New Washington law aimed at reducing DUI backlog ‘helpful in theory’ but could be ineffective, Spokane County prosecutor says

OLYMPIA – A new state law aimed at reducing delays at the state toxicology lab and erasing a backlog of more than 16,000 cases was signed into law by Gov. Bob Ferguson this week.

Spokane County Prosecutor Preston McColla isn’t sure, however, if the legislation will make a meaningful difference in reducing the backlog or if it will make local agencies reliant on private funding to improve the turnaround time in DUI cases.

Under the previous law, the analysis of a blood or breath test had to be done according to methods approved by the state toxicologist and by someone who possesses a valid permit.

Legislation approved this year now allows tests to be analyzed by outside labs certified under certain international standards.

“The state toxicology lab is experiencing significant backlogs with ever -increasing numbers of DUI cases,” Ferguson said Wednesday.

The new law, which passed both houses unanimously, allows local jurisdictions to contract with certified or accredited labs for blood test analysis.

Ferguson said the bill would provide relief “while we work to provide long-term resources” at the state’s toxicology lab.

A December report from the Washington State Patrol found that the state toxicology lab had a backlog of more than 16,800 samples waiting to be analyzed. According to the report, since 2014, the lab has had a 59% increase in submissions and receives more than 18,000 requests for analysis each year.

In an interview Thursday, Spokane County Prosecutor Preston McCollam said the delay in getting results from the state toxicology lab “is a big issue, not just for Spokane County, but statewide.”

“They have a bottleneck, a backlog, and that creates issues at the county level, when cities and counties, whenever you have blood draws that need to get processed,” McCollam said. “We all have to deal with it here at this level, and it creates delays in cases.

“Cases will often get dismissed at the beginning or simply not filed until a later date, because we don’t have the evidence to present at trial.”

While he said he was “generally in favor” of any legislation that would reduce the state backlog, McCollam said the legislation passed this year “misses the mark a little bit.”

“It’s helpful, but it’s not a solution to the problem,” McCollam said. “Allowing us to go to outside entities for blood testing sounds good in theory, but there’s no funding that comes with that.”

McCollam said that under the legislation, if a jurisdiction goes to a private lab for test analysis, it bears the responsibility for both the testing and transporting witnesses to trial to testify. While sending a test to a lab could cost around $300, the costs can be much higher.

In a recent case, the prosecutor’s office looked to send a sample to an outside lab for testing, and found it would cost up to $10,000 to transport witnesses from the lab for testimony in trial. Depending on the procedure, McCollam said he may need to fly five or six people to Spokane County for the trial to testify on the lab’s process, compared to one or two from the state lab.

“In a sense, it’s helpful in theory,” McCollam said. “But it defers the burden onto the local of government instead of the state level of government. So it adds an unfunded option onto the locals, which is a little bit frustrating.”

Although the legislation does not provide additional funding, it does provide local jurisdictions the option of accepting private donations from nongovernment entities to help pay for the costs of outside testing. The payment model is one McCollam said “in theory” could be used in Spokane County, though he worries about law enforcement having to “pass the hat” to raise private funding.

“But the idea of your local government, your local law enforcement soliciting donations for a necessary function frankly seems absurd to me,” McCollam said. “I’m all in favor of it, but I don’t like the optics of it, personally, as a county prosecutor to say ‘Hey, we can prosecute these cases, we can prioritize them, only if you donate.’”

McCollum said he would like to see the state take a similar approach to reduce the delay for toxicology testing as was taken to address a backlog of more than 10,000 sexual assault kits.

“This backlog issue is not unique to the tox lab. We also have a backlog issue at the state crime lab on every level of crime,” McCollum said.

“Whether you’ve got pieces of evidence that need to be tested in a murder case, a rape case, violent assaults, we’ve got delays that are months long. And it’s not the fault of the lab, they’re just understaffed and underfunded for the level of service that we expect from them.”