Washington State Trial Lawyer’s Association Annual Conference – “What’s Up With DUI’s”

By Stephen Hayne


Untimely filing

1.To dismiss based on the failure to comply with mandatory filing requirements of CrRLJ 2.1(d)(1) and (2), State v. Greenwood, 120 Wn.2d 585 (1993) and Seattle v. Bonifacio, 127 wn.2d 482 (1995).

CrRLJ 2.1(d)(2): The citation and notice [to appear in court] shall be filed with the clerk of the court within 48 hours after issuance. A citation and notice not filed within the time limits of this rule may be dismissed without prejudice.

Bonifacio: Failure to file in timely manner “constructively” begins speedy trial time period from date citation should have been filed.

Portable Breath Test

2. To suppress any breath test results performed on a portable breath test machine. Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923); State v. Cauthron, 120 Wn.2d 879 (1993), Seattle v. Peterson, 39 Wn.App. 524 (1985); State v. Riker, 123 Wn.2d 351 (1994), Bokor v. DOL, 74 Wn.App. 523 (1994), RCW 46.61.605(3).

Bokor held: In determining whether probable cause exists to make an arrest, a police officer may not rely on data obtained from a portable breath test unless the officer (1) has some understanding of how the device works or assurances of its reliability from an expert with knowledge of the underlying principles on which the device is based and

(2) a reasonable basis for believing the device will produce reasonably reliable results under the circumstances in which it is used, including adequate maintenance and correct operation.

Gaze Nystagmus

3. To suppress the results of any nystagmus “gaze test” administered to the Defendant in this matter. Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923); State v. Cissne, 72 Wn.App. 677 (1994), Seattle v. Peterson, 39 Wn. App. 524 (1985); RCW 46.61.605(3).

Cissne: Frye standard of general acceptance in relevant scientific community must be met prior to admissibility and proper foundation must be laid by proponent of evidence.


4. To suppress all evidence gathered following use of radar as basis for stop. Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923); Seattle v. Peterson, 39 Wn. App. 524 (1985); CrRLJ 6.13(d).

Peterson: Frye standard applies as pre-requisite to radar result admissibility requiring adequate foundation as to reliability.

Dilated pupils

5. To suppress any testimony regarding pupil dilation and/or reaction to light observations. Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923); Seattle v. Peterson, 39 Wn.App.524 (1985), State v. Cauthron, 120 Wn.2d 879 (1993), State v. Riker, 123 Wn.2d 351 (1994).

Riker: Frye standard for admissibility of “scientific” evidence still applies in criminal cases, notwithstanding U.S.Supreme Court holding in Daubert v. Merrill, 113 S. Ct. 2786 (1993).


6. To dismiss or, in the alternative, for suppression of evidence based on the illegal stop, detention and arrest of the Defendant. Wash. Const. Art. 1, § 7; U.S. Const. Amends. IV and XIV; RCW 46.64.015; and CrRLJ 3.6, Terry v. Ohio, 392 U.S. 1 (1968), State v. Thornton, 41 Wn.App. 506 (1985), and State v. Michaels, 60 Wn.2d 638 (1962).

Article 1, § 7: No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Field sobriety tests

7. To suppress all evidence obtained in the course of “field sobriety” or other physical agility tests administered to the Defendant herein. Washington Const. Art. I, § 7; U.S. Const. Amend. IV, Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923), State v. Riker, 123 Wn.2d 351 (1994), Seattle v. Personious, 63 Wn.App. 41 (1991).

Personious: The City concedes, however, that Personious had no legal obligation to perform a field sobriety test and we emphatically agree. (at 465).

Defendant’s statements

8. To suppress all statements attributed to the Defendant at the time of arrest and for hearing pursuant to CrRLJ 3.5. In addition to suppress all statements allegedly made by the Defendant in response to the officer’s questions following his request for counsel and/or invocation of right to remain silent. Edwards v. Arizona, 451 U.S. 477 (1981), State v. Johnson, 48 Wn. App. 681 (1987).

Johnson: …an accused who asserts his right to counsel during custodial interrogation is not subject to further interrogation without counsel unless the accused himself initiates further communication, exchanges, or conversations with the police. (at p. 685, quoting Edwards v. Arizona, supra.).

Right to counsel

9. To dismiss or, in the alternative, suppress evidence due to violation of the right to counsel based on Wash. Const. Art. 1, § 22; U.S. Const. Amend. VI; State v. Fitzsimmons, 93 Wn. 2d 436 (1980), Spokane v. Kruger, 116 Wn. 2d 135 (1991), State v. Prok, 107 Wn. 2d 153 (1986), Seattle v. Koch, 53 Wn.App. 352 (1989), Seattle v. Box, 29 Wn.App. 109 (1981) and the provisions of CrRLJ 3.1(c)(2).

Inaccurate warnings

10. To suppress the breath test results on the grounds that the Implied Consent Warnings read to the defendant were erroneous and inaccurate in that no probationary license is conferred upon minors following a test result of .02 or above, pursuant to State v. Bartels, 112 Wn.2d 882 (1989), Spokane v. Holmberg, 50 Wn.App. 317, (1987), Cooper v. DOL, 61 Wn.Ap. 525 (1991).

Bartels: …when the State has interfered with a driver’s opportunity to make an intelligent judgment whether to submit to a blood alcohol test, we have suppressed the test results, (at p. 889)

Non-statutory language in warnings

11. To suppress results of the breath test on the grounds of inclusion of additional language in violation of the requirements of RCW 46.61.308 and the holdings of State v. Bartels, 112 Wn.2d 882 (1989), Spokane v. Holmberg, 50 WnApp. 317 (1987) and Cooper v. DOL, 61 Wn.App. 525 (1991).

Holmberg: [The State argues] that suppression of [the breath test] would penalize society simply because the officers derogated from the stature’s mandate and since the defendants were not prejudiced by this derogation. We disagree. Society is penalized when officers derogate from the mandates of the Legislature… we believe strict compliance is the better rule. (at p. 324).

Uncertified software

12. To suppress the breath test results on the grounds that the software utilized in the BAC Verifier DataMaster breath test machines has not been properly tested nor certified pursuant to the requirements of Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923), State v. Cauthron, 120 Wn. 2d 879 (1993), State v. Riker, 123 Wn.2d 351 (1994).


13. To suppress evidence of the Defendant’s alleged “refusal” to take the breath test pursuant to ER403 and State v. Long, 113 Wn.2d 266 (1989); State v. Parker, 16 Wn.App. 632 (1976).

Long: While a refusal to submit to a breath test is generally admissible, the trial court may exclude such evidence if the probative value of such evidence is found to be substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.


14. To dismiss for lack of facts sufficient to support a finding of guild beyond all reasonable doubts. State v. Knapstad, 107 Wn.2d 346 (1986).

Knapstad: …a trial court may dismiss if the State’s pleadings including any bill of particulars, are insufficient to raise a jury issue on all elements of the charge. (at p. 352).

Defective charging document

15. To dismiss based on a defective charging document. Auburn v. Brooke. 119 Wn.2d 623 (1992); State v. Leach, 113 Wn.2d 679 (1989); State v. Kjorsvik, 117 Wn.2d 93 (1991).

Corpus delicti

16. To dismiss the charge on the grounds that the prosecution is unable to prove the requirement element of identification of the defendant as the driver in that there is insufficient evidence of the corpus delicti of the crime independent of the defendant’s statements, pursuant to State v. Hamrick, 19 Wn.App. 417 (1978), Bremerton v. Corbett, 106 Wn.2d 569 (1986).


State v. Hamrick, supra, recognized that proof of the corpus delict differs from many crimes where identity is not an element of the corpus delicti. Hamrick, at 419. Proof that a car ran off the road, caused an accident or stopped in a traveling lane does not establish that an element of the offense was committed. Likewise, proof that in a case charging driving or being in physical control of a vehicle while intoxicated someone was intoxicated does not prove that that person drove or was in control of the car. Inherent in the offense is the requirement that the intoxicated person was the driver or was in control. The corpus delicti cannot be proved without proving someone’s criminal agency which in turn requires identification of a particular individual who is under the influence. Thus, as in Hamrick, the corpous delicti of the offenses charged here cannot be established absent proof connecting the petitioners with operation or control of a vehicle while intoxicates.


.08 ordinances

20. To dismiss based on the legal doctrine of pre-emption and prohibited conflict with State law. Republic v. Brown, 97 Wn.2d 915 (1982), Seattle v. Williams, 128 Wn.2d 341, (1996).

Williams: …statutory provisions relating to vehicles and their operation must “lack variation” throughout the State. More to the point, we believe that by this language, the Legislature intended that acts prohibited by statutes within Title 46, the Motor Vehicle Code, should be uniformly proscribed throughout the State, including within all incorporated cities and towns.

Unconstitutional delegation

21. To dismiss based upon the City’s unconstitutional delegation of its legislative powers by purporting to adopt future amendments to the State’s DWI law “by reference”. Brinkley v. Motor Vehicles Division, 613 P.2d 1071 (Or. App. 1980), RCW 35A.12.140, 65.16.160 Seale v. McKennon, 215 Or. 562, 336 P.2d 340 (1959).

Seale: [w]hen a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference, and not as subsequently modified. (at p. 572)


Witnesses presence at hearing/trial

22. Defendant hereby notes an objection to proof of any material fact at hearing or trial by affidavit or certificate. A certified BAC Verifier DataMaster technician and the person(s) who conducted any quality assurance tests as well as the person(s) responsible for preparing, storing and installing the simulator solution concerned herein IS HEREBY DEMANDED AT HEARING OR TRIAL, including any and all records pertaining to the preparation, checking and installation of the simulator solution used in this case, including the gas chromatograph charts regarding the solution in accordance with CrRLJ 6.13 and RCW 46.61.506(6), along with a copy of his or her permit.

Expert witness

23. For discovery of the identity of any state expert witness concerning evidence of either breath or blood alcohol concentration or the effects of alcohol or any drug on the defendant’s ability to operate a motor vehicle. CrRLJ 4.7, State v. Dunnivan, 65 Wn.App. 728 (1992).

Experts background/basis of opinion

24. Defendant requests discovery of the education and training of any expert witness the prosecution intends to offer, both general and specific to the subject of his or her testimony experience relative to the operation, maintenance, and theory of the instrument used to test the defendant’s blood or breath, or simulator solution and a description of the place, date, and subject matter of all training taken by said witnesses regarding the instrument in question or the effects of alcohol or drugs on the human body and a full description of any experiments in which said witnesses have participated or about which he or she may testify, and any documents, studies, reports or other materials relied on or material to any aspect of his or her testimony. CrRLJ 4.7(a), State v. Dunnivan, 65 Wn.App. 728 (1992).

CrRLJ 4.7(d) Material Held by Others. Upon defendant’s request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting authority, the prosecuting authority shall attempt to cause such material or information to be made available to the defendant. If the prosecuting authority’s efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.

Dunnivan: For purposes of CrR 4.7(a)(1)(v), which requires a prosecutor to reveal documents which the prosecutor intends to use in a hearing or trial, a prosecutor “intends to use” a document if the State is aware of the document will be used during any phase of the trial whether it be in the State’s case-in-chief, for rebuttal, for impeachment purposes, or in some other way.

Datamaster records

25. To compel production of all documents and records of certifications, evaluations, maintenance, repairs, and telephone complaints for the Datamaster machine in question. RCW 4661.506(6) and CrRLJ 4.7(d), State v. Dunnivan, 65 Wn.App. 728 (1992).

Bill of Particulars

26. For a written Bill of Particulars, including a description of all facts upon which the prosecution intends to rely to support the charge pending against the Defendant, and a copy of the specific statute or ordinance under which the Defendant is charged CrRLJ 2.4(e): State ex rel Clark v. Hogan, 49 Wn.2d 457 (1956).

6. State v. Rodger Smith, 130 Wn.2d 215 (1996)

Held: Non-approved breath test testing device (portable breath tester here) not admissible to establish probable cause without Frye hearing (harmless error if sufficient independent evidence to establish PC).

7. State v. Rivard, 131 Wn.2d 63 (1997)

Held: Reading of Miranda rights alone does not constitute an “arrest.” A person not under formal arrest is not entitled to be read implied consent warnings prior to submitting to blood test. The issue is one of “voluntariness” of the blood draw.

8. State v. Crediford, 130 Wn.2d 747 (1996)

Held: “Two hour rule” not unconstitutional since it establishes an “implied element” (which must be proven beyond a reasonable doubt) that defendant had enough alcohol in his system at the time of driving to make the breath test accurate. Held also: The affirmative offense portion of the statute requiring a defendant to prove he’d consumed enough alcohol after driving to result in breath test over legal limit unconstitutionally shifts burden of proof from state to defendant.

9. State v. Lamar Smith, 84 Wn. App. 813 (1997)

Held: 1) A blood sample drawn during medical treatment for injuries due to car accident is subject to seizure by the state upon a warrant based on probable cause. 2) Once a defendant testifies in a criminal trial involving an alcohol related charge, the physician-patient privilege is deemed permanently waived and medical blood test may be used to impeach.

10. State v. Brokman, 84 Wn. App. 848 (1997)

Held: Under the implied consent law, a defendant must give as many breath samples as are necessary to complete a “valid” test pursuant to the protocol established by the Washington State Toxicologist.

11. State v. McLendon, 131 Wn. 2d 853 (1997)

Held: Separate administrative driver’s license sanctions for DUI arrest do not constitute “former jeopardy” in DUI prosecution under double jeopardy clause of constitution.