DUI toxicologist must be willing to report the intrinsic strengths and limitations of their measurement process, says the NAS.  Inherent limitations of the measurement technique, deficiencies in the reference materials used, equipment errors, environmental conditions outside the range of the validation studies, sample mix-ups and contamination, and transcription errors all must be accounted for, detailed, and communicated with the test result itself.  According to the NAS, the breath ticket in your hands is worthless and tells us absolutely nothing without a reporting of the uncertainty associated with the test.

The NAS made it clear:

Consider, for example, a case in which an instrument (e.g., a breathalyzer such as Intoxilyzer) is used to measure the blood-alcohol level of an individual three times, and the three measurements are 0.08 percent, 0.09 percent, and 0.10 percent. The variability in the three measurements may arise from the internal components of the instrument, the different times and ways in which the measurements were taken, or a variety of other factors. These measured results need to be reported, along with a confidence interval that has a high probability of containing the true blood-alcohol level (e.g., the mean plus or minus two standard deviations). For this illustration, the average is .09 percent and the standard deviation is 0.01 percent; therefore, a two-standard-deviation confidence interval (0.07 percent, 0.11 percent) has a high probability of containing the person’s true blood-alcohol level.  (Statistical models dictate the methods for generating such intervals in other circumstances so that they have a high probability of containing the true result).

Unbiased Science?

But, it appears in Washington State at the DUI Toxicology Lab, the objective of good forensic science is subordinate to the aim of prosecution and conviction of those arrested for DUI.  The DUI Lab’s policy of not reporting the error associated with the breath test serves their prosecution orientation.

The nonscientist reader should be able to comprehend the report, says the NAS.

As a general matter, laboratory reports generated, as the result of a scientific analysis should be complete and thorough. They should describe, at a minimum, methods and materials, procedures, results, and conclusions, and they should identify, as appropriate, the sources of uncertainty in the procedures and conclusions along with estimates of their scale (to indicate the level of confidence in the results). Although it is not appropriate and practical to provide as much detail as might be expected in a research paper, sufficient content should be provided to allow the nonscientist reader to understand what has been done and permit informed, unbiased scrutiny of the conclusion.

But they don’t.  In fact, Dr. Couper, the Chief Toxicologist of the Washington State Toxicology Lab, when asked why she doesn’t report breath tests results as the NAS indicates, says, “Because I don’t have to.”  To understand her response is to understand the history of the forensic science community’s prosecution orientation.  But that’s for another day.  For now, understand that the NAS has spoken and their words are the same as the science community.  Uncertainty must be reported with a breath test.  Without uncertainty, a breath ticket means absolutely nothing.

Kevin Trombold 206.382.9200

For years DUI defense attorneys have fought the Department of Licensing’s rejection of the legislature’s clear intent to support people who pull off the road when they aren’t safe to be driving.  Considering that it is legal to have drinks and then drive; the legislature, years ago, found the wisdom to say that “no person shall be convicted of a DUI if they pull their car off the roadway prior to being pursued by law enforcement”. Even the prosecutors’ offices agree this is good public policy.  But still, for years, the Department of Licensing has said “no way.”  They apparently prefer not to encourage people to remove themselves from the roadway, if intoxicated.  Under the Department’s logic, if a person finds himself behind the wheel, with a growing sense of intoxication, they should still try to make it home so they don’t get arrested.  Last week Superior Judge Catherine Schaffer ruled with the legislature’s smarter public policy that that RCW 46.61.504 (2), the “safely off the roadway” defense does apply to Department of Licensing hearings.   Simply put, Judge Schaffer found that the Department of Licensing’s rejection of the defense runs afoul of the legislatures intent and allows for erroneous loss of Washingtonian’s licenses.  Relying on State v. Votova 109 Wn. App. 529 (2001), Judge Schaffer ruled that the statute manifests the legislatures intent to favor intoxicated drivers who remove themselves from the public roadway to dispel the threat they pose to the public.

Three cheers for the skilled lawyering of Ryan Robertson, the appellate attorney in the case, and the courage of Judge Schaffer to make this ruling.

Kevin Trombold 206.382.9200

Larry Davis and Alan Northrop have been fully exonerated by the hard work of the Innocence Project Northwest and the profound impact of forensic science.  ”The bottom line is clear, Larry Davis and Alan Northrop are completely innocent,” John Pantazis said of his clients as a Clark County Judge dismissed their charges this week.  Convicted in 1993 of first degree rape, burglary, and kidnapping, both men spent 17 years in prison, most of their 20 and 23 year sentences, before DNA testing showed that they were not the perpetrators of a horrible, violent, rape of a woman.  Advances in DNA testing allowed for the small samples from under the victim’s fingernails and pubic hair to show that other men committed the crime even though she picked Davis and Northrop out of a live lineup back in 1993.  Apparently, a photo lineup, which was done prior to a live lineup, failed to identify Davis and Northrop.  The two originally came to the police’s attention after a very weak description (two men, one dark hair, one light hair) spurred an informant call to the police that Davis and Northrop were two friends, one with light hair, one with dark hair.  The victim didn’t have much opportunity to view her perpetrators as she was quickly bound and blindfolded in the horrible incident.

A dramatic example of prosecutorial power; the two were denied DNA testing for years because the prosecutors had sole discretion – ignoring advances in forensic science.   It wasn’t until 2006, after a change in the law, that a judge had the power to order a re-examination of the conviction with DNA science.  The National Academy of Sciences recent report on forensic science reminds us that one of the legal system’s goals, in conflict with science, is quick and final decisions – closed cases are closed.  Science evolves with a thirst for new information but the legal system strives for finality and closure for horrible and traumatic events like this case.   What is unclear in this case is why the Sheriff’s office still destroyed evidence right after the judge had granted DNA testing in 2006.

(left to right) IPNW Staff Attorney John Pantazis, Larry Davis, Alan Northrop, and IPNW Director Jackie McMurtrie.

Eyewitness misidentification has been involved in more than 75% of the now 255 exonerations nationwide involving DNA testing.  As Jacqueline McMurtrie, law professor at the University of Washington and clinic director of the University of Washington Innocence Project Northwest tells us, “every time an eyewitness misidentifies an innocent person, an actual perpetrator goes free.”

Since 1997, the Innocence Project Northwest, which is made up of volunteer students and attorneys, has overturned the convictions of 12 innocent people in Washington State.  Find out more about the Innocence Project Northwest

****photo credit to NW Innocence project (http://www.law.washington.edu/News/Articles/Default.aspx?YR=2010&ID=Conviction_Reversal)***

Kevin Trombold 206.382.9200

Summer vacation time is here.  Everyone’s hot and sweaty from loading the car for a trip to the beach, except the kids, who play in the yard with the dog under the sprinkler.  Exhaustion overwhelms you and your spouse as you manage the transition to a vacation spot, more commonly known as “childcare in another place.” Communications between you are strained, but you know that the labors are part of the trip.  Staying home without an agenda for the kids is just as much work, maybe more.  Last check around the house – all the lights are off.  You shout a proposal to the kids, “last chance for the bathroom,” the audience is silent.  The doors to the car close and everyone waits for you to fire up the engine with the key.

Is this a family magazine blog?  How can this be relevant to DUI attorneys?  Let me explain this bizarre yet timely and seasonal analogy.  Parents know the debate, stay home and watch the kids destroy the house versus releasing them on a beach – both methods of vacation have an energy tax – exhausting whether you have the keys in the ignition or you stay home and do nothing, but its going to happen either way.  The kids are out of school, you need to create an agenda, so it might as well be a good one.  It’s the same with litigation, exhausting whether you make something happen or not.  So why not make it a good one.  The case is going to trial so you might as well use your best tool (ER 702).  So lets jam the keys in the ignition, fire up our engines and put our energy into a experience that the court system will remember.

We start with a solid understanding of the admission standards of forensic evidence.  No one knows deals with them more frequently than DUI attorneys. Evidence Rule 702 is the key.  It states:

TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Coined the “assistance” rule, ER 702 followed the Frye test, which was established by the U.S. Supreme Court fifty years earlier in 1923, commonly referred to as the “general acceptance” rule.  In the case of Frye v. United States, the murder defendant sought to introduce a lie detector test to assert his innocence.  The U.S. Supremes said no, as it was considered experimental and hadn’t gained general acceptance in it’s particular scientific field.  Washington Courts have reconciled the two different standards allowing them both their own dominion of authority so that ER 702 has independent force and effect.  Even if something is generally accepted in the scientific community, it remains inadmissible under ER 702 unless it’s helpful to the trier of fact.

Keys For A Good Trip

In 2006, the Washington State Supreme Court, in City of Fircrest v. Jensen, when considering the constitutionality of the DUI statute, analogized to their decisions in two DNA cases (Cauthron  and Copeland, 1993 & 1996 respectively) for 702 and Frye analysis.

In Cauthron, the prosecution offered four witnesses, all of whom testified that the DNA evidence presented matched that of the defendant. The expert testimony did not provide any probability statistics.  Noting the requirement of ER 702 that testimony concerning DNA must be helpful to the trier of fact, the Court found, based solely on the failure to present probability statistics, that the testimony should not have been admitted, because it does not meet the test for expert testimony.

It is significant to note that the Court’s decision relied heavily upon the work of the National Academy of Sciences Committee (NAS) on DNA Technology in Forensic Science, “[a] committee of eminent scientists and jurists [who have] exhaustively researched and analyzed the current status of forensic DNA typing.”  In particular, the National Academies’ publication “DNA Technology in Forensic Science” was cited extensively.

In Copeland, The Court subsequently found DNA evidence to be admissible when it was accompanied by an appropriate estimate of the likelihood of the result.  Applying the rule set forth in Cauthron, the Court explained:

In the human population there are many versions of the DNA at a specific locus–these are called alleles…. If a suspect’s blood sample is found to “match” that of a forensic sample, then mathematical and statistical methods are used to estimate the frequency of the genetic profile in major population groups.

FN1. The scientific explanation here is drawn primarily from Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (National Academy Press 1992) (DNA Technology)…

…The court in Cauthron relied considerably upon conclusions drawn by a “committee of eminent scientists and jurists” (the Committee) that had researched and analyzed the status of forensic DNA typing under the auspices of the National Academy of Sciences. Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science (National Academy Press 1992) (DNA Technology ). The court held that the theory underlying RFLP typing was generally accepted in the relevant scientific community. The court also held that any remaining questions about the reliability of particular tests should be examined under standards for admissibility of expert testimony, which is within the trial court’s discretion. The court then addressed admissibility of the statistical evidence. Without introducing any evidence of population statistics or the frequency of genetic profiles, the State’s experts testified that defendant Cauthron’s DNA “matched” the forensic sample. This court ruled this testimony was improperly admitted because the jury was not informed of a scientifically valid estimate of the frequency with which matches might occur by chance. (quoting Commonwealth v. Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991)); Ex Parte Perry, 586 So.2d 242, 254 (Ala.1991); DNA Technology, at 74; see also Springfield v. State, 860 P.2d 435, 448 (Wyo.1993); Nelson v. State, 628 A.2d 69, 75-76 (Del.1993); Taylor v. State, 889 P.2d 319, 337 n. 80 (Okla.Crim.App.1995).

The court unanimously held that the methodology underlying the probability estimates must satisfy the Frye standard and concluded that the State failed to present any evidence of population statistics supporting its experts’ testimony that defendant’s DNA “matched” that of the forensic sample. The court held that the testimony should not have been admitted because it did not meet the test for expert testimony, which required satisfaction of the threshold Frye requirements and the 2-part test of ER 702. The court concluded: “Testimony of a match in DNA samples, without the statistical background or probability estimates, is neither based on a generally accepted scientific theory nor helpful to the trier of fact

As previously noted on this blog, the NAS Committee on Identifying the Needs of the Forensic Sciences Community released a report in 2009 entitled “Strengthening Forensic Science in the United States: A Path Forward.”  The report warns that forensic science in this Country is in a state of crisis and prescribes how the crisis can be solved.  In describing the crisis, the NAS concludes that “[t]he law’s greatest dilemma in its heavy reliance on forensic evidence…concerns the question of whether—and to what extent—there is science in any given ‘forensic science’ discipline.”  In particular, “[f]ew forensic science methods have developed adequate measures of the accuracy of inferences made by forensic scientists.” And even where adequate measures have been developed, “most reports do not discuss measurement uncertainties or confidence limits.”

A DUI Trial?

The NAS has established that considering the error associated with any measurement may make the difference between acquittal and a guilty verdict.  There is a critical need, the NAS tells us, for forensic scientists to more accurately report and testify about their conclusions.

As a general matter, laboratory reports generated as the result of a scientific analysis…should identify, as appropriate, the sources of uncertainty in the procedures and conclusions along with estimates of their scale (to indicate the level of confidence in the results)…to allow the nonscientist reader to understand what has been done and permit informed, unbiased scrutiny of the conclusion.

Let’s repeat that.  A nonscientist juror must understand and be able to scrutinize and deliberate based on the reporting.  DUI attorneys should ask how would the judge or jurors reflect upon a breath test ticket?  What does the breath ticket tell us about the limits of the analysis?  What help did the state toxicologist witness provide about the limits of the analysis?  Any interpretation of the breath tickets in Washington State, without a reporting of the error associated with the reading, can only be speculation.  Simply put under ER 702, if the result cannot be interpreted then the result is meaningless to the jury.  It fails to assist the trier of fact and so it fails under a ER 702 analysis.  It means absolutely nothing.

*****  Special thanks to Ted Vosk for allowing me to borrow his work from legal briefings filed in courts all over State of Washington in which he is arguing to exclude breath tests measurements as they fail under a ER 702 and a ER 403 analysis. ******

Kevin Trombold 206.382.9200

Let me introduce you to what may be the landmark of a new era in forensic science – a document that is now referred to as “The NAS Report.” The National Academy of Science (NAS) produced a report last year called “Strengthening Forensic Science in the United States: A Path Forward.” This report is available as a nice user-friendly book (I like to call it, the “little blue book“) on Amazon from in between $20-$30 or you can purchase a digital version from the NAP.

This report will consume you.  You will become enlightened with priceless information regarding the state of forensic science in the United States.  You will be able to tell judges, juries, and prosecutors, “the establishment now tells us that the law’s greatest dilemma, in its heavy reliance on forensic evidence, concerns the question of whether -and to what extent- there is science in any given forensic science discipline,” or  “The current situation…[in forensic science] is seriously wanting, both because of the limitations of the judicial system and because of the many problems faced by the forensic science community. ”

It is undeniable that, with the NAS report, the establishment has spoken. In this report, the theme and status of forensic science in the US is summarized in two words, “seriously wanting,” (page 19).  Here are some more quotes to raise your interest in this indictment of the judicial system with its inability to control forensic science, as according to the NAS, the courts cannot change forensic science.

The law’s admission of scientific evidence should analyze “1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and 2) the extent to which a particular forensic discipline relies on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards,” (page 9).

“Criminal courts are loath to insist on research as a condition of admitting forensic evidence,” (page 12).

“With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” (page 7).

The Little Blue Book

Judicial review of forensic sciences will not cure the issues at hand, the NAS tells us.  The courts’ ineptitude comes from its institutional need to reach a quick and final resolution in pending criminal and civil matters, versus the scientific community, which exists in a state of perpetual revision.  Science and knowledge evolve but the law prefers to stay the same as it is based on precedent and strives to remain unchanging.  But, the law relies heavily on forensic science and the adversarial process to solve questions of fact.  Compounding this is the deferential nature of appellate courts when reviewing trial court decisions on scientific evidence.  The trial court judges are allowed broad discretion, which is commonly upheld by the appellate courts.  With the trial courts’ heavy caseloads and pressures to move cases through the system rapidly, there is no place for time consuming analysis of scientific methods.  Law enforcement witnesses are relied upon for their expertise regardless of validation issues or subpar reporting methods of the relevant scientific results.

The Committed was created because of the shambles noted above. Congress acted in November of 2005 by directing the NAS to conduct a study on forensic science – and it was a big study.  In the fall of 2006, the NAS established the project title, Committee on Identifying the Needs of the Forensic Science Community.  Countless hours and materials were logged by the long list of committee members that were highlighted by eight two-day meetings ending in November of 2008.  The release of the final report in early 2009 initially sent shock waves through the forensic science community.  But, incredibly, here in Washington State, there are state toxicologists who haven’t even read it yet – even to this day.  It is understandable why lawyers and judges haven’t read the report; the report itself discusses the overburdened workload of judges and lawyers in the criminal courts.  But why a toxicologist hasn’t read the report is worrisome.  When the report calls for a higher quality of education amongst personnel in our state labs it assumes that they will take an interest in that education.  Not reading the report, which may be the genesis of their education dollars, shows a lack of intellectual interest – and the NAS discusses raising the quality of personnel in the forensic sciences.

Understanding the time pressures upon all judicial system players, allow me to summarize the thirteen points spelled out in the first 35 pages of the report.

1) Create the NIFS – The report calls for the creation of a National Institute of Forensic Science, for which a bill was later drafted and is somewhere in the federal legislative soup pot of the smaller yet more powerful Washington.  This institute would promote the development of forensic science to a mature field of multidisciplinary research and practice, founded on the systematic collection and analysis of relevant data.

2) Reporting Data- The International Organization for Standardization (ISO) has developed appropriate standards that should be adopted.  ISO 17025 is used widely outside forensic science for standards, templates and protocols for data reporting and should be adopted.

3) Research validity using uncertainty analysis – Quantifiable, methods that establish validity of forensic methods are needed.  NIFS should fund such research.

4) No Prosecutorial Control  - Congress should give money for all laboratories to be removed from under the control of prosecutors.

5) Research human error/bias – The NIFS should encourage research on human observer bias and sources of human error in forensic examinations.   Studies should examine the influence of what an investigator knows regarding a suspect’s background or the investigators theory of the case.

6) Standards – Congress should give money for NIFS to work with NIST and all laboratories to develop tools for advancing measurement, validity, reliability, information sharing, proficiency testing, and protocols.

7) Certification & Accreditation – Laboratories and individuals should be certified to ISO standards.  No one should be allowed to practice or testify without certification.  Currently lacking is any kind of systematic or routine feedback for improvement.  Forensic science is not a self-improving discipline.

 QAP – Quality control procedures should be designed to identify mistakes, fraud, and bias; confirm continued validity and reliability; correct procedures and protocols that are in need of improvement

9) Ethics – NIFS should establish a national code of ethics.  Currently there are no professional standards similar to what lawyers have.  A NIFS code of ethics should have an enforcement mechanism and have bearing on individuals’ certification.

10) Education/Training – Congress should give money so that NIFS can develop graduate programs at schools so that forensic practitioners understand the principles, practices, and contexts of scientific methodologies.   Labs need to move beyond apprentice type training to education based on scientifically valid principles.

11) Death Investigation – Congress should give money so that NIFS can raise education, training, accreditation, adherence to standards in medical examiners and coroner’s offices.

12) Database/AFIS – Congress should give money so that NIFS can achieve nationwide interoperability of fingerprint data.

13) Homeland Security – Congress should give money so that NIFS can work with CDC and FBI toward preparing forensic scientists for terrorism type crimes

You may notice a theme, lots of money from Congress to the NIFS.   In the business world, the term is “deal breaker.”  Monies will go nowhere in the criminal justice system unless labeled “law enforcement.”  Call me cynical but particularly during a recession, the best thing that could happen in Congress is nothing at all.  The recession will increase the already dominant law enforcement pressure on Congress so that any dollars earmarked for forensic improvement will be entrusted to an existing law enforcement agency for growth in personnel.   The NAS Report utility is solely as a tool for defense attorneys and judges.   Unless used in the trenches by criminal defense attorneys there will only be more law enforcement.  Defense attorneys must use the scientific ideas discussed inside the report or there will be no change in the forensic science community.    A recent discussion with the state toxicologist summed it up: to the question of “why don’t you implement the better practice that was being discussed” she said, “Because we don’t have to.”

What the NAS suggests is known by another name, it’s called “the scientific community.”  The sole missing link is that the forensic community needs to rely on it instead of acting as their own distinct branch of science altogether.  Until defense attorneys raise their fists with the report in hand, the forensic community will not be wedded to the science community – it doesn’t have to.

Kevin Trombold 206.382.9200

Trooper Casey Myers, of the Washington State Patrol, has gone above and beyond learning about driving under the influence – in fact, he has had first hand experience with this charge… and not as the arresting officer. Last October 9^th, 2009, at approximately 3 pm in Pullman, Washington, Trooper Myers ran a stop sign, was arrested for suspicion of DUI by Pullman police and blew a .11 on the breath machine at the police station.  Trooper Myers ended up pleading guilty to Negligent Driving, a reduced charge.

Trooper Myers is the arresting officer in multiple DUI cases that are still pending in the courts.  The prosecutor’s in these cases have fought to keep their juries from being informed of Trooper Myers’ defendant status but King County Judge Eileen Kato has ruled that the jury shall hear about Trooper Myers’ DUI case.

Regular Can, Tall Boy, Man Can

The King County Prosecutor’s Office official position on this issue is that “The cases [where Trooper Myers is the arresting officer] won’t likely be impacted by [Trooper Myers’] arrest, despite Trooper Myers’ credibility being at stake for the comments he made during his arrest. Trooper Myers told his arresting officer that he had consumed 25 ounces of beer, equivalent to a “Man Can,” eight hours prior to his arrest but yet he still blew a .11 at the station.  If that were the case, consuming 25 ounces, and eight hours earlier, then most likely his breath test reading would not be so high. The defense in the case in question told Judge Kato “to be completely frank, it does not appear that [Trooper Myers] was truthful that evening when interviewed by officers.”  Judge Kato agreed with the defense, finding that Myers’ credibility out to be fair game during this trial.

How can prosecutors claim that Trooper Myers’ testimony in the pending arrests of others not affect their case?  Imagine the Troopers testimony:  ”I’m a hypocrite, I don’t think I should go to jail for DUI even thought that’s what I why I put others in jail. Or, “I know the accused was drunk because I’ve driven drunk before.”  Or maybe, “I believe the breath machine was an accurate measure of the accused breath alcohol because when I was arrested for DUI I got the same number on my test.”  Or even, “I’m certain the accused was drunk when he was driving because I blew a .11 last year and did better on the field tests than he did.”  I’m missing out on the fun, good cases if that testimony is normal.

May I suggest an appropriate jury instruction in the pending King County DUI cases from merriam-webster.com:

hy·poc·ri·sy

Pronunciation: \hi-ˈpä-krə-sē also hī-\Function: noun Inflected Form(s): plural hy·poc·ri·sies

Etymology: Middle English ypocrisie, from Anglo-French, from Late Latin hypocrisis, from Greek hypokrisis act of playing a part on the stage,

A feigning to be what one is not or to believe what one does not; especially: the false assumption of an appearance of virtue or religion

I like the Late Latin “hypocrisies” etymology.  Although, we should think of what level of crisis we are in when officers can do this and be supported by prosecutors.

How Much Hypocrisy?

This is one case in which the defense should maybe agree that the arresting officer is an “expert” due to his personal experience.  A term of art for the legal profession implying that a witness has special knowledge that will assist the Trier of fact.  Usually DUI cases involve significant battles over whether or not arresting officers qualify as experts.   The defense’s position is normally that the officers aren’t scientists and don’t have any special knowledge but lots of practice of bad habits of arresting the innocent.  The evidence rule is 702:

TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

For some reason the prosecution has changed their position here.  The normally exhaustive testimony of the arresting officers training and experience doesn’t include his practice of drunk driving.  In this case the successful arguments of Miguel Duran convinced King County District Court Judge Eileen Kato th at his DUI case is something the jurors should hear about.

Apparently, according to Duran, the defense attorney in the case on appeal, Myer’s own arrest report indicates that he lied to the arresting officer.  He falsely represented that he had one 25-ounce beer (one man-can is usually 24 oz.) eight hours prior.  Judge Kato said that Myers is the main witness for the prosecution and as such his veracity is central to the state’s case.  A prior false statement to law enforcement, as a law enforcement officer, tends to diminish credibility… so much for the Trooper’s qualifications as an expert and what about his basic abilities as a witness to be truthful?

What was the jury’s verdict?  The jury has yet to be told of Trooper Myers DUI as the truth-seeking King County Prosecutors Office have appealed Judge Kato’s decision.  They don’t want the jury to know the whole truth – that Trooper Myers, a commissioned officer of the law, leaves a lot to be desired when it comes to honesty and following the law that he has been hired to uphold.

In the end, it’s lawful to drink and drive.  If officers are experts then they should know when to have that last drink and the amount of time to wait before driving. This writer has no moral high ground to stand on.  I’m a normal person trying to have fun and be legal.  It’s the prosecutor’s position that is hypocritical.  They have enormous amounts of power in the court system and must administer justice with an even hand. It’s the King County Prosecutors who place, in the case of Trooper Myers, officers above the law.

Kevin Trombold 206.382.9200

On July 1, 2010, the Washington Supreme Court ruled that reliability must be shown in criminal cases when the State is prosecuting with scientific evidence from machines.  They said that in order for measurement results to be admissible, they party offering the evidence must show that the machine was functioning properly and producing accurate results.  That seems pretty obvious to the normal person, but these terms trigger a requirement that the machine used was calibrated, inspected, and shown to produce results comparable to a known standard to be helpful in resolving the dispute in question.

The case before the Washington Supreme Court, State v. Bashaw, was a drug delivery case, which involves a doubling of the maximum sentence if the State can show that the defendant committed the crime within 1000 feet of a school bus stop.  The evidence in question in that case was the testimony of the detective who said that he measured the distance with a measuring wheel.  No evidence of accuracy was offered except that the machine produced a result, “it click[ed] off feet and inches,” as the detective pushed it.  Nothing was offered to suggest that the numbers produced were accurate.  The Court ruled that the State failed to show that the Detectives testimony was relevant – it failed a legal test called authentication.  Let me explain this evidence rule that lawyers refer to as ER 901 (a)

If something isn’t what it purports to be then it doesn’t help prove or disprove a fact in dispute.  The classic example is documents.  If the document isn’t shown to be the actual document in question, then it won’t help prove or disprove anything that is at issue in the case.  If its not the document signed by the parties, for example, then it doesn’t help us resolve the question that one of the parties actually read the document.  It matters if the document admitted into evidence has the parties signature but only the actual document will show that.

Machines that measure must be accurate and reliable

Another example is a car: imagine a car owner arguing with a mechanic about whether or not the mechanic actually changed the oil in car A.  To resolve the dispute a third person inspects some other car, say car B – not the car in question.  Their testimony would not help resolve the question of the oil change of car A so it wouldn’t be admissible in the case.  The evidence in question, an inspection of car B, would fail the relevance and authentication requirements of ER 901(a).

Another example of this initial threshold requirement of evidence called authentication is tape recordings.  The people identified in the tape recording must be shown to be the people purported to be in the tape recording.  If not then we don’t care to bother with the tape recording because it has nothing to do with the proceedings.  A tape recording must be authenticated before it becomes relevant.

The same for machine measurements of distance said the Supremes, without a showing that the machines results are accurate and reliable they don’t prove or disprove anything about the case – they won’t be admitted.

Kevin Trombold 206.382.9200

In the halls of the prosecutor’s office it will be referred to as the “Castle Rule”- but this rule will die young.

The Court of Appeals in Seattle rebuked DUI prosecutors for a delay in filing charges when they upheld a lower court’s dismissal of felony DUI charges.  While the arresting officers of the Washington State Patrol (WSP)  are required to complete their police report prior to ending their shift, state prosecutors often let up to a year pass before they file DUI charges. And while the statute of limitations allows the prosecutors to delay that long the Court of Appeals didn’t allow the prosecutors to delay but then pretend like they didn’t delay if it hurts their case. You can be sure that Mothers Against Drunk Driving (MADD) will be on the phones after reading this one.

But its not just law enforcement interests that suffer when prosecutors delay.  DUI defense attorneys know well the stressed voice of clients awaiting charging.  Rightly or wrongly accused, people arrested for a DUI know that a charge is coming and wait nervously for the matter to begin with a summons in the mail.  They often want to get on with it, resolve it, and move on with their life.    DUI charges come to good people who just made one bad mistake but are very motivated, hard working, good people, struggling to hold their life together under the stress of anticipation of the summons (order of the court to come to court).  Some unknown horrible event that involves mandatory jail is going to be initiated any day, but they don’t know when.  The daily routine of checking the mail before the teenage children goes on and on.  Somehow knowing when a certain pain is coming is easier psychologically.  Its like removing your own bandage.  Somehow, someone else tearing off a bandage hurts the bandaged person more than doing it themselves.  The Castle Rule should end that waiting period for the accused – but only temporarily.

What is the Castle Rule?

The unanimous Court of Appeals, Division One, declared last week that the DUI sentencing statute is clear and unambiguous when it dictates the qualifications for felony level DUI prosecution.  ”Four prior DUI related convictions” means that the prior “convictions” must have been “convictions” at the time the person commits the fifth DUI for an accused to meet the definition of the felony DUI statute. If the prosecutor delays filing their paperwork and the accused isn’t promptly brought to justice the matters may not be resolved to “convictions” prior to the commission of a fifth DUI driving act.  So, if the prosecutors don’t file charges and instead choose to wait out their statute of limitations, and the accused is repeatedly arrested for DUI, there will be no felony DUI charged until after the four of them have been resolved in court prior to the accused driving again.  The act of driving must occur after four DUIs have been resolved in court to trigger the felony DUI statute.

Prosecutors will quickly change the rules back to allow them to delay

Unsuccessful was the prosecutors argument that the time of adjudication dominates how we categorize crimes.  The time of the alleged bad act is the rule here.  The status of the person at the time they committed the offense dictates the crime.  No doubt the sentencing phase, with so many cases pending, would be perilous for the accused.  But no felony.

Of course, seasoned criminal attorneys will cynically read of the Castle decision and accept “the rule” but only as temporary.  The decision is a mere legislative agenda item for next winters session in Olympia.  Most prosecution losses end that way – they change the rules.   Agenda item #1:  allow prosecutors to take years to file charges yet suffer no consequences.  The voice of the accused doesn’t have much of an audience in the legislature.  So if the Castle Rule shortens the waiting period for the accused it will return after a short hiatus.