New Dwi Law Puts Cases On Hold Court System Waits While Defense Lawyers Attack Merits Of Tougher Statute

Hundreds of drunken-driving cases in Spokane County are in limbo while defense attorneys attack the constitutionality of the state’s get-tough law.

Law enforcement officials are confident the law will survive the test.

But even if they win, the public may lose.

The sudden reactivation of a glut of cases - now on hold while the law is debated - threatens to overwhelm city and county prosecutors, who may be forced to play “let’s make a deal” on a large scale.

“When they come back to us, it will create a tremendous overload on the system,” said Deputy Prosecutor Dave Nehen.

“It’d be like taking all the sick people out of the hospital, storing them in a building, then bringing them into the ER all at once,” he said.

“It means you’re going to have a lot less people convicted of driving under the influence,” warned District Court Judge Sam Cozza.

That’s the opposite of what drafters of the law intended.

Last year, the Legislature passed a tougher drunken driving law, including new penalties for refusing to take a breath test and revocation of a driver’s license for motorists suspected of drunken driving.

Since then, legal battles have flared around the state. Judges in Thurston and Whitman counties declared the law unconstitutional, sparking appeals.

In Spokane, Superior Court Judge Robert Austin is set to hear legal arguments Oct. 16.

He will rule on two key issues:

Does the law create double jeopardy by allowing drunken drivers to be punished twice?

Suspected drunken drivers immediately have their license seized if they refuse a breath test, or if the results indicate a blood-alcohol level above 0.10 percent. Later, in court, they also risk jail time and fines.

Does the law allow unequal treatment of drunken drivers?

Defense attorneys claim prosecutors have too much discretion to skirt new mandatory minimum sentences.

Authorities say both arguments are flawed because driving is a privilege rather than a right, and courts in Washington and other states have upheld similar sentencing schemes.

In the interim, Austin has imposed stays in all of the city and county drunken-driving cases before him, effectively freezing further prosecution.

They may stay frozen for a year or more.

No matter how Austin rules, both sides say they will appeal the decision to the Washington Supreme Court.

The high court is poised to settle one thorny issue: the adequacy of warnings by police to suspected drunken drivers before conducting a breath test.

The standard warning state troopers and local police give motorists before asking them to submit to the breath tests talks about the penalties for not taking the test. It does not detail some of the administrative and criminal consequences that could occur if the person does take the test.

Authorities say motorists are assumed to give their permission for testing when they apply for a driver’s license and use state highways.

Starting Friday, when an “improved” drunken driving law takes effect, some of the controversy should end. It comes with some of the more specific language requested by defense attorneys.

Bellevue attorney Doug Cowan blames the current law on “the hysteria that is associated with this offense. Every few years, the Legislature doesn’t just tinker with it, it does a major overhaul.”

“It’s a shame,” agreed Spokane County Assistant Public Defender Molly Campbell, “because the old law was working well.”

, DataTimes