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Can a prosecutor mention the results of the breath test in opening statements?

Posted by Nathan Webb | Apr 06, 2016 | 0 Comments

Having completed nearly 100 jury trials I can tell you courts make it very very easy for prosecutors to prove their cases, specifically, when it comes to DUI.  It kind of reminds me of the way Tom Hanks' character was treated in Bridge of Spies, it is nearly that bad.

Today the Washington Court of Appeals (Division I) upheld a conviction wherein the city prosecutor had mentioned in opening statements to the jury the results of the breath test of the defendant (City v. Spenser).  The defense attorney asked for a mistrial which was denied and the appellate court upheld that decision.  It begs the questions that once the evidence has essentially been admitted by way of mentioning the results and then having an "expert" for the city come in to talk about the machine, aren't most judges just going to let it in regardless of the foundation requirments.  Don't the judges want to basically back up what has been said, well the short answer is they shouldn't but they, unfortunately do.  It is easier for a murderer to get a fair trial than a DUI defendant, that is not hyperbole, I can assure you.

In this recent case the evidence was admitted, but what about the case where the evidence isn't admitted?  I assure you that doesn't happen very often, because there is a script the prosecutor follows to "lay the foundation" and under the Washington Pattern Instructions for the Court (WPIC) and Revised Code of Washington, the laying of the foundation is a joke.  Even when there are clear violations the standard answer from the court is "it goes to the weight not admissibility."  So a defendant must prove the prosecutor didn't lay the foundation rather than them proving they did.  

We are still fighting the good fight for our clients and will continue to do so despite the judicial systems clear bias against the DUI defendant's due process rights.  

Call today if you or someone you know has been charged with DUI. (425) 522-4200

About the Author

Nathan Webb

Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by


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