The drunk-driving charge against King County Council member Jane Hague may have to be proven in court without what might be the most incriminating evidence against her: the results of a breath-alcohol test.
Sparky Somerset
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Though few noticed, it turns out her breath readings of .13 and .14 (.08 is legally drunk in Washington) were suppressed by the court at her July 30 arraignment, according to Hague attorney Doug Cowan. [NOTE: This story has been corrected to show that Hague's highest breath reading was .14, not .16 as originally stated.]
Cowan says that a judge's ruling at the arraignment will preclude the test results from being used in a trial. He thinks loss of this "significant" evidence against his client will make it more difficult for prosecutors to prove the Republican council member was intoxicated when arrested by a King County Sheriff's deputy in June.
"A prosecutor can still argue to have the results reinstated," says Cowan, "but for now, they're no longer part of the case." The King County Prosecutor's Office handled the case at arraignment, but, due to a conflict of interest, has turned the case over to Redmond city prosecutors.
Lynn Moberly, prosecutor for Redmond and other Eastside cities, said Tuesday she was unaware results were suppressed. A brief notation in the court docket (a synopsis of case events) shows that the evidence suppression was done for "DOL [Department of Licensing] purposes" only, so that Hague wouldn't immediately lose her license. (DUI suspects who blow .08 or more can automatically lose their licenses for 90 days.)
An audio recording of the Bellevue District Court arraignment—during which Hague was referred to only by her married name, "Jane Springman" and "Miss Springman"—indicates the order was signed in court. A prosecutor is later heard saying, "Your honor, stupid question," and asks if the order doesn't have broader implications, but is told by Judge Peter Nault that it doesn't. "Don't worry, no one's gonna play that game with us," he says.
However, as Cowan and another attorney with knowledge of the case say, the ruling effectively suppressed the breath results from being used as evidence. If so, says prosecutor Moberly, "I don't think I need that evidence anyway. It certainly would make a difference, but there is other evidence that is very strong." That could include the testimony of at least two and perhaps more county and state officers who witnessed Hague's actions that evening, and who have described her as clearly drunk and belligerent.
In signing at least the limited order, Nault apparently agreed with Cowan's argument that the standard warnings about the consequences of submitting to a breath test—in this instance administered by the Washington State Patrol—can be misleading. Nault could not be reached for comment but Cowan and other court observers say he is one of several local judges who have regularly ruled in the past that the warnings fall short, legally. (Court records indicate Hague asked for another judge to hear her case and wound up with Nault.)
"Judge Nault has ruled previously that the consent warnings are invalid, as have a number of other judges," says attorney Cowan. "The problem is that [the warning] infers things that aren't necessarily so, and misleads a defendant as to the consequences of taking a breath test."
The implied consent warnings given to a suspect after arrest for DUI state that a person's driver's license can be automatically revoked for at least a year if the test is not taken, and that refusal can be used as evidence in court. DUI attorneys say those precautions lack clear wording and emphasis to show that, whether the test is taken or not, a person will be prosecuted anyway, and that such refusal could be a cornerstone of a prosecutor's case. The warning also does not clearly convey financial impact, attorneys say, such as the cost of high-risk insurance a revoked driver will need once a license is reissued.
"Breath tests are potentially significant evidence against a client," said Cowan. "The public believes that because you have a .08 reading, you're guilty, which is not so. Without this factor, the trial can be expedited; you don't have to deal with the science and related issues." Implied consent "is the most litigated issue of any kind in the DUI field," Cowan adds. "The [county] prosecutor did not appeal Nault's ruling in this case," although Redmond prosecutors might raise the issue anew, he allows.
The consent issue has not yet been taken up by the State Supreme Court, Cowan says. Interim King County Prosecutor Dan Satterberg says, "I believe that's up on appeal right now," working its way through the system to eventually reach the high court, "but that can take a couple years." He did not want to comment on the Hague case since it is now in the hands of outside prosecutors.
Hague, 61, was arrested around 10 p.m. June 2 in her silver 1999 Mercedes driving erratically on Highway 520, heading to her Eastside home. Her husband Ed Springman, a longtime real estate developer and manager, was in the car with her. She had twice nearly hit a road way median, a deputy said, drawing his attention to her. She had to use both hands to exit the driver's door and failed physical and verbal sobriety tests administered at the scene, according to prosecutors.
