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