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Last year, a new Washington DUI law was passed that was supposed to make the state tougher on drunken driving and breath-test results more difficult to keep out of court.  

Judges have been handing down conflicting rulings on the question of whether lawmakers went too far since the DUI law took effect, and what it means for people facing the drunken driving charges in their courtrooms.  

While three Seattle Municipal Court judges believe the law is fair, three others said parts of it are unconstitutional.  The state Supreme Court has now agreed to decide whether the law, which the 2004 Legislature passed unanimously, should stand, and justices are expected to hear arguments this fall.  

Some accused drunken drivers have been allowed to plead guilty to less serious charges when judged have rejected the new DUI law in its entirety, but in other courtrooms where judges have upheld the law or struck down just a portion of it, they have allowed the breath-test evidence to be heard in court.  

According to defense attorneys, judges have kept hundreds, possibly thousands, of breath-tests out of court because of flaws.  One argued flaw with the new DUI law is that it tells judges to assume the prosecutor’s evidence in a way that favors the prosecution in deciding whether breath-test results can be used in trial.  Those opposed to the law believe it takes away any ability to challenge the breath-test results, which can easily sway a jury.

It has been argued that having diabetes or following the Atkins diet can influence a reading for alcohol, producing falsely high results.  Attorney Linda Callahan, who will argue against allowing the new law to stand at the Supreme Court, said in a spontaneous experiment on her own machine she once blew a 0.08, the legal limit, after eating a banana.  

Some judges and attorneys challenge the new law because it does not allow a person to defend themselves by challenging the breath machine, but Pamela Loginski, who will defend the law at the Supreme Court, said the state 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.  Loginski says the new law makes it so the breath tests are treated like other scientific evidence in court, such as DNA or fingerprints.  

According to Seattle City Attorney Tom Carr, drunken drivers were getting off easy before the new law because of technical issues – including whether a breath -test machine’s thermometer had been certified according to highly detailed state codes.  In 2004, prosecutors in Washington filed more than 43,000 charges of driving or having control of a vehicle while under the influence of alcohol.    

Judges have also accused the law of being unconstitutional because it tackled more than one subject, which the state Constitution says cannot occur so that everyone is aware of what is being proposed to keep provisions about other things from being sneaked into the legislation.  Defense attorneys have argued the 2004 “Act Relating to the admissibility of DUI tests” includes unrelated things like when the Department of Licensing can suspend someone’s driver’s license and how breath tests are handled in other crimes, which some judges have ruled are not closely enough related.

The Supreme Court will consider the new laws in a case from Fircrest Municipal Court, where a judge upheld the laws.    

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