By Jim Haley
Herald Writer
An Everett judge has ruled that the constitutional rights warning the Washington State Patrol reads suspected drunken drivers before arresting them and administering breath tests is lacking.
Everett District Court Judge Roger Fisher threw out key evidence in a drunken-driving case because the officer gave insufficient warnings to the defendant about obtaining a court-appointed attorney before taking a breath test.
The decision could affect up to 200 other DUI cases pending in that court alone, prosecutors said.
But prosecutors say they will appeal the decision to Snohomish County Superior Court.
Last week, Fisher suppressed evidence gathered from the breath test for an Everett man who had registered more than twice the legal limit of .08 percent after he was stopped by a state trooper in December.
On Thursday Fisher denied a prosecutor’s request to reverse that decision.
Deputy prosecutor Michael Sheehy said there are scores of other cases that have similar circumstances that could be in jeopardy if Fisher hears them. And defense attorneys practicing in Everett District Court may try to get their drunken-driving cases heard by Fisher.
His ruling isn’t binding on other district or municipal court judges. In fact, a case similar to the one that Fisher reviewed was upheld last week by the Everett court’s second judge, Thomas Kelly, Sheehy said.
Sheehy and Anna Goykhman, a public defender, said they’re not aware of the same argument being tried in other courts throughout the county, but they expect it will happen soon.
In the spotlight is the standard State Patrol warning card that Fisher accused of being poorly drafted. It’s the same warning that officers of many police departments use.
The warning tells a defendant he or she is entitled to an attorney and has other rights under the U.S. Supreme Court’s Miranda decision.
The patrol form also tells defendants they have a right to a court-appointed attorney if they can’t afford one before police question them.
Fisher found that the state "rights" form is deficient because it did not specifically inform this defendant that he had a right to advice from a court-appointed attorney before taking the breath test.
"That’s the whole issue here," Fisher said in court Thursday, adding that a defendant might be misled to believe that he has to pay for attorney for advice before taking a breath test.
That was Goykhman’s argument. She said the defendant needed to be told he could get a free legal advice before taking the breath test if he couldn’t afford to hire his own lawyer.
Sheehy argued that this defendant was told twice that he had a right to an attorney, including a right to one at no cost before being questioned.
"He chose not to exercise those rights," Sheehy told the judge.
He argued there’s no legal reason why these Miranda warnings are insufficient "or that a defendant must be advised of an attorney at no cost prior to the administration" of the breath test.
Fisher disagreed.
For the time being, the State Patrol doesn’t plan to change its Miranda warnings, area spokesman Trooper Lance Ramsay said.
"That’s probably something (headquarters in) Olympia will look at," Ramsay said. "We will just stand with business as usual and wait for a final ruling."
You can call Herald Writer Jim Haley at 425-339-3447 or send e-mail to haley@heraldnet.com.
Talk to us
> Give us your news tips.
> Send us a letter to the editor.
> More Herald contact information.
