WA Crash Prosecutors - We have supreme court opinion in our Div-I case, State v. Wasuge, and unfortunately, they unanimously affirmed the COA panel opinion - no biggie though! This is a Physical Control affected-by case involving toxicologist testimony of "burn off", the AMA recommendation for a 0.05 BAC and some broader implications on Retrograde Extrapolation testimony as that testimony relates to generalities without a specific biographical nexus to qualities possessed by defendant. The court also addressed the Miranda custodial implications that we see in every single one of these "slumper" physical control cases.

Regarding the toxicology testimony, the supreme court didn't disturb the Div-I panel's opinion that it was improperly admitted though they did find it was harmless given the strength of the state's case.  I will say that the supreme court describes all of the other evidence as "properly admitted" evidence which implies that the tox evidence was improperly admitted, so they basically conclude that it was improper without explicitly announcing that ruling.  The court then turned to the Miranda custody argument and found that the officers' interaction with defendant was permissible under the community caretaking exception until they had the defendant exit the vehicle, and at that point the officers' continued detention was supported by reasonable articulable suspicion.  DUH!

This changes nothing for us since the Div-I opinion was released.  Again - to avoid Wasuge concerns on this sort of tox testimony, you're going to need to introduce some biographical information to make it relevant - think CCDL or a line of questioning establishing that, "this defendant is of the stature and build consistent with the average male for which general burn-off calculations apply".  Also, we can generally elicit tox testimony as to the effects of alcohol on the body at various BAC's without invoking per se values and legislative presumptions, something the Div-I panel took issue with.  If the defense argues that this case precludes us from using quantitative tools for BAC calculation, that's flat-out wrong.  Thread the needle and brief it.

If this opinion does anything for us, it makes clear that our usual "slumper stop" is all constitutionally permissible so long as your officer testifies as to the transition between the community caretaking or public safety exception and the RAS investigatory detention.

READ THE OPINION HERE

Let us know if you have any questions

- Cheers!

Brad & Michelle

The Washington Traffic Safety Commission has a new tool to help the community and enforcement professionals identify how Washington classifies different e-mobility devices, where they are legal to ride, and who is authorized to use them. 

The e-ride guide is live! Here's the link:

https://wtsc.wa.gov/erideguide/

Check it out and let us know what you think!

-Michelle and Brad

A new case interpreting RCW 9.94A.753(3) has just been released by Division I and addresses restitution to insurance companies. This is likely to be something Prosecutors needs to be aware of for impaired driving / vehicle collision related cases. We've seen public defense routinely ask to exclude insurance companies from restitution orders based on the Statute. Division I has just clarified the findings required to support such a motion, including consideration of future ability to earn wage/pay restitution. 

Restitution – Before waiving restitution to an insurance company under RCW 9.94A.753(3), a trial court must find both that the defendant does not have a current ability to pay and that the defendant will likely not have a future ability to pay.  Here, because the defendant had no physical or mental debilitation that would prevent work in the future, the court did not err in ordering restitution to the insurance company.  State v. Morgan, No. 86639-7-I (Dec. 29, 2025, Published in part).

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• In the News
• Hot Topics in the Law
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Enjoy!

Brad & Michelle

On December 4, 2025, the Washington State Supreme Court published Order No 25700-A-1679 which amends the language of rule CrR/CrRLJ 3.2. The Court made some modification to the language proposed by the defense organizations pushing for the rule change. The "interfering with the administration of justice" language has been eliminated and replaced with more specific conduct: "will seek to intimidate or threaten a witness, victim, or court employee, or tamper with evidence or violate a civil or criminal protection order, criminal no contact order, or family law restraining order, and/or conditions of release that protect the safety of alleged victims, witnesses, and the community. The change is effective upon publication.

It would be wise for prosecutors to amend the language used in court to fall within the new rule language where applicable. 

but wait.....there's more!

On the same day, the Washington State Supreme Court also published Order No 25700-A-1676, which provides notice under GR9(g) of suggested amendments to the same rule for 2026. This proposed amendment is also offered by the same defense organizations. The proposal attacks judicial discretion with regard to the meaning of "likely failure to appear." The proposal reads in part: 

Purpose: Replace the CrR/CrRLJ 3.2 standard of “likely failure to appear” with “high likelihood of willful flight from prosecution”; require at least one failure to appear before bail can be imposed under the newly amended “willful flight” prong; enact a $200 cap on bond and warrant amounts for most misdemeanor offenses when a finding is made under the newly amended “willful flight” prong; amend CrR/CrRLJ 2.2 regarding the failure to appear and administration of justice prongs; in both CrR/CrRLJ 3.2 and 2.2, enact strong presumption for deposit of a sum not to exceed 10% of the set bail with the clerk of the court. Comments may be sent to the following

These changes are not yet approved. The Supreme Court has called for comment on the proposal. Comments are due by April 30, 2026. addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

Please consider making your voice heard and submitting comment on the proposed rule change. 

Information on all Rule-Related Court Order is available on line at Courts.wa.gov. 

~TSRPs Michelle and Brad

Notice From DOL Regarding CCDRs

Currently DOL is experiencing a backlog in processing CCDR requests. We are asking for your assistance in helping eliminate duplicated requests so we can catch up. As of today, we are working on CCDRs received on November 12, 2025 with 1,320 requests in the queue.

If you requested a CCDR after November 12, 2025, please do not send an additional request. We are working hard to get these caught up and duplicated requests add processing time.

If you have questions or concerns, Contact Carla Weaver at DOL below:

Carla Weaver

Law and Justice Program Manager

Department of Licensing | dol.wa.gov

cweaver@dol.wa.gov

Cheers!  Brad & Michelle

MORE INFO FOUND HERE

 Kratom vs. Gas Station Heroin

For years we've seen Kratom products on the convenience store counters of our more rural areas here in Washington but recently - and it might be anecdotal for me here in Seattle - we're seeing it pop-up in our dry bottle shops and boutique "lifestyle" beverage stores as well.  Some recent pieces in the San Francisco Chronicle and other publications have raised the alarm when comes to both Kratom products and those derived from 7-OH (or what we call "gas station heroin").  Having access to synth drugs at the convenience store isn't a new concept.  I remember back in 2007ish when I lived in North Carolina, many of the gas stations in my neighborhood sold Spice or some other synth drug right next to the hangover cures, Doublemint Gum, and snake oil ED pills.  What's important to note here is that these products are mostly unregulated and the labels shouldn't even be trusted.  Here's a great piece in the Free Press about the battle between the Kratom lobby and the 7-OH lobby for market share and the noise obscuring the potential health effects of each.  Roadside convenience doesn't equal roadside safety.

Read the Article HERE

ACCESS THE REGISTRATION LINK HERE

Join state TSRP, Bradley Lane, for his biannual update on recent legislation and case law developments which might affect impaired driving litigation and investigations here in Washington state.  Brad routinely presents this update to many audiences throughout the state from impaired driving enforcers, prosecutors, political appointees, and executive-level impaired driving stakeholders.  This event is hosted by your State Traffic Safety Resource Prosecutor, Bradley Lane, the Seattle City Attorney's office, the WA Traffic Safety Commission and is pending-eligible for WSBA CLE credit.

This is virtual event (unless you're present at SCAO) - you will receive the TEAM's webinar link upon successful event registration

DOWNLOAD YOUR FALL 2025 NEWSLETTER HERE

IN THIS EDITION:

• Your New DUI Bench Book is Out!
• Can You Get a DUI on That?
• Upcoming Training Opportunities & National Webinar Series
• Proximate Cause in the Deliberative Process
• Updates from our Law and Justice Partners
• Resources and Manuals

Enjoy!

Brad & Michelle