New DWI/DUI Law Unconstitutional?

Arresting and convicting drunken drivers is important to reducing alcohol-related traffic crashes and fatalities.

Alcohol breath testing machines have long been used to help identify drivers who may be intoxicated. Unfortunately, the estimates of blood alcohol concentration (BAC) generated by Breathalyzers and other such machines tend to vary at least 15% from the actual BAC as measured by blood tests. Consequently about one-forth of drivers tested can have an alcohol breath test result higher than their actual BAC. 1

This means that drivers who are arrested on no other evidence than an alcohol breath tester reading are at risk of being falsely found guilty of DWI.

A thoughtful observer has emphasized that

The law presumes every citizen innocent, even when charged with DWI. A judge violates the judicial oath when he or she presumes that a citizen charged with DWI is guilty, gives greater weight to the state's evidence, is predisposed to find for the state, or looks for ways to assist the state in the prosecution of a case….

The law imposes the highest burden of proof in criminal matters -- proof beyond a reasonable doubt of every element of the offense. Judges who lower this high burden in DWI cases make it probable that innocent people will be convicted, robbed of their liberty, their property, and their rights. 2

However, a new state law in Washington actually instructs judges to violate their judicial oath of impartiality! They are told to “assume the truth” of the prosecutor’s evidence and to judge it “in a light most favorable to the prosecution or the department” in deciding whether alcohol breath test readings can be used in trial.

This new law “is essentially telling the judge who to believe in the courtroom” says attorney Ken Fornabai. “It’s a little like having a crooked referee.”

The law “threatens the court’s integrity” by making judges favor one side over the other, instead of remaining neutrality says lawyer Linda Callahan. She says the law essentially eliminates any chance to challenge the validity of breath test results. These readings can easily sway jurors in spite of their frequent invalidity. Because ”it’s ‘guilt by machine,’” she says it’s important to be able to challenge an invalid result.

The DWI law was passed “to ensure swift and certain consequences to those who drink and drive.” (Actually, it’s not illegal to drink and drive; it’s illegal to drive if impaired by alcohol.)

A number of judges in the state say the law, which will be challenged in the Washington State Supreme Court, is unconstitutional. The controversial law dictates that “In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecutor’s or department’s evidence and all reasonable inferences from in a light most favorable to the prosecution or department.” 3

It’s important to convict drunken drivers but innocent drivers shouldn‘t be convicted because they are diabetic, have a fever, or on the Atkins diet and therefore register a falsely high breath testing machine reading.


  • 1. See Alcohol Breath Analyzer Accuracy . One veteran of the courts says that the breath tester is “a piece of crap” (Wright, Gary , Alexander, Ames, and Mellnik, Ted. “Judges are not following the law.” Charlotte Observer, August 9, 2004).
  • 2. Rawls, Eben. The Intoxilyzer isn’t perfect: Judges in DWI trials must stand for justice despite pressure from public. Charlotte Observer, August 20, 2004.
  • 3. Johnson, Tracy. New DWI law tossed out by judges across the state. Seattle Post-Intelligencer, August 5, 2005.

Filed Under: Drinking and Driving