COA-III released an opinion on Oct. 15, 2026, in State v. Lorenzo – The opinion is unpublished, which isn’t surprising since the topic is pretty ordinary, but this is a case which illustrates a decent example of the operation of the Spoilage Doctrine in a typical Youngblood claim.  So I would keep this one in your back pocket.  Slip opinion -> 410901_unp.pdf

D is arrested for attempt to elude LEOs – during the high-speed pursuit, D was driving his BMW on the shoulder to pass vehicles.  LEOs deployed spike strips causing the tires to “disintegrate” but D persevered and continued to drive on his rims reaching speeds of 105 mph.  D eventually lost control of the BMW and wrecked on an embankment.  D went rabbit but didn’t make it too far before he was apprehended.  A tow company took custody of the BMW and towed it to their lot.

During the pendency of the case, D filed a motion compelling the tow company to preserve the BMW and filed a motion to permit an independent forensic mechanical inspection.  Shortly thereafter, the State and the D learned that the tow company had previously destroyed the BMW and all of D’s personalty contained therein (all prior to these motions being filed).  D was convicted at trial and appealed asserting a claim under State v. Wittenbarger and due process under art. I, sec. 3.  This is the WA analog to a Youngblood claim.

A Youngblood claim specifies that evidence spoilage results in a due process violation where the State fails to preserve, 1) material, exculpatory evidence; OR where the State fails to preserve 1) “potentially useful” evidence and does so in 2) bad faith.  Here, the State conceded that the BMW was “potentially useful” evidence but D was unable to provide evidence of “specific knowledge of the evidence’s exculpatory value at the time of destruction” (bad faith).  Conviction upheld.

I used to get these all the time.  If you have a good faith judge, this is often a loser of an argument mainly because exhibiting “bad faith” is a pretty high bar.  If you ever see these in muni or district court, they’ll usually fail on both standards – defense will never be able to demonstrate that the evidence was material and exculpatory and will always present the case that it was “potentially useful”, and they’ll never be able to show bad faith on the part of the government (at best, they can show negligence…which doesn’t cut the mustard unless the evidence is material and exculpatory).

Announcement - A Minor Change in your Washington TSRP Team

WA Traffic Safety advocates, Brad here.  We have some bittersweet news to share with you.  After some great deliberation and balancing family interests, I have accepted a position with the US Attorney's Office and will be leaving our prosecutor prophet duo at the beginning of November.

This decision wasn’t an easy one – serving as one of your resources for traffic safety enforcement and litigation training is a rewarding and invaluable one.  Our peers at DOJ just hit me at the right time with the right offer which would ultimately better accommodate my family's long-term plans.  While serving in this position, I’ve made a lot of good friends both here in WA state and across the country and I won’t disappear altogether, I'll just be arguing in a different courtroom.  Keep an eye out for me at our Traffic Safety Webinar Wednesdays and other national litigation training offerings.

Michelle and I have endeavored to avoid any interruption in our service and as it looks right now, obligations will be covered (including fall bootcamp).  After October 2026, Michelle will continue to fight the good fight, keep the defense at bay, and preach common sense traffic safety as the WA TSRP.  We’ll hopefully have a replacement for my gig shortly after.  Don't hesitate to contact Michelle with your support, litigation, and training requests.

Thank you all, stay vigilant, hold the line, and keep-up the good fight!

Feel free to keep in touch via phone, email, or LinkedIn

Brad

Your 2026 FALL TSRP NEWSLETTER IS LIVE!

DOWNLOAD YOUR COPY HERE

IN THIS EDITION:

• In the News – Chaos and E-bikes!

• Legal Hot Topics - Cross Enforceability and Case Law

• State v. Sliger - We Have a Decision!

• Training Announcements – Fall Bootcamp announcement, ARIDE, etc.

• A New DRE Class

There are several ARIDE classes scheduled for fall and winter 2026 in various locations around the State. 

TSRP Michelle Rutherford will be the legal instructor at the Whatcom County ARIDE on September 28-29, 2026. We are applying for 2 CLE credits for the legal module. Attendance is free. 

Information on additional ARIDE Classes is available on the WSP training site and is updated regularly: Impaired Driving - Training - Washington State Patrol. 

Your Washington TSRPs strongly encourage all Prosecutors to attend advanced trainings. Prosecutors are permitted to attend ARIDE with permission from course organizers when space is available. 

In Washington, collision fatalities from drug impairment or poly-substance abuse now outnumber collision fatalities from alcohol only. Being successful in traffic enforcement requires additional knowledge and expertise of drug use and abuse, including spotting signs of impairment and articulating that for a jury. ARIDE training is a great first step toward building that knowledge base for all law enforcement officers and prosecutors. 

Thank you,

TSRPs Brad and Michelle

The Washington Supreme Court just released their opinion in the State v. Sliger case concerning breath alcohol foundation under RCW 46.61.506. 

Sliger was involved in a collision with a dirt bike where the rider died as a result. He admitted consuming alcohol prior to the collision. During breath test process, the operator asked whether he had a foreign substance in his mouth and Sliger said no. The operator then did a visual mouth check and observed small strands of tobacco in Sliger's teeth. (Sliger previous spat out the chew). The operator made note of this and proceeded with the breath test. The result was over 0.08g/210L of breath. Sliger was charged and later challenged the trial court's denial of his motion to suppress the breath test based on an allegation that he had a foreign substance in his mouth. **Note, this case was on discretionary review of the pretrial ruling, which is an unusual procedural posture.**

The Washington Supreme Court reviewed the foundational requirements under RCW 46.61.506 related to foreign substances. Under WAC 448-16-040, “[a] determination as to whether a subject has a foreign substance in his or her mouth will be made by either an examination of the mouth or a denial by the person that he or she has any foreign substances in their mouth.” The term “foreign substances” is not defined in the statute or regulation.

In the opinion, the Washington Supreme Court disagreed with Sliger that small strands of tobacco are a foreign substance.  "Interpreting “any” to mean any quantity of a foreign substance is not a reasonable interpretation of the statute considering the underlying policy and purpose of the statute," which was to curtail impaired driving and allow the fact finder to weigh the breath test evidence." The Court recognized that the Legislature favors swift and certain consequences for impaired driving. 

In accordance with Fernandez, a more reasonable interpretation is that “any foreign substance” refers to any kind of foreign substance capable of impacting the

reliability of the test results." Both the operator and the BAC tech testified at the motion hearing that the small strands of tobacco would not impact the reliability of the breath test.

However, Prosecutors need to heed this warning at the end of the majority opinion: "To be clear, the State does not need to provide expert testimony in every case to meet its prima facie burden for admissibility if an officer observes no foreign substance or the defendant denies the presence of a foreign substance. However, in cases involving the debatable presence of a foreign substance, the State makes a prima facie case only by presenting an expert to attest that the substance does not impact the reliability of the test."

Ultimately, the holding was that the breath test is admissible because the State met the prima facie standard under the facts of this particular case.

Your TSRPs, Brad and Michelle will be here for you if you have questions on this or your impaired driving cases generally. Feel free to reach out any time. 

 

Fall 2026 TSRP Prosecutor Bootcamp - EASTERN WA

Who Should Apply?

Criminal Prosecutors currently handling Impaired Driving cases, early career or needing a refresher

Course Objectives:

Provide criminal prosecutors with the skills and training to effectively evaluate, prepare and try misdemeanor drug and alcohol DUI cases; argue motions; defend against common defense tactics; and build a strong and organized prosecution career.

A Non-Exhaustive List of Potential Topics include:  Legal Landscape, IID Enforcement, The Breath Test Instrument, Legal Foundation in BrAC cases, Legal Foundation in Tox cases, Expert Witnesses, Defense Challenges, Foundations and Objections, Motions Practice, Ethics, Intro to Voir Dire, Creating a Trial Binder, Cross-Examination, SFST's, a Wet Lab

Details

Cost:  Attendance is Free!

Format:  Five-Day classroom instruction format:

Start: November 2, 2026 11am

End:  November 6, 2026 12pm

Location:  Airway Heights Fire Dept. (1149 S. Garfield Road, Airway Heights, WA 99001)

Hotel Suggestions (at a government rate) are available on the event page

CLICK HERE FOR DETAILED INFORMATION

All attendees receive CLE credits, course materials, and a completion certificate

Seattle Litigation of Regional Significance - We Have a Ruling!

DOWNLOAD THE MAJORITY AND CONCURRENCE RULING HERE

Seattle v. In Re Delta-9 THC Testing and Analysis

"On Sept.15, 2025, Seattle Municipal Court (SMC) Presiding Judge Anita Crawford-Willis issued an order on criminal motion regarding Delta 9 THC testing and analysis, having determined this issue to be of citywide significance per Seattle Municipal Court Local Rule, SMCLR 8.2.4. Per the order, an en banc panel of SMC Judges Damon Shadid, Andrea Chin, and Catherine McDowall" presided over an evidentiary hearing June 1-5, 2026, to determine: 1) whether the defendants whose blood was analyzed using the Delta 9 THC testing are entitled to a Frye hearing, and 2) regardless of admissibility under Frye, the results of the Delta 9 THC testing are sufficiently reliable under ER 702 to be admitted at trial.  See En Banc Rulings - Courts | seattle.gov. The panel heard from three defense experts followed by City experts: Amanda Black, State Toxicologist; Brian Capron, Assistant Lab Division Commander; Chris Heartsill, NHTSA Midsouth Regional Toxicology Liaison; and Dr. Matt Slawson, NHTSA Northwest Regional Toxicology Liaison.  This litigation was handled by your TSRPs Bradley Lane and Michelle Rutherford as well as Lead Assistant Seattle Prosecutor, Chris Karr.  On July 21,2026, the panel reached a decision and released two rulings, a majority ruling and a concurrence, summarily denying all defense claims.  This litigation potentially affected 100's of THC DUI cases charged in the city of Seattle.  Due to the robust record and pleadings, your TSRPs have assembled a litigation package that you can use in your own court to combat this challenge - you don't need to have another Frye hearing on this issue!  Due to the size of the litigation package and the transcripts, your TSRPs can send these materials to you directly so reach out! Cheers! Brad and Michelle

National Traffic Law Center recently released the updated monograph, Crash Reconstruction Basics for Prosecutors. Reflecting nearly two decades of technological advancement since its original publication, this new edition incorporates developments in vehicle forensics and infotainment systems and examines the legal challenges for prosecutors and law enforcement. The updated monograph is intended to better prepare prosecutors to handle vehicular crash cases with confidence and effectiveness.

 

DOL has released new communications regarding how they are handling legislative changes to Deferred Prosecution and some license suspension rules. These have also been released to other stakeholders: courts, probation departments, and defense attorneys. 

Get a copy of DOL Communications HERE

YOUR SPRING 2026 TSRP NEWSLETTER IS LIVE!

IN THIS EDITION:

• In the News – Unicycle DUI!
• Case Law and Legislative Updates
• Private Tox Lab Analysis – Call for Workgroup Members
• Training Announcements – Bootcamp wrap, DRE School, and more
• Updates from our Law and Justice Partners

DOWNLOAD YOUR NEWSLETTER HERE