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Originally published Thursday, November 29, 2007 at 12:00 AM

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Judge tosses Hague's breath test in DUI case

The results of a breath test obtained from King County Councilwoman Jane Hague after she was pulled over for suspected drunken driving cannot...

Seattle Times Eastside bureau

Loophole in DUI law?

Defense attorneys argue that state law, as compiled in the Revised Codes of Washington (RCW), fails to warn drivers older than 21 that they also face punishment, regardless of their test readings. Here is the wording of the law, with the relevant passage in bold. Defense attorneys say because it refers only to a driver "under age twenty-one" in reference to the laws that could result in DUI violations, it fails to adequately warn older motorists.

"The officer shall warn the driver, in substantially the following language, that:

(a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and

(b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and

(c) If the driver submits to the test and the test is administered, the driver's license, permit or privilege to drive will be suspended, revoked, or denied for at least ninety days if the driver is twenty-one or over and the test indicates the alcohol concentration of the driver's breath is 0.08 or more, or if the driver is under age twenty-one and the test indicates the alcohol concentration of the driver's breath or blood is 0.02 or more, or if the driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504."

The results of a breath test obtained from King County Councilwoman Jane Hague after she was pulled over for suspected drunken driving cannot be used in court because she was not properly warned of the implications of consenting to the test, a judge ruled Wednesday.

The ruling will make it harder for prosecutors to win a conviction against Hague, who was arrested after a King County sheriff's deputy stopped her June 2 on Highway 520. Court records show Hague's blood-alcohol readings were 0.135 and 0.141 percent; the state's level of intoxication is 0.08.

But jurors in her trial will not be allowed to hear testimony on the readings after Wednesday's ruling by King County District Court Judge Peter Nault, which turns on the wording of the warning given to drunken-driving suspects before blood-alcohol tests are administered.

The portion of the warning that Nault found to be lacking pertains to what drivers are told can result once they submit to a blood or breath test. The warning indicates that drivers who are under 21 could lose their driving privileges if they are found to be in violation of two state laws pertaining to drunken driving but fails to provide the same specific warning for drivers 21 and older.

Defense attorney William Kirk argued Wednesday that the warnings would seem to apply only to drivers younger than 21. A properly worded warning would use language that made it clear that it pertained to all motorists, "regardless of age," he said.

"I have heard this argument quite a few times," said Nault, who said the warnings law-enforcement officers give in administering the breath tests are inadequate.

Lynn Moberly, special prosecutor in the case, said Nault's decision was "very disappointing." But she said it is possible to win a DUI case without using breath-test results.

"It makes it more difficult," she said, although officer statements and physical evidence still can be used at trial.

According to the charges, Hague was eastbound on 520 near the east end of the Evergreen Point Floating Bridge at 11:03 p.m. June 2 when a deputy saw her car nearly hit the median divider twice. The deputy stopped the car and called the State Patrol for assistance. Hague was arrested and taken to the Clyde Hill Police Department, where the breath test was administered.

Hague, 61, had said she had attended a charity dinner in Seattle where she had "a couple glasses" of wine and was returning to her Bellevue home when she was stopped.

Hague was charged with DUI under her married name of Jane Hague Springman on July 16. She pleaded not guilty July 30.

The argument used by Hague's attorney in seeking to exclude the test results isn't new and is among many that attorneys use to fight DUI prosecution, defense attorneys say. In fact, the law was revised in 2004 after several years of successful challenges to the breath-testing process.

But even the 2004 revision opened the door to challenges, including one that threw out the breath test of former Seattle Sonic Rashard Lewis after he was stopped for suspected drunken driving in October 2005 on Mercer Island. His argument, like that used by hundreds of other defendants, was that legislators had overstepped their authority in writing the law and leaving judges with little discretion in accepting the tests. Lewis eventually pleaded guilty to reckless driving.

"In the last three or four years, [blood-alcohol] readings have been suppressed about 50 percent of the time for various reasons, including implied-consent warnings," said Kurt Boehl, a Seattle criminal-defense attorney.

The state's implied-consent law, which is at the center of the Hague ruling, requires that anyone holding a Washington state driver's license must consent to blood or breath tests if an officer suspects intoxicated driving. Failure to do so could result in the loss of the driver's license.

The effect is that when people drive, they give up a right that would be applied in other crimes. That right involves constitutional provisions that a defendant doesn't have to incriminate himself and is innocent until proved guilty.

In a theft case, for example, police would have to get a search warrant to get samples of someone's blood. In a DUI case, a driver, through the implied-consent agreement, has acknowledged that it's OK for police to take a blood sample.

But Kirk, Hague's attorney, argued Wednesday that application of the implied-consent law depends on drivers agreeing to the tests "knowingly and intelligently" and after "having been fully informed of the consequences."

As written, Kirk argued, the warning given to Hague was incomplete and failed to fully document the consequences of allowing the test to be administered.

"The blame doesn't lie with the State Patrol," said Kirk, but rather with the language the Legislature adopted in 2004.

Also Wednesday, Nault approved a tentative schedule in the Hague case that calls for jury selection to begin Jan. 31 and a trial to be held Feb. 5-8.

During Wednesday's hearing Nault asked that the blood-alcohol readings not be reported by the media in order to comply with guidelines relating to the discussion of evidence before trial. The results were made public in August, however, and have been reported previously.

Hague was present in the Redmond courtroom but said nothing during the proceedings and left without comment. Hague, a Republican, won re-election over challenger Richard Pope earlier this month. Her council district includes Mercer Island, Kirkland and most of Bellevue.

Moberly, who was named a special deputy prosecuting attorney in the case Aug. 28 because of a potential conflict of interest involving the King County Prosecutor's Office, had previously asked for a new judge. Initially, Moberly gave no reason for the request other than to say she didn't think Nault would be fair and impartial. But in a subsequent affidavit she cited alleged irregularities in arraignment proceedings and a failure by Nault to follow court rules.

Nault denied Moberly's request Wednesday, saying she had failed to file the affidavit in a timely fashion.

State Patrol spokesman Jeff Merrill said he was not surprised by Nault's ruling, which he said was consistent with rulings the judge has made in other drunken-driving cases.

"We will continue to arrest impaired drivers wherever and whenever we find them," Merrill said. "At some point society needs to conduct an analysis of the process and see where the breakdown is in the judicial process."

Peyton Whitely: 206-464-2259 or pwhitely@seattletimes.com

Seattle Times staff reporter Jennifer Sullivan contributed to this report.

Copyright © 2007 The Seattle Times Company

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